Div. I. PART III. acts of his colleagues, though there be no such clause in the trust instrument (d); and if there be a breach of trust on his part, the clause in question will not apply (e). CHAPTER I. The liability of a trustee for his colleague's acts discharged by the acquiescence of cestui que trust. Or by the act of the cestui que trust, treating the defaulting trustee alone as liable. Trustee implicated in breach of of co-trustee The right of the cestui que trust to charge one trustee for the acts of his colleague may be waived by acquiescence; but this defence should be raised by the trustee's answer, and the fact of acquiescence must be established by sufficient evidence (ƒ). And where the cestui que trust has entered into any compromise or arrangement with the trustee, by whom the trust fund has been lost, and the rights of the other trustees to be indemnified out of the assets of the defaulting trustee are varied or affected by that arrangement, the cestui que trust will be held to have waived the remedy, to which he was previously entitled against the other trustees. For instance, where the cestui que trust executes, or authorizes the other trustees to execute, a deed of compromise, as one of the creditors of the defaulting trustee; and by that deed the other trustees are precluded from putting in force a bond, given by the defaulting trustee for the amount of the trust fund, the cestui que trust could not afterwards proceed against the other trustees for the breach of trust (g). But to produce this result the cestui que trust must act with full knowledge of all the circumstances, and of his own rights as against the other trustees (h). It is almost unnecessary to add, that where a trustee is so far implicated in a breach of trust committed by his co-trustee, that he is trust by default compelled to make good to the cestui que trust the loss thus occasioned, although he has not benefited by, or been directly concerned in, the misappropriation of the property, he will be entitled to stand in the place of the cestui que trust as against his co-trustee, and to claim from him or his estate the amount, which he has thus been compelled to pay (i). has a remedy over against him. Where one The cases, in which one of several trustees, who are all liable for a trustee may be breach of trust, may be sued alone by the cestui que trust, will be the subject of consideration in a future chapter (k). sued alone for a breach of trust. Contribution amongst the co-trustees. Where co-trustees are implicated in a joint breach of trust, and the whole amount of the loss is recovered by the cestui que trust from one or more of their number, those trustees, who have been compelled to pay may unquestionably enforce an apportionment or contribution from the others by means of a bill filed for that purpose (1). (d) Leigh v. Barry, 3 Atk. 584; see Dawson v. Clark, 18 Ves. 254. (e) Underwood v. Stevens, 1 Mer. 712; Hanbury v. Kirkland, 3 Sim. 265; Williams v. Nixon, 2 Beav. 472; Mucklow v. Fuller, Jac. 198. (f) Lincoln v. Wright, 4 Beav. 427; Brice v. Stokes, 11 Ves. 319. (g) Walker v. Symonds, 3 Sw. 1. (h) Walker v. Symonds, 1 Sw. 1, 73. Beav. 427. (k) Post, Div. II. Ch. IV. Sect. 2 [Suits by and against Trustees]. (1) Wilson v. Goodman, Vice-Chancellor Wigram, 22nd January, 1845, MS.; see ex parte Shakeshaft, 3 Bro. C. C. 198; Knatchbul v. Fearnhead, 3 M. & Cr. 124. CHAPTER II. OF THE POWERS AND DUTIES OF TRUSTEES AS BETWEEN THEM AND THE CESTUIS QUE TRUSTS. I.-Of Trustees of a Dormant Estate. II.-Of Trustees of an Estate clothed with Active Duties. PART III. Div. I. SECT. 1. SECT. 1.-Of Trustees of a Dormant Estate. UNDER this head it is proposed to consider that class of trustees, CHAPTER II. who have no express active duties to discharge with relation to the trust estate. Such as,-1st, Trustees, in whom a mere dry legal estate is vested.-2nd, Trustees to preserve contingent remainders.And 3rd, Trustees of terms of years, attendant on the inheritance. I.-Of Trustees of a mere Dry Legal Estate. Wherever the person, who is equitably entitled to any property, Who is a mere takes absolutely the entire beneficial interest, the person in whom the dry trustee. legal estate is vested for his benefit, may be said to be a mere dry trustee. As for instance, where the legal estate is vested in A. his heirs and assigns, in trust for B. his heirs and assigns. And an estate, not originally a mere dry trust, may become so in the event.-As where a mortgagee in fee is paid off by the mortgagor, but no reconveyance is executed.-Or where an equitable estate in fee simple is limited in remainder to B., expectantly, upon the determination of some particular or partial beneficial estate, or interest, which is afterwards determined, or satisfied. It was at one time not unusual for purchasers to take a conveyance of the legal fee to a dry trustee, as a mode of barring the dower of their widows. For according to the law, previously to the statute 3 & 4 Will. IV. c. 105, no dower attached upon a mere equitable estate of inheritance. The law in this respect has been altered by that act, which makes widows dowable out of trust estates. Therefore no such advantage can in future be gained by taking a conveyance in that manner. duties of such a trustee. The powers of a mere dry trustee over the trust estate are very The powers and limited, and his duties simple and obvious. At law he is regarded as the real owner, and his name must be used in any action, or other proceeding, affecting the title to the property (a). But in equity the cestui que trust is looked upon as the person really entitled, and the (a) Goodtitle v. Jones, 7 T. R. 47; Wake v. Tinkler, 16 East, 36. Div. I. CHAPTER II. SECT. 1. His duties threefold. PART III. trustee will be restrained by injunction, from using his legal powers otherwise than for the benefit of the cestui que trust (b). It has been seen, that the duties of the trustee are principally threefold, in conformity to those of the ancient feoffees to uses.-1st, To permit the cestui que trust to have the beneficial enjoyment of the estate, by receiving the income, and other profits arising from it.-2nd, To execute such conveyances and dispositions as the cestui que trust may direct.-3rd, To defend the title of his cestui que trust in any court of law or equity, or at any rate to suffer his name to be made use of for that purpose (c). To convey as directed by cestui que trust. His name to be at law. The right of the cestui qe trust to require a conveyance or transfer of the legal interest from his trustee, and the duty of the latter to comply with such a requisition, have been already discussed at large in a previous chapter, as well as the extent and nature of the liability of the trustee for any expense occasioned by his refusal (d). The interest of cestuis que trusts is to some extent recognized by used in actions courts of law in actions by a trustee as the nominal plaintiff; and if the trustee fraudulently release the action without the consent of the party beneficially interested, a plea of such a release will be set aside'(e). But the defendant, in an action at law brought by a trustee, cannot in that action set off a debt due to him from the cestui que trust (f). Fraudulent release by him set aside. Defendant can not set off a debt from cestui que trust. A trustee, whose name is used by the cestui que trust as plaintiff in an action at law, may apply to a court of equity in a suit then pending Trustee entitled to restrain the cestui que trust from proceeding with the action, until he had given him security for costs (g). to security for costs from cestui que trust. Powers of trustee where cestui que trust under disability. He cannot in general prejudice cestui que trust. May purchase trust estate. In case of the disability of the cestui que trust by reason of infancy, or mental incapacity, a dry trustee does not acquire any further powers of management, or disposition over the trust estate; nor can he by any act of his alter the nature of the trust property, by changing real estate into personal, or vice versâ (h). It is a general rule in equity, that no act of the trustee shall prejudice the cestui que trust (i). To this however there is one exception; for if a mere trustee be in actual possession of the estate, and convey it for valuable consideration to a purchaser, who has no notice of the trust, the title of the purchaser will prevail (k). A mere dry trustee, such as one to preserve contingent remainders, is not incapacitated from dealing with the cestui que trust for the purchase of the trust estate (1). (b) Balls v. Strutt, 1 Hare, 146. (f) Tucker v. Tucker, 4 B. & Ad. 745. and Trusts, E.]; Witter v. Witter, 3 P. Wms. 100. (i) 7 Bac. Abr. [Uses and Trusts, E.]; 1 Cruis. Dig. Tit. 12, Ch. 4, Sect. 11. (k) Millard's case, 2 Freem. 43; see Bovey v. Smith, 1 Vern. 149; and see post, Pt. III. Div. I. Ch. III. (1) Parkes v. White, 11 Ves. 226. II. Of Trustees to Preserve Contingent Remainders. Where an estate was limited by deed or will to a person for life, with an immediate remainder to his children, or other persons, upon their coming into esse, or upon any other contingency, the contingent remainders previously to the recent act, 7 & 8 Vict. c. 76, might have been defeated, before coming into existence, by the forfeiture or alienation of the tenant for life (m). The inconvenience and injustice, which was just occasioned, led to the invention of the estate of trustees to preserve contingent remainders. An estate was limited to trustees and their heirs during the life of the tenant for life, in trust to support the contingent remainders after limited from being defeated or destroyed. If therefore the estate of the tenant for life were determined otherwise than by his death, the estate of the trustees would then take effect in possession, so as to support and preserve the remainders depending in contingency (n). The estate in remainder thus limited to trustees during the life of They are vested the tenant for life, is a vested and not a contingent remainder. This was once doubted, but it was so resolved by the Court of K. B. in the case of Smith on the demise of Dormer v. Parkhurst, and that decision was affirmed on appeal by the House of Lords with the unanimous concurrence of all the judges (o). The extent and duration of this The duration estate, and in what cases it will be restricted or extended to meet the and extent purposes of the trust, has been already considered in a previous chapter (p). estates. of such estates. by the trustees of trust. The primary duty of trustees of this description is to preserve the A conveyance contingent remainders, created by the will or settlement, from being before the condefeated or destroyed by the tenant for life. Therefore where trustees tingency hapare appointed to preserve contingent remainders limited to unborn pens is a breach sons, and before the birth of a son they join in a conveyance to destroy those remainders, that is a clear breach of trust, for which they will be held responsible to any son afterwards coming into existence to the extent of the full value of the estate (q); and a volunteer taking under such a conveyance, or a purchaser with notice will be bound by the trust, and will be decreed to execute a reconveyance (r). And it Whether the (m) Archer's case, 1 Rep. 66; Chudleigh's case, ib. 120; Fearne, Cont. Rem. 290, 7th ed.; 2 Bl. Comm. 171, 2; 1 Mad. Ch. Pr. 618, 3rd ed.; 2 Story Eq. Jur. 231. (n) Garth v. Cotton, 3 Atk. 753; S. C. 1 Dick. 183; Smith d. Dormer v. Parkhurst, 3 Atk. 135; S. C. Willes, 327; 2 BI. Comm. 171, 2; 2 Cruis. Dig. Tit. 16, Ch. 7, Sect. 1; Co. Litt. 290, b. Butl. notes, IV. V. 4; 1 Mad. Ch. Pr. 619. (0) 3 Atk. 135; S. C. Willes, 327; see settlement was for valuable or voluntary, or by will. 3 Atk. 753; Fearne, Cont. Rem. 217; Co. consideration, (r) 1 P. Wms. 128; 2 P. Wms. 681; 3 PART III. is immaterial whether the trust was created by voluntary settlement, or by a settlement for valuable consideration, or by will (s). Div. I. CHAPTER II. SECT. 1. But this equity tion of the settlement. But the court has refused to enforce this equity against the trustees in favour of persons, claiming under an ultimate contingent limitation not enforced on in a settlement to the right heirs of the settlor, who were not within behalf of parties, not within the consideration of the settlement. The case alluded to is that of the considera- Tipping v. Pigott (t). There by a marriage settlement lands were limited to trustees, in trust for the husband for ninety-nine years, if he should so long live, remainder to trustees during his life to preserve contingent remainders, remainder to the first and other sons of the marriage in tail, with an ultimate remainder to the right heirs of the husband; there was no issue of the marriage, and the husband and wife, and the trustees to preserve, joined in resettling the estate by fine and conveyance to other uses. The husband and wife died without issue, and a bill was filed by the heir at law of the husband to enforce his claim under the limitation in the first settlement, and to set aside the subsequent conveyance, as having been made in breach of trust. But Lord Harcourt held, that although the second settlement would most certainly have been a breach of trust as against the first and other sons, who took as purchasers under the first settlement, yet the remainder over to the right heirs of the husband was merely voluntary, and not to be aided in equity, and he accordingly dismissed the bill (u). Under a limitation to A. for ninety-nine years, if he should so long live, with remainder to trustees to preserve (giving them the first estate of freehold), with a contingent remainder to the first and other sons of A. in tail; the first legal estate of freehold would be vested in the trustees, and their concurrence would consequently be requisite to give validity to any fine or recovery for barring the subsequent remainders. It is at present by no means settled how far it would be a breach of trust on the part of the trustees to join with the tenant for life, and tenant in tail in remainder upon his reaching twenty-one, in barring the subsequent remainders over in order to effect a resettlement of the estate (x). We shall presently see that the court will not in general decree the trustees to join in such a transaction, if they refuse to do so (y). Whether trus tees may join with tenant for life and first tenant in tail in destroying the contingent remainders. Quare? If the new set tlement be beneficial to the family, their joining in it is no breach of trust. If the new settlement of the estate be beneficial to the family generally, and it do not confer any unreasonable benefit on the tenant for (8) Pye v. Gorge. 1 P. Wms. 128; Mansell v. Mansell, 2 P. Wms. 681; Symance v. Tatham, 1 Atk. 614. (t) 1 Eq. Cas. Abr. 385. (u) Tipping v. Pigott, 1 Eq. Ca. Abr. 385; S. C. 2 Cruis. Dig. Tit. 16, Ch. 6, Sect. 9; and see Moody v. Walters, 16 Ves. 312, 13. (x) Else v. Osborn, 1 P. Wms. 387; Moody v. Walters, 16 Ves. 283; Biscoe v. Perkins, 1 V. & B. 485. (y) Townsend v. Lawton, 2 P. Wms. 379; Symance v. Tatham, 1 Atk. 613; Woodhouse v. Hoskins, 3 Atk. 22; Barnard v. Large, 1 Bro. C. C. 534; Ambl. 773. |