gaging real estate, or pledging the trust property. A bank deposit should be in the name of all the trustees, and when for convenience one is permitted to check out on his sole signature, all will be liable for any resulting loss.

§ 439. Mingling Trust Funds

When a trustee mixes trust property with his own, the beneficiary may take the whole, leaving the trustee to prove his own part. A court of equity will try to trace a trust fund and, if it can be followed, it will be held to the purposes of the trust unless the rights of innocent third parties are affected. As between the cestui que trust and the trustee, and all persons claiming under the trustee (otherwise than by purchase for a valuable consideration without notice), all property belonging to a trust, however it may be changed or altered in its character, and all the fruits of such property, whether in its original or altered state, continue to be subject to and affected by the trust.

Interest will be charged against a trustee who has mingled trust funds with his own, and annual rests may be taken and the interest accumulated added to the principal.

Where the trustee mixes the trust fund in his own bank account, if he is insolvent the cestui que trust will have to take his chance with all other creditors. If the trustee is not insolvent, the cestui que trust may take whatever has not been withdrawn. Practically, it is not easy to track trust funds, and when the trustee is insolvent and has used the trust funds with his own, they cannot usually be identified and the cestui que trust fares no better than any other creditor. Where it can be shown that the trust funds have been used to buy certain definite property or securities, these can be held as affected by the trust, and creditors have no claim upon them.

REVIEW QUESTIONS

1. For what is a trustee liable? What things are bad faith? What things constitute negligence?

2. What is understood by breach of trust? Give an example.

3. What is the first authority on a trustee's investments? The second? What are some of the negative rules?

4. Is the trustee liable if he leaves money at low interest in a savings bank?

5. What would be the liability for failure to make any investment? 6. When is a trustee not liable for theft or robbery?

7. Is a trustee liable for loss by accident? If he should have carried insurance and did not, would he be liable?

8. When is a trustee liable for the fault of his co-trustee? What is the test question in all cases? How can executors act? How should trustees act? How should bank deposits be made? 9. What is the situation when a trustee mixes trust property with his own? To what extent can trust funds be followed?

CHAPTER LI

TRUSTEES FOR MARRIED WOMEN

§ 440. The Common Law and Married Women's Rights

The common law had no care for the rights of married women; or, rather, under the common law a married woman had no rights worth consideration. When a woman married, her husband was at once entitled to all rents, income, and profit from her real estate. All her personal property was his absolutely, to dispose of at his pleasure. Any part of his wife's property that was in the shape of a right of action could be sued on by the husband, and whatever he recovered was his. If he was insolvent, his creditors could take his wife's personal property the day of the marriage and bring suit on her rights of action and apply all the property recovered on his old debts.

At common law, a husband became entitled to receive the
rents and profits of his wife's real estate during their joint
lives, and he became entitled to all her personal property in
possession, and to all her choses in action if he reduced them
to possession during his life. If he did not reduce them to
possession, and survived her, he was entitled to be her ad-
ministrator, and he thus took all her choses in action. He
also was entitled to all her chattels real, and had full power
to sell and convey them. But if the husband died without
having aliened her chattels real, or without having reduced
her choses in action to possession, she, as survivor, continued
to hold them as if she had never been married. The prin-
ciple was this: by the marriage the husband became bound to
pay all debts due from the wife before marriage; he also
became bound to support and maintain the wife and her
children in a proper manner.
In consideration of these obli-

gations, and to enable him to perform these duties, the law
gave him the property of the wife as stated.'

It is gratifying to know that there was a "principle" in the matter and that it was not merely because the male of the species was the lawmaker.

§ 441. The Common Law and Trust Estates

If a married woman were the cestui que trust of a trust estate, or if a woman who was the cestui que trust contracted marriage, the common law gave her husband the right to take whatever the trustee would have had to pay her. That is, under the common law a husband had the same right to his wife's equitable estate that he had to her legal estate, and her rights were as completely abrogated in the one case as in the other. The whole proceeding was so repugnant to every sense of fairness and justice that the courts of equity tried to find some way to evade it. The simplest way would have been to change it by positive legislation—an act of Parliament-giving a married woman the same control over her property that a married man had, but to do this would have been openly to admit that the common law was wrong and that the fathers had been unjust and inequitable for many years, which Englishmen— and other men as well-are always loath to do. Therefore, relief had to come first indirectly, through courts of equity.

§ 442. Marriage Settlements

The doctrine of marriage settlements was an invention of the English courts of equity to mitigate the injustice of the common law in its dealings with the property of married women. When the wife was the cestui que trust and the trustee declined to pay over to the husband what the wife was entitled to, the husband had to come into a court of equity to compel the trustee to pay him his wife's money. In such

a case the court on the maxim that "He who seeks equity must do equity," would order that a proper settlement should be made the wife, from her own equitable, property, before any part was paid to the husband. It was said that a wife and her children had an equitable right to a settlement; that is, the courts of equity said so, and whenever the question came under their jurisdiction they enforced the doctrine.

A settlement is a provision made for a wife and her children, that cannot be taken by either her husband or his credi

tors.

In connection with this doctrine of settlement, much curious equitable law developed. A husband could make a settlement on the wife himself, and when the parties to the marriage were of influential families, this matter of settlement was always carefully handled by the bride's family. Equity recognized and enforced these antenuptial contracts if a reasonable provision was made for the wife in lieu of what she gave up.

It was only one step further to decide that anyone who had property had the right to give and settle it on a married woman to her sole and separate use, free from the interference and control of her husband. This made it possible for any relative or friend to provide an independent property or income secure to a married woman, and safe from her husband and his creditors.

§ 443. Creating a Wife's Separate Estate

A marriage settlement of this kind may be made without any express trustee, or if it is necessary to have a nominal trustee, the husband shall be held to take the legal trustee's title, and may be compelled to act in that capacity.

A marriage settlement is peculiar in this respect, that restraint on alienation and against anticipation of income will be sanctioned by courts of equity.