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be in another state, if the trustee were duly served with process. If the trustee were unfaithful or abused his trust, the court in Massachusetts could remove him and appoint a more faithful trustee.

The residence of the trustee and cestui que trust out of the commonwealth does not take away the power of this court to regulate and control the proper administration of trust estates which are created by wills of citizens of this State, and which have been proved and established by the courts of this commonwealth. The legal existence of the trust takes effect and validity from the proof of the will, and the right of the trustee to receive the trust fund is derived from the decree of the Probate Court. If the trustee is unfaithful or abuses his trust, that court has jurisdiction to remove him in concurrence with this court on the application of those beneficially interested in the estate.❜

As a general rule, the validity of a trust relating to land would depend on the law of the state in which it was situated. If the laws of the state where the land was situated prohibited certain trusts or limited their duration, the fact that the owner of the land lived in another state and that his will was probated there, would not change the law of the locality, nor would the court attempt to abrogate the local law of another jurisdiction.

§ 407. How Courts of Equity Control Trustees

If a court of equity has control over the person of a trustee because he resides in its jurisdiction, it can, when the property forming the subject matter of the trust is without its jurisdiction, compel the trustee to obey the decrees of the court by serving him with process in contempt. Even where a trustee is domiciled elsewhere or removes elsewhere, he may be served with process if temporarily within the jurisdiction of

2 Chase v. Chase, 2 Allen (Mass.) 101.

the court and compelled to stay within the jurisdiction until the decree of the court has been performed.

§ 408. The Law That Governs a Trust

Generally, it may be said that the validity of a proposed trust, if of land, is determined by the law of the state where the land is situated, and if the subject matter of the trust is personalty, by the law of the domicile of the creator of the trust. This is, however, a general rule and in any particular case it would be necessary to have the matter looked up by competent counsel. It is not a question upon which a layman, unaided, could well satisfy himself.

$409. The Trustee's Estate in Land

The first rule as to a trustee's legal estate is that: "Wherever a trust is created, a legal estate, sufficient for the purposes of the trust, shall if possible be implied in the trustee." The second rule is that: "The estate of the trustee shall not be greater than is necessary to the complete execution of the

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§ 410. The Trustee's Estate in Personalty

If the subject matter of the trust to be held by the trustee is personal estate, it becomes the absolute property of the trustee and he can deal with it as his own, but is required to give account of his administration.

REVIEW QUESTIONS

1. What property may be held in trust?

2. Where trustee and beneficiary are in the same state, may the property be out of the state?

3. When can land in another state be held in trust? What is the law usually as to a trust in land?

3 Perry on Trusts, § 312.

4. How can a court of equity enforce its decrees?

5. What is the general rule as to trusts of land and trusts of per

sonalty?

6. What are the two rules as to the estate of the trustee?

7. What control has a trustee over personal property held in trust?

CHAPTER XLVII

CARE OF THE TRUST ESTATE

§ 411. The Trustee's Duty to the Estate

No man is compelled to act as trustee, but if he does accept the office he will be held to its duties and he cannot evade the responsibility. He may be removed for misconduct, he may be discharged by unanimous consent of the beneficiaries if all are competent to consent, or under some jurisdictions he may resign; but otherwise he must do all that his office requires, and is liable for any negligence or misconduct.

Trustees will be held to great strictness in their dealings with the estate, but courts will treat them leniently when they act in good faith. A trustee is bound to exercise ordinary care and judgment, and it is no excuse for him that he did not possess them; by accepting a trust, whether gratuitous or not, he undertakes that he does possess and will exercise them.1

Few persons would be willing to deposit money in savings banks, or to take stock in corporations, with the understanding that the trustees or directors were bound only to exercise slight care, such as inattentive persons would give to their own business, in the management of the large and important interests committed to their hands. When one deposits money in a savings bank, or takes stock in a corporation, thus divesting himself of the immediate control of his property, he expects and has the right to expect, that the trustees or directors, who are chosen to take his place in the management and control of his property, will exercise ordinary care and prudence in the trusts committed to themthe same degree of care and prudence that men prompted by self-interest generally exercise in their own affairs. When 1 Perry on Trusts, & 401.

one voluntarily takes the position of trustee or director of
a corporation, good faith, exact justice, and public policy
unite in requiring of him such a degree of care and pru-
dence and it is a gross breach of duty-grossa negligentia-
not to bestow them."

If a trustee allowed his lawyer to handle the trust funds and to check out the payments, the trustee would be liable for any loss that occurred. If the trustee deposits the funds in a reputable bank in his name as trustee and they are lost, he is not responsible, for he has done what a careful business man should do. If instead he deposits in his own name or mingles the trust funds or property with his own, he is responsible if loss ensues.

Whenever property is stolen by burglars from an iron safe or other usual place of safe deposit, the administrator is not liable.

§ 412. A Trustee May Not Delegate His Authority

A trustee may not delegate his duties to another. It is his job and, while he may secure assistance or employ an agent where it is necessary, he is personally responsible if the things done are part of his own duties. If the things on which others are engaged are in the usual routine of business done by special agents, as legal work, banking, the sale of securities, or the like, a trustee is responsible only for securing responsible agents, lawyers of repute, bankers of established credit, and brokers of standing.

Whenever in the due course of business it is customary to act through agents or attorneys, a trustee should do so, and it is not treated as a delegation of his powers. Neither is it a delegation of power to instruct and authorize specific acts to be done. The standard in such cases is the care which "an ordinarily prudent man would exercise in the management of

2 Hun v. Cary, 82 N. Y. 71.

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