Div. I. CHAPTER II. SECT. 2. sions of a deed of separation, which was made between the husband PART III. and wife only without the interposition of a trustee (n). And in the recent case of Frampton v. Frampton (o) the Master of the Rolls (Lord Langdale) appears to have been disposed to recognize the validity of a trust for the wife in such a deed without any trustee (p). band. However it is unquestionably more convenient and proper in cases Effect of covenant by the of separation, that trustees should be appointed, by whom the provi- tantees to insions for the wife's separate maintenance may be enforced. And where, demnify husas is usually the case, the trustees in consideration of the separate provision covenant to indemnify the husband against the wife's debts or her other claims on his property, that will create a valuable consideration, and will support the transaction even against the husband's creditors (q). tial. But the absence of such a covenant on the part of the trustees will Such a covenot invalidate the deed, which notwithstanding such an omission will nant not essenbe binding on the husband himself (r); although for want of a proper consideration it would not hold good against his creditors (s). It is to be observed however, that if the provision for the wife still rested in agreement on the part of the husband, and there were no covenant by the trustees or other valuable consideration to support the agreement, it would be a mere nudum pactum, which could not be enforced in equity (t). But if the trust for the wife be actually created, it is by no means essential, that the instrument should be formally executed as a deed (u). It was at one time considered, that provisions for the separate maintenance of a married woman in case of any future separation might be enforced (x). This doctrine however is now clearly overruled, and it is settled that the agreement must be for an immediate separation (y). A covenant by the husband, for the payment of an annuity to the wife in case of any separation between them, is within this principle, and cannot be enforced (z). Provisions for a future separa tion void. the trustee re In these cases if a bond or covenant be entered into by the husband Mode of prowith a trustee for the wife to secure her separate provision, the trustee ceeding where is of course the party to sue on the instrument at law for the wife's fuses to enforce the separation benefit. But if he refuse to act without an indemnity, a bill may be filed by the wife by her next friend against the husband and the (t) Elworthy v. Bird, 2 S. & St. 372. (x) Rodney v. Chambers, 2 East, 297; (y) Titley v. Durant, 7 Price, 577; Hobbs v. Hull, 1 Cox, 445; Westmeath v. Westmeath, Jac. 142. (z) Cocksedge v. Cocksedge, 8 Jur. 659. bond. PART III. trustee for the payment of the amount secured. And in such a case, though there is a decree for the plaintiff, the trustee will be entitled to his costs, to be paid by the husband (a). Div. I. CHAPTER II. SECT. 2. The wife has no power to assign or charge the property se cured to her by a deed of separation. Duty of trus tees for feme to protect her from her husband. Under a trust of husband's property to him and the wife jointly, the husband en Where property is vested by a separation deed in trustees for the benefit of the wife, she will not have the same equitable power of disposing of this interest, as in the case of property secured to her separate use, but she will take it with all the disabilities of coverture: consequently any assignment or charge or other disposition executed by her will be merely void, and must be wholly disregarded by the trustees (b). It is the duty of trustees for a feme coverte to protect her interests against her husband; and if in neglect of that duty they assist the husband in excluding her from the receipt of her property, and refuse to pay and dispose of her income according to her directions, they will be decreed to pay the costs of a suit, instituted by her to obtain redress (c). Where property belonging to the husband, or of which he is the to pay income purchaser, by settlement, is vested in trustees, in trust to pay the income to the husband and wife jointly during their joint lives, the husband alone will be entitled to receive the whole income (d). And he will be equally so entitled, although he has obtained a separation, and divorce a menså et thoro, from his wife for adultery, and although the wife has no other means of subsistence (e). But it would be otherwise, where the separation is occasioned by the misconduct of the if for adultery. husband (ƒ). titled to the whole. Although the wife be separated from him, Secus, where the property belongs to the wife. Adultery of wife not a for feiture of any benefit under a contract or settlement. But if the property of the wife were subject to a similar trust, the husband would not be entitled to the whole, although the wife were guilty of adultery, and separated from him (g). And where the wife is entitled to a provision by virtue of a contract, whether contained in marriage articles, or in a covenant or deed of settlement, it is clearly settled, that the trust may be enforced in her favour, notwithstanding her adultery, and although she may be living apart from her husband (h). And a suit by the trustees against the husband for that purpose may be sustained (i). IX.-Of Trustees of Freeholds. The powers and duties of trustees of freehold estates have necessarily been in a great measure discussed by anticipation in some of the (a) Cooke v. Wiggins, 10 Ves. 191; see (c) Bagot v. Bagot, 10 Law Journ. N. S., (d) Duncan v. Campbell, 12 Sim. 616. (g) Ball v. Montgomery, 4 Bro. C. C. 339; S. C. 1 Ves. jun. 191. (h) Sidney v. Sidney, 3 P. Wms. 270; Blount v. Winter, ib. 277, n.; Moore v. Moore, 1 Atk. 276; Seagrave v. Seagrave, 13 Ves. 439. (i) Blount v. Winter, 3 P. Wms. 277, n.; Moore v. Moore, 1 Atk. 276. previous chapters of this work; but it will be convenient here to throw PART III. together a few of the most obvious remarks on this subject. As the owner of the legal estate alone can be recognized in a court of law, it is one of the primary duties of the trustee of freehold estates, to maintain and defend all such actions at law, as are requisite for the assertion or protection of the title (k). There has been already occasion to consider the right of trustees to the custody of the title-deeds (1); and we have seen, that the trustees, having the legal estate, are entitled in general to the custody of the deeds of settled property, for the benefit of all the parties beneficially interested (m). And that it will even be a breach of their duty to suffer the equitable tenant for life to obtain possession of the deeds (n). Although the court will not suffer this right to be abused by the trustees for the mere purpose of annoying or controlling the tenant for life, but will order the deeds into court, where such a spirit is shown (o). A mere dry trustee of course cannot retain the title-deeds against the beneficial owner. The rights of the trustees to the possession and management of the settled estate, have also been discussed, and we have seen, that that question will be governed materially by the nature of the property, and of the powers and duties, which the trustees are called upon to exercise (p). Div. I. CHAPTER II. SECT. 2. Duty of trustees to defend and assert the title at law. Their right to the custody of the title deeds. Or to the pos session and management of the estate. leases. Where the trustees are directed to pay annuities or make any other periodical payments out of the estate, it is essential to the due discharge of the trust, that they should have the power of rendering the property productive by leasing it; and in the absence of any express Their implied power there can be little question, but that the trustees with such power to grant duties to perform would take an implied power to grant leases at rack rent under the ordinary terms and provisions, regard being, had to the nature of the property and the custom of the country. Thus in a case, where real estate was devised to trustees to pay certain life annuities, and subject thereto in trust for certain individuals for life with remainder over, it was held by Sir J. Leach, M. R., that the trustees were able to grant valid leases for ten years (q). However there can be no question, but that the trustees would not be justified in leasing for any term of unusual length, as on building leases, or at any other than rack rent, unless they are expressly authorized to do so by the trust instrument. Where no such payments are to be (k) 1 Cruis. Dig. 448, 4th ed.; ante, Pt. II. Ch. III. (1) Ante, Pt. II. Ch. III., and Pl. VI. of this Section. (m) Doe v. Passingham, 6 B. & Cr. 305 ; Barclay v. Collett, 4 N. C. 650; Duncombe v. Mayer, 8 Ves. 320. (n) Evans v. Bicknell, 6 Ves. 174; see (0) See Denton v. Denton, 8 Jur. 388. (g) Naylor v. Arnitt, 1 R. & M. 501. FF PART III. Div. I. SECT. 2. When it is incumbent on them to take possession. Extent of their power to manage the made by the trustees, their power to grant leases is at least very questionable, and could rarely be exercised with any safety. If the annuities or other payments, which it is the object of the trust to secure, are not duly paid by the person, who is for the time being beneficially entitled subject to those payments, it will be the duty of the trustees to enter into possession of the profits of the estate, by giving notice to the tenants to pay their rents to them (r). And where the general duties imposed on the trustees require them to be in the actual possession and management of the property, as where they are required to exercise a general supervision, and to insure, &c., they will be entitled to retain the possession and management to the exclusion of the equitable tenant for life (s). But if there are no such duties, and the annuities, &c. are regularly paid by the tenant for life, the trustees will not be allowed to disturb him in the receipt of the rents and the management of the estate; especially where they have acquiesced in his having the management and possession for several years (t). Trustees, who are invested with general powers of management, will be justified in laying out money in the repairs and improvement of the estate generally. property, such as draining, building farm-houses, &c., manuring, and other similar works (u). But without any general authority, or a special power, they would run the risk of having the payments disallowed, if they ventured to make such an application of the trust funds (x). Where the ces are femes covertes or infants. And the position and capacity of the cestuis que trusts will constituis que trusts tute another ingredient for consideration, in determining the nature and extent of the authority of the trustees. For instance, where the estate is held in trust for a feme coverte or for infants, who are incapable of acting for themselves, the powers of management and control will necessarily devolve on the trustees for their protection and benefit (y). Trustees liable for suffering rents to fall in arrear. Power to release when? Where it is incumbent on the trustees to receive the rents, either for the purpose of accumulation, or for any other purpose directed by the trust, they will be personally liable, if they suffer the tenants to fall into arrear, and a loss be thus occasioned to the estate (z). Where the tenant of an estate became insolvent, and the rent was arrears of rent, considerably in arrear, a trustee has been held justified in releasing the debt, and even in giving a bonus in addition to get the tenant out, as it was for the benefit of the estate (a). Jenkins v. Milford, 1 J. & W. 629. (t) Denton v. Denton, Rolls, 8 Jurist, 388. (x) Bowes v. E. of Strathmore, ubi supra. X.-Of Trustees of Copyholds. PART III. Div. I. SECT. 2. Rights of lord by escheat on failure of trus tee. Prior to the passing of the late act for the amendment of the Law CHAPTER II. of Forfeiture and Escheat (4 & 5 Will. IV. c. 23), there appears to have been some risk in vesting copyhold property in a single trustee, or a small number of trustees. The lord of the manor was not bound by any trust, which he had not consented to, or recognized by entry on the rolls of the manor (b); and stewards of manors would very rarely accept any surrender, in which the trusts were noticed. The consequence was, that in case of the death of the sole or last surviving trustee without heirs, or of his attainder or conviction for felony, the estate would have escheated to the lord discharged of the trust (c). However this risk is obviated by the act above mentioned, which expressly ap- Effect of 4 & 5 plies to copyhold as well as freehold property, and does away with the escheat or forfeiture in these cases. And it is also retrospective in its operation. W. IV. c. 23. Right of trustee to hold benefi trust. On the other hand in case of the death without heirs or the attainder of the cestui que trust, there will be no equitable escheat in favour cially on failure of the lord, but the trustees will hold for their own benefit discharged of cestui que from the trust (d). And although in such a case a court of equity will not interpose against the lord in favour of the heir of the trustee, who claims to be admitted (e), yet a court of law will compel the lord to admit the heir, in order that he may try his title (f). However Quære? where the trusts have been actually consented to by the lord, and are entered on the rolls of the manor, it might possibly be a question, whe- the rolls. ther the lord might not have an equity to treat the trustee as holding for his benefit upon the failure of the cestuis que trusts (g). Where the trust is noticed on death, &c. of The trustees in whom the legal estate is vested, are regarded by the Fines and helord as the real tenants for the performance of the feudal services. It riots due on follows therefore that the customary fines and heriots will become due trustees. on the alienation or death of the trustees, and not of the cestuis que trusts (h). In case of there being several co-trustees, who are jointtenants, no heriot is due until the death of the last survivor (i). Where there is a large number of trustees, as frequently happens in charity cases, the following rule has been laid down for estimating the amount of the fine on admission, viz., to take for the second life half the sum taken for the first, and for the third, half of what was taken for the second, and so on (k). (b) Chudleigh's case, 1 Co. 122, a; Burgess v. Wheate, 1 Sir W. Bl. 167; S. C. 1 Ed. 177; Att.-Gen. v. Duke of Leeds, 2 M. & K. 342; Weaver v. Maule, 2 R. & M. 97; ante, p. 10. (c) Peachy v. Duke of Somerset, 1 Stra. 454; Burgess v. Wheate, ubi supra; 1 Scriven, Cop. 483, 3rd ed.; Att.-Gen. v. Duke of Leeds, 2 M. & K. 342; ante, p. 10. (d) Ante, p. 256. (e) Williams v. Lord Lonsdale, 3 Ves. 756. (f) Rex v. Coggan, 6 East, 431. (i) Com. Dig. Copyhold, K. 24; 1 Scriven, (k) Wilson v. Hoare, 2 B. & Ad. 350; 1 Scriven, Cop. 389, 3rd ed. Amount of fine how fixed where large number of trustees. |