present Div. I. CHAPTER II. SECT. 2. that right is forfeited to the crown (1). There might be a question, PART III. how far the trustees for such persons would become entitled to for their own benefit to the exclusion of the title of the crown (m). Where an advowson is vested in several trustees, they must all join in signing the presentation on a vacancy, and the ordinary cannot be compelled to admit the clerk, where all the trustees have not concurred (n). However this rule does not apply where the trustees have been incorporated by charter; for the major part of those, who attend at a meeting of the corporation, would have the power of binding the rest by affixing the corporate seal to a presentation. But in such a case it seems that all the other trustees must have received notice of the intended meeting (0). All the trustees must join in a presentation. And where it is expressly declared by the trust, that the major part When the of the trustees shall have the right of appointment; those who dissent choice of the majority will from the choice of the majority will notwithstanding be bound by their bind the whole election, and will be compelled to give legal effect to it by joining in the of the trustees. presentation of the clerk so chosen to the bishop (p). And if the dissenting trustee in such a case refuse to concur in the presentation, he will not be allowed his costs of a suit occasioned by his refusal (q). And as these trusts are in the nature of public ones, it seems that the decision of the majority would be binding on the whole number without any express direction for that purpose in the trust instrument (r). However in these cases the right of election is vested equally in all Notice of meeting must be the trustees, and they must all have due notice of the intended meeting given to all the for the purpose of election. Therefore in a case, where twelve out of trustees. twenty-three trustees, being in favour of a particular candidate for the living, met and appointed him to the vacancy without giving notice of their intention to the other eleven trustees, who supported a rival candidate, the election was declared void for want of due notice (s). Where the power of choosing a clergyman to fill the vacancy is vested in the trustees, that being a personal trust cannot be delegated by them to others, and they cannot therefore vote by proxy at the election (†); although where the choice has been regularly made, the power of signing the presentation, being a mere ministerial act, may be deputed by proxy to the others (u). Trustees cannot vote by proxy clergyman. But may sign the presentation by deputy. in choice of a A direction in the trust instrument that the trustees shall meet for Direction for (2) Wats. 106. (m) Ante, Pt. II. Ch. III. p. 335, 6. (n) Att.-Gen. v. Scott, 1 Ves. 413, 4; Seymour v. Bennett, 2 Atk. 483; Co. Litt. 186, b.; Wilson v. Dennison, Ambl. 82. (0) Att.-Gen. v. Davy, 2 Atk. 212; Wilson v. Dennison, Ambl. 82. (p) Att.-Gen. v. Scott, 1 Ves. 413; Att.Gen. v. Cuming, 2 N. C. C. 139; Wilson v. (r) Att.-Gen. v. Scott, 1 Ves. 413; ante, binding? (8) Att.-Gen. v. Scott, 1 Ves. 413; and PART III. Div. I. SECT. 2. Direction to keep up a cer tain number of trustees. How far obligatory? Bishop re strained from presenting pending a suit. Trustee refusing to pre sent. How far liable for costs? Bank of Eng the purpose of election within a certain time-as four months or eight days—after the occurrence of a vacancy, need not necessarily be observed; and an appointment by the trustees having the legal estate will not be invalidated, because it was made after the prescribed period (x). So a declaration, that when the trustees are reduced to a certain number, new ones shall be appointed, has been held to be merely directory. And where the required number has not been kept up, a presentation by the then existing trustees (y), though they may have been reduced to one only (z), or even by the heir of the last surviving trustee (a), has been supported. But in such cases the court will take care that the number of trustees is properly filled up for the future (b); and where the appointment in question is set aside, it will direct new trustees to be appointed, before the fresh election is made (c). An information may be filed by the Attorney-General to have the requisite number of trustees supplied (d). Pending a suit respecting the right of nomination or presentation to a benefice, the bishop will be restrained from taking advantage of the lapse, and exercising the right of presentation himself (e). If a trustee refuse to present on the nomination of his cestui que trust, he will be compelled to do so by the decree of the court; and if his refusal were unreasonable or improper, he would doubtless be fixed with the costs. Although if he acted from conscientious though mistaken motives, he would not be made to pay the costs, although he might not be allowed to receive them (ƒ). If the presentation were lost by lapse, owing to the refusal of the trustee to present, there can be no question, but that he would be held personally responsible to the cestui que trust for the damage sustained by him. XIII.-Of Trustees of Stock or Shares. The Bank of England is not bound to take notice of a trust affecting land not bound public stock standing in their books; and they will refuse to recognize any other than the legal title (g).* And the rule of the bank is in to notice a trust of stock. *And where a creditor has obtained an order under the 15th sect. of the general not to allow a sum of stock to be transferred into the names of more than four co-proprietors. The first duty of trustees of stock is to receive the dividends, and apply them to the purposes of the trust. However where the cestui que trust is absolutely entitled to the receipt of the whole income without deduction, a power of attorney to receive the dividends will be properly given by the trustees to the cestui que trust or his assigns (h). The power of attorney must be executed by all the trustees, and it will become void and must be renewed on the death of the parties by whom it is given. So the power will be revoked, if the trustees themselves on any occasion apply for and receive the dividends. PART III. Div. I. CHAPTER II. SECT. 2. Trustees may give powers of attorney to re ceive dividends. When? or re dends. Where the dividend on trust stock is reduced by act The remedy for a cestui que trust, under the act 1 Will. IV. c. 60, Remedy on inin case of the incapacity of the trustee of stock, or his refusal or neg- capacous lect to transfer or pay the dividends, has been already considered (i). tees to transfer The acts for the reduction of stock always provide, that any engagement respecting the original stock, shall be satisfied by the same amount of reduced stock. Therefore where a person has bound himself by covenant or bond to transfer to trustees a certain sum in a particular stock, and the stock in question previously to the time of of parliament. making the transfer is reduced by act of parliament, the trustees may be compelled to accept the reduced stock in satisfaction of the settlor's engagement (k). By the late act for the reduction of the three-and-a half-per-cent. stock, (7 Vict. c. 4, s. 9,) trustees of stock, or one of them on behalf of the others, are empowered to assent to the reduction under the act, and are indemnified for so doing. Where stock, in which trust monies are invested, is reduced by act of parliament, all the persons beneficially interested, including annuitants for life, as well as persons entitled to the corpus of the fund, must bear their proportion of the loss equally (7). Where the trust property consists of Bank or India Stock, or stock Trusts of Bank, in the foreign funds, and the trust authorizes the continuance of such India, or Foreign Stock. investments, the same rules of management prevail as those concerning stock in the British funds. Any extraordinary bonus on bank or other stock, which is settled in Bonuses on trust for one for life with remainder over, must not be paid over to the (h) See Wright v. Lord Dorchester, 3 Russ. 49, n. (i) Ante, Pt. I. Div. III. Ch. II. Sect. 2, and Pt. III. Ch. IV. (k) Sheffield v. Earl of Coventry, 2 R. & M. 317; Milward v. Milward, 2 M. & K. 311. (1) Att.-Gen. v. Poulden, 8 Jurist, 611. trust stock must be invested for benefit of remainder-men. late act, 1 & 2 Vict. c. 110, charging the interest of his debtor in stock, which stands in the name of trustees, the bank will still pay the dividends to the trustees, who have the legal title to receive them, and the trustees are to apply the dividends according to the equitable interests of the parties. Bristed v. Wilkins, 3 Hare, 235. PART III. CHAPTER II. Drv. I. SECT. 2. Liability of trustees of shares. Allowance for on the transfer tenant for life, but it must be treated as capital, and invested by the trustees, and the dividends only paid to the cestui que trust for life (c). Trustees in whose name the shares of any canal, railway, or other company are standing, are primarily liable to the company for the calls upon those shares, as well as the other expenses, which the shareholders are bound to pay. But they are of course entitled to claim from their cestuis que trusts, and to retain out of the trust monies in their hands, any payments, which they may have been compelled to make in consequence of this liability (d). A trustee of stock will be allowed in his accounts the usual payment brokerage paid of one-sixteenth per cent. which is charged by a stock-broker for identifying him at the bank, on making the transfer of the fund to the person beneficially entitled (e). to cestui que trust. Trust choses in action may be either created by the settlement itself, Or being previously in exist ence, may be assigned to trustees on trusts. XIV.-Of Trustees of Choses in Action. Trusts are frequently declared of choses in action, such as bonds, covenants, policies of assurance, or simple contract debts, and other property of that description, which is not at the moment in actual and tangible existence, and which can be compulsorily realized only by suit or action. In these cases the debt or thing in action may either be created by the settlement itself-as in those cases where the settlor binds himself by covenant or bond to pay the trustees a certain sum of money, or do some other act, or it may be actually in existence and vested in the settlor previously to the creation of the trust, and may be transferred by him with all the rights and remedies for enforcing it to the trustees— As where a debt or policy of insurance is assigned to trustees to hold on the trusts declared. In the former case the trustees take the legal interest, and at the proper time they will be bound to take such legal proceedings, as may be requisite for enforcing payment or performance in their own names;* in the latter case the assignment gives them only an equitable title, and all proceedings at law must be instituted by them in the name of the assignor. Where a testator being entitled to choses in action bequeaths them by his will to trustees, and appoints the same persons his executors, the legal title will of course vest in the trustees upon the testator's death by virtue of their appointment as executors (f). (c) Brander v. Brander, 4 Ves. 890; Paris v. Paris, 10 Ves. 185; Clayton v. Gresham, ib. 288; Witts v. Steere, 13 Ves. 363. (d) Preston v. Guyon, 10 Law Journ. N. S., Chanc. 72. (e) Jones v. Powell, 6 Beav. 488; vide post, Ch. [Allowances]. (f) Caney v. Bond, 6 Beav. 486. *Where a settlor enters into a covenant with a trustee for the benefit of a third person, the cestui que trust cannot even in equity institute a suit against the covenantor for a specific performance without making the trustee a party. Cooke v. Cooke, 2 Vern. 36; Cope v. Parry, 2 J. & W. 538. PART III. Div. I. CHAPTER II. SECT. 2. It is the duty of the trustees in all these cases to take every necessary step by suit or action or otherwise for realizing the chose in action at the time contemplated by the trust. And if the fund be lost from their neglect of this duty, they will be held personally responsible to Duty of trustees their cestuis que trusts for the loss, although they acted without any improper motive (g). And it is not sufficient for the trustee merely to apply to the debtor for payment, but it is his duty to bring an action, liability on negif necessary, for the recovery of the amount (h). to realize choses in action. Their personal lect of that duty. measured by the ability of the debtor to obligation. However where covenants or bonds are entered into by a settlor That liability with trustees, it seems that the ability of the settlor to discharge these engagements, will be the measure of the responsibility of the trustees, if the sum be lost by their neglect to put in force the security. Thus discharge his in a recent case A. on his marriage with B. covenanted with a trustee to pay 10,000l. on Martinmas-day 1824, upon trust for A. for life, with remainder to B. for life, and then for the children of the marriage. A. died without having paid any part of the 10,000l. and a suit was instituted by B. against the trustee to compel him personally to pay the 10,000l. The cause was heard before Lord Cottenham, who made a decree referring it to the Master to enquire, whether A. had been of ability to pay the 10,000l. or any part thereof during the period intervening between Martinmas 1824 and his death, or during any part of that period. The Master found that A. was of ability to have paid 4,2007. between 1824 and 1832, and that he was not able to pay anything after 1832; and on the hearing on further directions before Vice-Chancellor Knight Bruce, the defendant, the trustee, was ordered to pay the sum of 4,2007. into court (i). It will be equally the duty of the trustees to realize the debt, which is the subject of the trust, although the person by whom it is owing is himself one of the trustees: and the others will be responsible to the cestuis que trusts for neglecting to enforce the payment in such a case (k). And it seems, that the duty of realizing such securities will be peculiarly imperative, where the debt which is the subject of the trust, is payable in instalments, in which case the trustees will not be justified in showing much indulgence to the debtor on the non-payment of any instalment (I). However if a discretion be left to the trustee, and in the bonâ fide exercise of that discretion he delay the realization of the property, the court will not fix him personally with the loss thus occasioned (m). (g) Caffrey v. Darby, 6 Ves. 488; Mucklow v. Fuller, Jac. 198; Powell v. Evans, 5 Ves. 839; Tebbs v. Carpenter, 1 Mad. 290; Lowson v. Copeland, 2 Bro. C. C. 156; Caney v. Bond, 12 Law Journ. N. S., Chanc. 484; S. C. 6 Beav. 486; Rogers v. Vasey, V. C. K. Bruce, 27th Jan. 1845, MS. (h) Lowson v. Copeland, 2 Bro. C. C. 156. (k) Mucklow v. Fuller, Jac. 198. Where the by a co-trustee. debt is owing |