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Bl^ESBNTBD 
 
 TAGORE LAW LECTURES-1881 
 
THE LAW OF TRUSTS 
 
 IN 
 
 BRITISH 
 
 WITH 
 
 APPENDIX, 
 
 WITH AN 
 
 CONTAINING 
 
 THE REGISTRATION OF SOCIETIES ACT (XXI OF I860), RELIGIOUS ENDOW- 
 
 MENTS ACT (XX OF 1863), OFFICIAL TRUSTEES ACT (XVII OF 1864), 
 
 INDIAN TRUSTEE ACT (XXVII OF 1866), THE TRUSTEES' AND 
 
 MORTGAGEES' POWERS ACT (XXVIII OF 1866), THE 
 
 RELIGIOUS SOCIETIES ACT (I OF 1880), AND 
 
 THE INDIAN TRUSTS ACT (II OF 1882). 
 
 BY WILLIAM FISCHER AGNEW, 
 
 IM 
 
 OF LINCOLN'S INN, ESQ., BARRISTER-AT-LAW, AUTHOR OF " A TREATISE ON THE 
 LAW OF PATENTS " AND " A TREATISE ON THE STATUTE OF FRAUDS." 
 
 CALCUTTA : 
 
 THA.CKER, SP1NK. A.ND CO., 
 
 3puhlts|)ets 10 ttye Calcutta SKntbcrsttg. 
 
 BOMBAY: THACKEU AND CO., LIMITED. MADUAS: HIGGINBOTHAM AND CO. 
 LONDON : W. THACKER AND CO. 
 
 1882. 
 
SB 
 
TABLE OF CONTENTS. 
 
 LECTURE I. 
 
 OBIGIN OF TRUSTS IN ENGLAND. 
 
 Page 
 
 Origin of Trusts in England Tenures Feudal system Sub-infeuda- 
 tion Estates of freehold Alienation of estates Gifts to religious 
 houses Mortmain Uses Statute of Uses Object of Statute 
 Legal and equitable estates Trusts among Hindus Krishnaramini 
 Dasi's case Tagore case Trusts for creditors Family religious 
 trusts Legislation in India Arrangement of subject Definition of 
 trust Must be confidence Merger Definition of terms Kinds 
 of trust Simple trust Special trust Ministerial and discretionary 
 trust Mixture of trust and power Lawful and unlawful trusts 
 Public and private trusts Executed and executory trusts Austen v. 
 Taylor Jervoise v. The Duke of Northumberland Coape v. Arnold 
 
 Executory trusts in marriage articles and wills Distinction between 
 them Marriage articles Blackburn v. Stables Jervoise v. Duke of 
 Northumberland Will Cy pres Intention General rules 
 Subject-matter of trust Trusts against policy of law Title of 
 honor Trusts of immoveable property without the jurisdiction of a 
 Court Penn v. Baltimore Act X of J877, ss. 15. 16 High Courts' 
 Charter Letters Patent Suits for land Foundation of jurisdiction 
 
 Court of Equity acts in personam and not in rem Land may be in a 
 foreign country Angus v. Angus Lord Cranstown v. Johnston 
 Privity Foundation of jurisdiction Injunction restraining proceed- 
 ing by other Courts Trusts of moveable property abroad Object 
 must be lawful General rule for ascertaining whether trust lawful 
 Indian Contract Act, s. 23 Trusts contrary to policy of law or 
 founded upon illegal contract void Assignment of half pay Trusts 
 for future illegimate children Trust for illegitimate children in being, 
 or en venire sa mere Trust forbidden by law Trusts postponing 
 enjoyment of property or restraining alienation Accumulation Per- 
 petuities among Hindus Restraint on alienation Condition restrain- 
 ing alienation after absolute gift Insolvency Trust to cease on 
 bankruptcy or insolvency Trust to cease on happening of particular 
 event Clauses of forfeiture construed strictly Trust for immoral 
 purposes Failure of trust Illegal purpose failing Must be a cestui 
 que trust Trust partly lawful and partly unlawful Trust of immoye- 
 able property in foreign country ...... 1 
 
 848416 
 
vi TABLE OF CONTENTS. 
 
 LECTURE II. 
 
 DECLARATION OP TBUST. 
 
 Page 
 
 Declaration of trust Intention to create trust must be shown Valuable 
 consideration Consideration not necessary Transmutation of posses- 
 sion-*- Voluntary settlements If incomplete, not enforced against 
 settlor If nothing more to be done by settlor, trust is complete 
 Assignment by cestui que trust Notice What amounts to a valid 
 declaration of trust Ineffectual assignment Chose-in-action Sub- 
 sequent disclaimer by trustee Settlor cannot revoke voluntarily 
 Setting aside voluntary settlement Defrauding creditors To what 
 property Statute applicable Question of fraud is one of fact Assign- 
 ment by way of mortgage Valuable consideration not support when 
 mala Jides Sale to defeat Crown Assignment in favour of one credi- 
 tor Voluntary settlements within Statute Indebtedness of settlor 
 Secured debts Consideration paid to third person Voluntary settle- 
 ment only void as against existing creditors Unless fraud How far 
 settlement void Insolvent Act, s. 9 Section 24 Defrauding pur- 
 chaser Statute does not extend to personal estate When settlor may 
 defeat settlement Subsequent purchase must be for value How far 
 voluntary settlement defeated Personalty settled Subsequent, will 
 
 Conveyances with power of revocation Effect of Statute Valua- 
 ble consideration Marriage Extrinsic evidence admissible to show 
 consideration Settlement not set aside as against grantors Volun- 
 tary settlement in expectation of death Rectifying settlement 
 Enforcement On whom binding Creditors' deeds how far revocable 
 
 Johns v. James Exe 'ution of deed by creditors Deed not com- 
 municated to creditors Trust by will for payment of debts . . 51 
 
 LECTURE III. 
 IMPLIED AND RESULTING TRUSTS. 
 
 Implied trusts Precatory trusts Objects, property, and trust must be 
 described Words of recommendation and entreaty Intention to 
 give absolutely Intermediate class of cases Maintenance Agree- 
 ment to settle property Vendor trustee for vendee Resulting trusts 
 
 Undisposed of interest Excluding heirs Parol evidence to rebut 
 presumption Illegal purpose Trust to sell Trusts vague No 
 trust declared Trust declared of part only of estate Transfer of 
 stock or money into name of another Purchase in name of trustees 
 Purchase in name of stranger Expression of wish Delay Rule 
 applies to joint purchase To personal as well as real estate Purchase 
 in fictitious name Parol evidence admissible on part of person 
 paying purchase-money Parol evidence on behalf of person to whom 
 conveyance made To rebut presumption as to part of the property 
 Statute of Frauds Conveyance to stranger without consideration 
 Purchases in the name of a wife or child no resulting trust Reputed 
 wife Person in loco parentis Purchase by a mother Purchase in 
 nnme of nephew Fiduciary relationship Purchases void as against 
 creditors Rules apply to personal estate Surrounding circumstances 
 
TABLE OF CONTENTS. Vll 
 
 Page 
 
 to be considered Purchase-money unpaid Joint tenancy when 
 created Purchase in the name of a child and a stranger Evidence 
 to rebut presumption of advancement Subsequent acts and declara- 
 tions Possession by father Dividends received by father Devise, 
 bequest, or lease Child fully advanced . . . .77 
 
 LECTURE IV. 
 BENAMI TRANSACTIONS AND CONSTRUCTIVE TRUSTS. 
 
 Benami transactions Purchase in name of child Burden of proof 
 Strangers Benami transactions among Mahomedans Assent of bena- 
 midar unnecessary Disputing landlord's title Suit by landlord 
 against beneficial lessees Strict proof required Oral evidence 
 Proof of payment of purchase-money Pleading benami transaction 
 against purchaser under s. 317, Civil Procedure Code Purchase at 
 sale for arrears of revenue Sale by benamidar Standing by Pur- 
 chaser with notice Real owner may sue benamidar Equitable owner 
 
 Suit by creditors against benamidar Transaction avowedly fraud- 
 ulent Constructive trusts Renewal of leases by trustee Prin- 
 ciple of rule Instances Remedy Agent of trustee Legal ad- 
 viser gaining advantage by ignorance Gifts to persons in fiduciary 
 capacity Voluntary gift where no fiduciary relation exists Where 
 it does not Spiritual influence Parent and child Persons in loco 
 parentis Guardian and ward Gift to legal adviser Extent of rule 
 
 Gift in expectation of death Strangers Principles on which Court 
 acts Badges of fraud Independent advice At whose instance set 
 
 Acquiescence Confirmation and acquiescence Laches . . 97 
 
 LECTURE V. 
 PARTIES TO THE TRUST. 
 
 Acceptance of trust Trustees also executors Acting as agent Exe- 
 cutor of an executor Renunciation of probate Partial acceptance 
 Recitals in deed as to state of trust Trustee in fact Liability of 
 trustee By whom trust may be created General rule The 
 Sovereign Corporations Prizes of war Infants Married women 
 
 Stridlian Alien Persons convicted of certain offences Grantee 
 under sanad Who may be a cesf.ui que trust The Government 
 Corporations Aliens Who may be a trustee Persons under dis- 
 ability Aliens The Sovereign Not the Government of India 
 Corporation Presidency banks Marrried women Insolvent 
 Cestuis que trustent Relatives Number of trustees Disclaimer 
 How made Gift to trustee or executor .... 120 
 
 LECTURE VI. 
 DUTIES AND LIABILITIES OP TRUSTEES. 
 
 Duties and liabilities of trustee Trustee to acquaint himself with state of 
 property Trustee bound to protect trust- property Getting in trust- 
 estate Estate outstanding on personal security When securities to 
 be realized Care required from trustee Loss occasioned by ageut 
 
Vlii TABLE OF CONTENTS. 
 
 Page 
 
 By act of co-trustee Trust-fund consisting of money Control of 
 trust-fund Failure of banker Trustee to prevent waste Permissive 
 waste Cestui que trust may not benefit by waste Tenant-for-life 
 without impeachment of waste When Court may interfere Principle 
 on which Court acts Waste by Hindu widow Suit for possession 
 Receiver Alienation by widow Proper parties to sue Collusion 
 by immediate reversioner Conversion of perishable property Howe 
 v. Earl of Dartmouth Pickering v. Pickering Exceptions from 
 rule Trustee to be impartial Discretion of trustees not interfered 
 with Selecting objects of the trust Modes of investment Exercise 
 of power by will Trustee cannot set up title to trust-property 
 Claim by third person Delivery up of moveable property Failure 
 of cestui que trust Trustee to keep accounts Vouchers Costs 
 Good faith Managing member of Hindu family Duties of trustee as 
 to investment Personal security Shares in companies Where 
 personal security allowed One cestui que trust not to be benefited at 
 expense of others Consant of cestuis que trustent to change Continu- 
 ing investment Varying securities Investment or mortgage 
 Trustees may not lend to themselves Paying over mortgage-money 
 Consent of Court to investment Trustees' and Mortgagees' Powers 
 Acts Official Trustee's Act of 1864, s. 14 Remedy in case of non- 
 investment Remedy in case of wrongful investment Insolvency of 
 trustee Duties of trustees for sale or mortgage Trustee bound to 
 sell to best advantage Must attend to interest of all parties Valu- 
 ation Absolute trust for sale will not authorize mortgage Trust to 
 mortgage will not authorize sale Trust for sale survives Trustees 
 bound to make good title Counsel's opinion Payment of purchase- 
 money Duties of trustees for purchase ..... 135 
 
 LECTUEE VII. 
 DUTIES AND LIABILITIES OP TRUSTEES. 
 
 Time within which sale of trust-property to be made Discretion to be 
 exercised Conveyance of trust-property to cestuis que trustent Dis- 
 tribution of the trust-fund Derivative title Payment after death of 
 cestui que trust Appoinment of trustee to assist in distributing Pre- . 
 
 sumption of death Rebuttal of presumption Release Liability for 
 payment to wrong persons Costs Interest Bond of indemnity 
 Authority from cestui que trust to receive the money Payment on 
 written authority Payment to persons under disability Partners 
 Payment to single trustee Overpayment Refund to executor 
 Payment when debt from testator subsisting Liability of trustee for 
 breach of trust Trustee liable though he has not benefited 
 Extent of liability Trustee about to abscond Criminal breach of 
 trust Liability of professional adviser Partner Loss by accident 
 
 Neglect to obey directions in instrument of trust To pay premiums 
 
 Sale to purchaser for valuable consideration without notice Agent 
 
 Barnes v. Addy Limitation Wilful default Concurrence 
 Fraud by trustees By cestui que trust Acquiesce nee Delay Re- 
 lease and confirmation No set-off in respect of breach of trust 
 
TABLE OF CONTENTS. ix 
 
 Page 
 
 Liability for breach of trust by predecessor or co-trustees Trustee 
 joining in receipt for conformity Trustees giving receipt bound to see 
 to investment Walker p. Symonds Trustee joining in act for con- 
 venience Executor joining iu receipt for conformity Executor must 
 ascertain that money required Executor not liable as such for act of 
 co-executor Styles v. Guy Liability under decree for common 
 account Unnecessarily handing over assets Restraining intended 
 breach of trust Several liability of co-trustees Limitation of liabi- 
 lity Contribution Impounding fund in Court Costs Trustee 
 paying under power-of -attorney Payment without notice of transfer 
 Indemnity-clause ........ 172 
 
 LECTURE VIII. 
 
 RIGHTS AND POWEBS OP TRUSTEES. 
 
 Custody of title-deeds Right of trustee to reimbursement Costs Ex- 
 penses of management Accounts Advances by trustee Wrongful 
 act of agent Repairs Lien for expenses Agents have no lien 
 Interest on advances Advances in respect of different trusts Per- 
 sonal liability of cestui que trust to reimburse Indemnity Suit to 
 recover advances Public funds Indemnity from gainer by breach 
 of trust Suit to administer trusts Appeal Costs Application to 
 Court for opinion in management of trust-property Right to settle- 
 ment of accounts General authority of trustee Advice of cestui que 
 trust What acts trustee may do Repairs Winding up estate 
 Maintenance Compounding or releasing debts How trust-property 
 may be sold Conditions of sale Buying in Power to convey 
 Power to vary investment Power to apply property for maintenance 
 
 Minors' Act Liability of purchaser to see to application of purchase- 
 money Fines and Recoveries Act Trustees' and Mortgagees' Powers 
 Act To whom purchase-money payable Charge of debts Notice 
 
 of breach of trust Suspension of trustee's powers after decree ... 211 
 
 LECTURE IX. 
 DISABILITIES OF TBTJSTEES. 
 
 Trustee cannot renounce after acceptance Trustee cannot delegate Em- 
 ployment of solicitor to invest Delegation to co-trustee or co-execu- 
 tor Necessary delegation Co-executor Delegation authorized by 
 author of trust Representatives of surviving trustee Fraad by 
 co-trustee Discretionary trust Ministerial acts Liability of agent 
 
 Co-trustees cannot act singly All trustees must join in receipt 
 and conveyance Proof in insolvency Exception to rule in case of 
 public trust Special power Acknowledgment Costs of acting 
 independently Injunction Remuneration for trouble Carrying 
 on business Surviving partner trustee Solicitor trustee Extent 
 of charge allowed Costs Trustee appointed by Court Professional 
 charges not allowed Settled account Remuneration fixed by author 
 of trust Contract for remuneration with cestuis que truslent Gift 
 coupled with duty Expenses of agent Curators under Act XIX of 
 1841 and Act XL of 1858 Official Trustee Administrator- General 
 
 B 
 
X TABLE OF CONTENTS. 
 
 Page 
 
 Trustee may not make ft profit from his office Employing trust- 
 funds in trade Compounding debts or mortgages and purchasing 
 Purchase for benefit of cestui que trust Cestui que trust cannot give 
 to trustee Rule applies to all fiduciary relations Partners Pur- 
 chasing share of deceased partner Instances of rule Trustee retir- 
 ing for a consideration Extent of liability Failure of heirs of 
 cestui que trust Failure of next-of-kin Trustee for sale cannot 
 purchase Trustee purchasing from himself That price fair im- 
 material So nature of property, or mode of purchase Trustee who 
 has never acted When cestui que trust may set aside sale Trustee 
 may not buy for another Agent of trustee may not purchase 
 Trustee taking lease Time within which sale must be set aside 
 Confirmation Purchase from cestui que trust Fiduciary relation 
 dissolved Burden of proof Purchase by creditors Assignee 
 Leave to bid Purchase from infants Legal representatives Mort- 
 gagee Lending to trustees ...... 234 
 
 LECTURE X. 
 OP THE RIGHTS AND LIABILITIES OP THE Cestui que Trust. 
 
 Rij;ht of cestui que trust to rents and profits Tidd v. Lister Right to 
 call for conveyance Costs Indemnity Right of cestui que trust 
 to have trust carried out Right of cestui que trust to hold property 
 absolutely Separate use Right of cestui que trust to inspection 
 Custody of title-deeds Right of cestui qne trust to alienate his 
 interest Cautions in assignments of equitable interest Separate use 
 
 Method of conveyance Assignee takes subject to all equities 
 Set-off Mutual demands must be in respect of same rights Notice 
 to trustees Mortgage Description of property What is. suffi- 
 cient notice To whom notice to be given Agents Notice to one 
 of several trustees Notice before trust-fund received Bankers 
 
 Trustee purchaser Nonpayment Mortgagee Immoveable pro- 
 perty Stop-order Right to execution of trust Suit for execution 
 of trust Intention of author of trust carried out Right to proper 
 trustees Suit for appointment of new trustees Costs Grounds 
 for removal of trustee Rules for selecting new trustees In re 
 Tempest Right to compel trustee to do act of duty Injunction 
 Wrongful purchase by trustee Interest Allowance for outlay Re- 
 conveyance Interest Costs Following trust-estate into hands of 
 third persons Volunteers Purchasers for value Purchase from 
 guardian Notice of trust Purchaser for valuable consideration 
 without notice Purchaser without notice from purchaser with notice 
 
 Purchaser with notice from purchaser without Fraud Doubtful 
 equity Following converted trust-property Proof of purchase with 
 trust-money Money, notes, or negotiable instruments Trust-fund 
 mixed with trustee's money Pennell r. Deffell Re Hallett's Estate 
 
 Lien Limitation Accrual of cause of action Fraud Purchase 
 from manager of joint Hindu family Position of shebait Duty of 
 purchaser Terms on which sale set aside Duty of manager 
 What is sufficient necessity Sale to pay debts Hunooman Persaud 
 
TABLE OF CONTENTS. XI 
 
 Page 
 
 Panday's case Purchaser under execution Purchase from heir of 
 Mahomedan debtor Acquisition by trustee of trust-property wrong- 
 fully converted Liability of executor or administrator to pay inter- 
 est Liability of trustee who leaves property uninvested When 
 trustee liable to pay interest Trustee employing trust-funds in trade 
 
 Docker r. Somes Apportioning profits Compound interest 
 Trust-funds mixed with trustee's money Partner trustee employing 
 trust-funds in business Election where trust-property to be sold or 
 invested Election by one cestui que tru.it to retain property uncon- 
 verted Notification of election Liability of cestui que trust joining 
 in breach of trust Against whom interest of cestui que trust applied 
 Rights and liabilities of transferree from cestui que trust . . 266 
 
 LECTURE XI. 
 
 VACATING THE OFFICE OF TRUSTEE. 
 
 Vacating the office of trustee Discharge by cestuis que trustent Dis- 
 charge under power in instrument Number of trustees Trustee 
 dying in lifetime of settlor Payment into Court Refusing or de- 
 clining Retiring Last survivor Cestui que trust may be appoint- 
 ed Assignee or devisee of trustee becoming unfit or incapable 
 New trustee should be within jurisdiction Trustee paid to retire 
 Breach of trust Appointment must be completed Stamp Dis- 
 charge by Court Grounds of discharge Whether retiring trustee 
 must appoint successor Must be by suit Affidavits of fitness Offi- 
 cial Trustee's Act, s. 10 Appointment where property lost Costs 
 Grounds for discharge Discharge of representatives of trustee 
 Executor Tr.istees' and Mortgagees' Powers Act, s. 34 Convey- 
 ance to new trustee Survival of trust Extinction of trust Com- 
 pulsory payment into Court Nature of interest of plaintiff Pay- 
 ment in of share Payment after decrees Payment in of fund not 
 received Admission of receipt of money by trustee Appointment 
 of receiver Necessary parties to a suit Suits by or against strangers 
 
 Civil Procedure Code Succession Act, s. 187 Suits for specific 
 performance" Representative specially constituted Suits between 
 trustees and cestuis que trustent Representatives of deceased trustee 
 
 When trustee unnecessary party Cestui que trust abroad Suit 
 for aliquot share Suit between trustees Executors and administra- 
 tors Suit by one cestui que trust on behalf of others When allowable 
 
 Severing defence Costs of severing Costs In suits between 
 stranger as parties to trust Between trustees and cestuis que trustent 
 
 Costs out of fund Costs, charges, and expenses Disclaimer 
 Costs after decree Suit necessary by act of trustee Accounts Law 
 doubtful ......... 326 
 
 LECTURE XII. 
 RELIGIOUS AND CHARITABLE TRUSTS. 
 
 Religious and charitable trusts Trust of immoveable property Bequests 
 to religious or charitable uses What are charitable purpose* Reli- 
 gious purposes Inhabitants of particular place Improvement of 
 particular place Trust for particular classes or persons Educational 
 
Xli TABLE OF CONTENTS. 
 
 Page 
 
 purposes Gift must be for the public Must be certain Morice v. 
 Bishop of Durham Instances of uncertainty Principles of cons- 
 truing will Cy pres Altering scheme Gift for charitable purposes 
 generally Particular purpose failing, where gift is to charity 
 generally Particular charity not described Failure of object where 
 no intention to give to charity generally Apportionment of fund 
 Gift over Charity in foreign country Breach of trust Mode of 
 procedure to obtain redress Civil Procedure Code, s. 539 Liability 
 of trustees to account New trustee New trustees of society for 
 maintaining religious worship Memorandum of appointment Vest- 
 ing Appointment of Official Trustee to charitable trust Vesting 
 property in trustees of charity Visitors Controlling revenues of 
 charity Subsequent gift Purchaser without notice from purchaser 
 with notice Alienation of charity-estate Religious trusts among 
 Hindus Perpetuities Colourable gift to idol Gift must be certain 
 
 Gifts to religious or charitable uses by Oudh taluqdars Tenure in 
 trustee Trust imperfect Devise subject to trust Sale of property 
 subject to trust Partition subject to trust Alienation Evidence 
 of endowment to be given How far sale set aside Trustee mav not 
 benefit by sale Sa;e of turn of worship Succession to trustee- 
 ship Enjoyment of endowed property Turn of worship Limita- 
 tion Management vested in different persons Proof of succession 
 where manager bound to celibacy Reversion Removal of trustee 
 Removal of mohunt Religious trust irrevocable Execution of 
 trust- Principles to be followed Right to erect place of worship 
 Religious trusts among Mahomedans Elements of wuqf, creation of 
 
 Evidence of appropriation Wuqf to take effect after settlor's 
 death Requisites to valid wuqf Undue influence Endowment 
 subject to mortgage Revocation Alienation of wuqf property 
 Nominal endowment Alienation subject to trust Mortgage b'y local 
 custom Lease of wuqf property Transfer of trust Purchaser from 
 trustee Breach of trust Removal of trustee Office of trustee 
 Female may be mutawalli Succession to the office Suits in respect 
 
 of wuqf property ........ 349 
 
TABLE OF CASES CITED. 
 
 A. 
 
 Page 
 
 Abas Alii Zenul Abaddin . Gulam Mubammad Valad Baba 
 
 Mirza ... ... ... ... ... 386 
 
 Abdul Ganne Knsam r. Hussen Miya Rahimtula ... ... 383 
 
 Rahman v. Yar Mnhammed ... ... ... ... 390 
 
 Abhaya Cbvndra Roy Cbowdhry v. Pyari Mohan Gnho ... 158 
 
 Abraham v. Alman ... ... ... ... ... 80 
 
 Abul Hasan v. ILiji Mohammad Masik Karbalai ... 384, 385 
 
 Acbeson r. Fair ... ... ... ... ... 108 
 
 Ackroyd v. Smitlison ... ... ... ... ... b6 
 
 Acland v. Gaisford ... ... ... ... ... 83 
 
 Acraman p. Corbett ... ... ... ... ... 61 
 
 Acton r. Woodgate ... ... ... ... 73, 75 
 
 Adair v Shaw ' ... ... ... ... .. 292 
 
 Adames v. Hallett ... ... .. ... ..'. 60 
 
 Adams v. Claxton ... ... ... .. ... 140 
 
 v. Clifton ... ... ... ... 261 
 
 v. St. Leger ... ... ... ... ... 341 
 
 Adams' Trust, Re ... ... ... ... ... 284 
 
 Addison v. Cox ... ... ... ... ... 280 
 
 Adlington v. Cann ... ... ... ... ... 35 
 
 Administrator-General of Madras v. Hawkins ... .., 222 
 
 Adnam v. Cole ... ... ... ... ... 353 
 
 Adurmom Devi r. Chowdhry Sibnarain Ktir ... ... ... 309 
 
 Advocate-General v. Fatima Sultani Begain ... ... 388, 389 
 
 v. Muhammad Hussen Husseni ... .. 390 
 
 - v. Vishvanath Atmaram ... ... ... 364 
 
 Adye . Feuilleteau ... ... ... ... ... 160 
 
 Aga Mahomed Kumul Tehranee v. Aga Abbas Tehranee ... 389 
 
 Aganoor r. Hogg ... ... ... ... ... 188 
 
 Agha Mahomed Ensoof Moosadee B. Abdool Hossein Khan ... 389 
 
 Agra Bank, Ex parte ... ... ... ... 278, 279 
 
 Agri Sliarma limbrandri v. Vistna Embrandri ... ... 405 
 
 Ahmed Mahomed Patel v. Adjein Dooply ... ... 187 
 
 Airey v. Hall ... ... ... ... ... 58 
 
 Ajey Ram v. Girdharee ... ... ... ... ... 312 
 
 Alchin's Trust, Re ... ... ... ... ... 359 
 
 Aldridge o. Westbrook ... ... ... ... ... 333 
 
 Alexander v. Alexander ... ... .. ... ... 240 
 
 v Mullins ... ... ... ... ... 344 
 
 r. The Duke of Wellington ... ... "... 125 
 
 Allen . Bonnett ... ... ... ... ... 62 
 
 . Jarvis ... ... ... ... ... 213 
 
 Aloksoondry Goopto c. Horolal Roy ... ... ... 106 
 
 Alton v. Harrison ... ... 82 
 
XIV TABLE OF CASES CITED. 
 
 Page 
 
 Alven v. Bond ... ... ... ... ... '260 
 
 A in and v. Bradbourne ... ... ... ... ... 213 
 
 Ames . Parkinson ... ... ... ... 139, 162 
 
 Amphlett v. Farke ... ... ... ... ... 85 
 
 Aucona o. Waddell ... ... ... ... ... 47 
 
 Anderson, Ex parts ... ... ... ... ... 331 
 
 In re ... ... ... ... ... 331 
 
 v. Elswortb. ... ... ... ... 117, 118 
 
 Andrew r. Trinity Hall ... ... ... ... ... 133 
 
 v. Wrigley ... ... ... ... ... 303 
 
 Andrews, Ex parte ... ... ... ... ... '251 
 
 v. Bousfield ... ... ... ... ... 280 
 
 v. Joakiin ... ... ... ... ... 350 
 
 Angell c. Dawson ... ... ... ... ... 220 
 
 Angelo, Re .. ... ... ... ... 418 
 
 Angerstein, Ex parte ... ... ... ... ... 346 
 
 u.Martin ... ... ... ... 162, 221 
 
 Angier v. Stannard ... ... ... ... 178, '269 
 
 Angus . Angus ... ... ... ... ... 29 
 
 Annersley r. Aslmrst ... ... ... ... ... 232 
 
 Anon, 4 Ir. Eq. Rep. ... ... ... ... ... 284 
 
 6 Madd., 10 ... ... ... ... ... 283 
 
 6 Madd., 11 ... ... ... ... ... 169 
 
 2 llnss., 350 ... ... ... ... .. 264 
 
 1 Salk., 155 ... ... ... ... ... 252 
 
 4 Sim., 359 ... ... ... ... ... 338 
 
 6 Ves., 632 ... ... ... ... ... 261 
 
 10 Ves., 103 ... ... ... ... ... '244 
 
 12 Ves., 5 ... ... ... .. ... 340 
 
 Antrobus v. Smith ... ... ... ... 53, 55 
 
 Anund Moyee Chowdhrain v. Boykant Nath Roy ... ... 377 
 
 Apsey, Ex parte. ... ... ... ... ... 319 
 
 Archer v. Hudson ... ... ... ... 112, 113 
 
 v. Preston ... ... ... ... ... 30 
 
 Ardglasse (Lord) v. Muscliauip ... ... ... 30, 31 
 
 Ardill v. Savage ... ... ... ... ... 331 
 
 Armitage v. Coates ... ... ... ... ... 40 
 
 Armstrong v. Armstrong ... ... ... ... ... 82 
 
 Armstrong's Settlement, Re ... ... ... ... 434 
 
 Arnold c. Garner ... ... .. ... 243, 251, 255 
 
 Arnould v. Grinstead ... ... ... ... ... 162 
 
 Arruth Misser v. Juggernath Indraswamee ... ... ... 374 
 
 Arthur v. (Ilarkson ... ... ... ... 58 
 
 v. Midland Railway Co. ... ... ... ... 88 
 
 Arundel (Lady) . Phipps ... ... ... ... 70 
 
 Ashburnham v. Thompson ... ... ... ... 313 
 
 Ashby v. Hlackwell ... ... ... ... ... 179 
 
 c. Palmer ... ... ... ... 320,321 
 
 Ashutosh Dutt v. Doorga Churn Chatterjee .... ... ... 373 
 
 Ashworth v. Hopper ... ... ... ... ... 35 
 
 Aston v. Wood ... ... ... ... 86, 357 
 
 Atterbury v. Wallis ... ... ... ... ... 280 
 
 Attorney-General v. Andrews ... ... ... ... 214 
 
TABLE OF CASES CITED. XV 
 
 Page 
 
 Attorney-General v. Aspinall ... ... 223, 288, 350 
 
 p.Avon (Portreeve of) ... ... ... 344 
 
 a. Bulliol College ... ... ... 344 
 
 , v. Bance ... 362 
 
 . p Blizard ... ... ... 362 
 
 v. Braudreth ... ... . 362 
 
 P. Brickdale ... ... ... 241 
 
 v. Brodie ... ... ... 380 
 
 . v. Browne's Hospital ... ... ... 368 
 
 v. Bushby ... ... ... 354 
 
 v. Caius College ... ... 130, 285 
 
 v. Chesterfield (Earl of) ... ... ... 215 
 
 v. Clarendon (Earl of) ... ... ... 260 
 
 p. Clarke ... ... ... 353 
 
 p. Cock ... ... ... 353 
 
 p. Coopers' Co. ... ... - 285 
 
 p. Cuining ... ... 346, 347 
 
 p. Duugars ... ... ... 347 
 
 p. Ded ham School ... ... ... 33 
 
 p. Dixie ... ... 140, 367 
 
 p. Downing (Lady) ... ... 282,283 
 
 p. Doyley ... ... ... 360 
 
 p. Dudley (Lord) ... ... ... 291 
 
 p. Eastlake ... ... ... 214 
 
 p. Exeter (Mayor of) ... ... ... 365 
 
 p. Fishmongers' Co. ... ... ... 350 
 
 p. Foundling Hospital ... ... 288, 367 
 
 p. Gaunt ... ... ... 367 
 
 p. Geary ... ... ... 221 
 
 p. Glegg ... ... 19,240, 242 
 
 p. Glynn ... ... ... 359 
 
 p. Haberdashers' Co. ... ... ... 355 
 
 p. Hankey ... ... ... 359 
 
 p. Harrow School ... ... ... 242 
 
 p. Herrick ... ... ... 358 
 
 p. Higham ... ... 138, 161 
 
 v. Ironmongers' Co. ... ... 354, 358, 359 
 
 p. Kell ... ... ... 362 
 
 i>. Lawes ... ... ... 353 
 
 p. Liverpool (Corporation of) ... 223, 288 
 
 p. London (City of) ... ... ... 347 
 
 p. Lonsdale (Earl of) ... ... ... 354 
 
 p. Magdalen College ... .. ... 368 
 
 p. Marchant ... ... ... 361 
 
 v. Margaret and Regius, Professors ... ... 354 
 
 v. Munro ... ... ... 156 
 
 p. Newark (Mayor of) ... ... ... 368 
 
 p. Norwich (Mayor of) ... ... ... 212 
 
 p. Painter-Stainers' Co. ... -- ... 354 
 
 p. Pearson ... 35, 215, 353, 362 
 
 p. Ranee .., ... ... 358 
 
 p. Sands ... ... ... 32 
 
 c. Scott ... ... ... 240 
 
XVI TABLE OF CASES CITED. 
 
 Page 
 
 Attorney-General v. Sherborne School ... ... ... 362 
 
 ----- p. Sidney Sussex College ... ... 357, 365 
 
 ---- p.Solly ... ... ... 318 
 
 ---- v. Sliimford (Mayor of) ... ... ... 362 
 
 ---- -- . Stephens .. ... ... 282 
 
 v. Stepney ... ... ... 353 
 
 v. Stewart ... ... 351, 358 
 
 ---- v. St. John's Hospital ... ... ... 358 
 
 - v. Sturge ... ... ... 362 
 
 v. Tancred ... ... ... 354 
 
 -- v. Tvndall ... ... ... ... 353 
 
 p. Wborewood ... ... ... ... 130 
 
 v. Windsor (Dean of) ... ... ... 86 
 
 ----- . Wyvi-le ... ... ... .. 346 
 
 Austen v. Taylor ... ... ... ... 20, 23 
 
 Aveling v. Knipe ... ... ... ... ... 87 
 
 Avery v. Griffin ... ... ... ... ... 131 
 
 Avison v. Holmes ... ... ... ... ... 47 
 
 Ayles v. Cox ... ... ... ... 438, 442 
 
 Ay liffe v. Murray ... ... .,. ... 244,248,262 
 
 .Aylwin v. Bray ... ... ... ... .., 192 
 
 Aylwin's Trusts, In re ... ... ... ... ... 45 
 
 Aziui-un-Nissa Begum v. Dale ... ... ... 60,64, 67 
 
 Saber's Trust, Re ... ... ... ... ... 76 
 
 Back v. Andrews ... ... ... ... 90, 94 
 
 Backhouse v. Backhouse ... ... ... ... ... 282 
 
 Bacon p. Bacon ... ... ... ... 198, 205 
 
 Badcock, Re ... ... ... ... ... 421 
 
 Baddley v. Baddley ... ... ... ... ... 55 
 
 Bage, Exparte ... ... ... ... ... 264 
 
 Bagnall v. Curl ton ... ... ... ... ... 255 
 
 Bagram v. Moses ... ... ... ... ... 28 
 
 Bagshaw v. Spencer ... .,. ... ... ... 20 
 
 Bailey v. Collett ... ... t .. . . ... 457 
 
 -- v. Gould ... ... .. ... 138,140 
 
 Bain v. Sadler ... ... ... ... ... 76 
 
 Bainbridge 0. Burton ... ... ... ... ... 345 
 
 Bainbrigge v. Blair ... ... ... 247,330,340,341 
 
 Baker v. Baker ... ... ... ... ... 260 
 
 -- c.Bradley ... .. ... ... 112,117 
 
 -- 0. Martin ... ... .. ... ... 247 
 
 -- 0. Monk ... ... ... ... ... 112 
 
 Balchen 0. Scott ... ... ... ... ... 236 
 
 Baldwin v. Bannister ... ... ... ... ... 251 
 
 Bale 0. Culeman ... ... ... ... ... 23 
 
 - v. Newton ... ... ... ... ... 68 
 
 Balfour p. AVelland ... ... ... ... ... 231 
 
 Balkrishna Vasndev v. Madhavrav Narayan .. ... ... 109 
 
 Ball v. Burnford ... ... ... ... ... 69 
 
 --- 0. Harris ... ... ... ... 170,230 
 
 Balls v. Strutt ...... ... ... 242, 287 
 
TABLE OF CASES CITED. XV11 
 
 Page 
 
 Balsh P. Hyam ... ... ... ... 214, 216 
 
 Baina Soonduree Dossee v. Bnma Soonduree Dossee ... ... 148 
 
 Bamanji Manikji p. Naoroji Palanji ... ... 14, 73 
 
 Bank of Hindustan, China, and Japan v. Nundolall Sen ... 28 
 
 Bankes v. Le Despencer ... ... ... ... 24 
 
 Bapujt Anditnun v. Umedbhai Hathesing ... ... ... 14 
 
 Bardswell v. Bardswell ... ... ... ... ... 79 
 
 Barker v. Peile ... ... ... ... ... 333 
 
 Barkley v. Reay (Lord) ... ... ... ... ... 340 
 
 Barling r. Bishopp ... ... ... ... 61, 64 
 
 Barnard v. Bajjshaw ... ... ... ... ... 239 
 
 Barnes r. Addy ... ... ... ... 132, 185 
 
 v. Grant ... ... ... ... ... 78 
 
 v. Pinkney ... ... ... .. ... 281 
 
 Barnett P. Blake ... ... ... ... ... 47 
 
 v. Sheffield ... ... ... ... ... 324 
 
 Barrack r. M'Cnlloch ... ... ... ... 60,68,92 
 
 Barrett v. Hartley ... ... ... ... ... 244 
 
 Barrs v. Fewkes ... ... ... ... ... 86 
 
 Barry, Ex parte ... ... ... ... ... 278 
 
 p. Barry ... ... ... ... ... 145 
 
 p. Steel ... ... ... ... ... 331 
 
 Bartlett v. Bartlett ... ... ... ... ... 336 
 
 v. Pickersgill ... ... ... ... 87, 88, 89 
 
 Barwell v. Barwell ... ... ... ... 119,252,261 
 
 Basnett p. Moxon ... ... ... ... ... 433 
 
 Basoo Dhul w. Kishen Chunder Geer Gossain ... ... 374 
 
 Bate v. Hooper ... ... ... ... 149,181,348 
 
 p. Scales ... ... ... ... ... 167 
 
 Bateinan v. Margerison ... ... ... ... ... 345 
 
 Bath v. Bradford (Earl of)... ... ... ... ... 168 
 
 Bathurst's Estate, Re ... ... ... ... ... 328 
 
 Batstone v. vSalter ... ... ... ... 54, 86, 88, 92 
 
 Battersby's Trusts, Re ... ... ... ... 436,438 
 
 Baugh p. Price ... ... ... ... ... 290 
 
 Baxter, Re ... ... ... ... 427, 438 
 
 Baycott, Re ... ... ... ... ... 435 
 
 Bayley v. Boulcott ... ... ... ... ... 58 
 
 Baylies p. Baylies ... ... ... ... ... 269 
 
 Baynard v. Woolley ... ... ... ... ... 180 
 
 Bayspoole v. Collins ... ... ... ... 69, 70 
 
 Beattie v. Johnstone ... ... ... ... ... 343 
 
 Beaumont p. Beaumont ... ... ... ... ... 340 
 
 p. Olivera ... ... ... ... ... 354 
 
 Beavan v. Oxford (Lord) ... ... ... ... ... 67 
 
 Bebee Jaun v. Meerza Mahomed Hadee ... ... ... 28 
 
 Beckford v. Beckford ... ... ... ... ... 91 
 
 p. Wade ... ... ... ... ... 303 
 
 Beecher p. Major ... ... ... ... ... 88 
 
 Bego Jan p. Luteefun ... ... ... ... ... 292 
 
 Belchier, Ex parte ... ... ... ... 222, 236 
 
 Belchior Francisco Ferras p. Roque Mariano Dos Angos ... 235 
 
 Bellasis v. Compton ... ... ... ... ... 89 
 
XV111 TABLE OF CASKS CITED. 
 
 Page 
 
 Bellasis's Trusts, lie ... ... ... ... 58, 8'2 
 
 Benbow v. Townaeud ... ... ... ... ... 89 
 
 Bence v. Gilpiu ... ... ... ... ... 1 ; 1- 
 
 Betui v. Dixon ... ... ... ... ... 149 
 
 Bennett, Ex parte ... ... 257, 259, 263, 289, "290, '291 
 
 v. BHI-J.MS ... .. ... ... ... 33-2 
 
 - v. AVyi'dham ... ... ... ... ... 215 
 
 Benson o. Whittam ... ... ... ... ... 80 
 
 Bentley v. Craven ... ... ... ... 107, 253 
 
 . Mackay ... ... ... ... 57, 72 
 
 Bergholt, Re ... ... ... ... ... .435 
 
 Berkhumpstead Free School, In re ... ... ... ... 368 
 
 Bernard v. Minshull ... ... ... ... 78, 79, 80 
 
 Berry, Ex parte ... ... ... ... ... 70 
 
 v. Briant ... ... ... ... ... 81 
 
 Bessey v. Windham ... ... ... ... ... 65 
 
 Bethell v. Abraham ... .. ...154,161,163,171,232 
 
 Beulah Park Estate, Re ... ... ... ... ... 216 
 
 Bheknarain Singh v. Jannk Singh ... ... ... ... 309 
 
 Bhoobun Moliini Debia . Hurrish Cliunder Chowdhry ... 40 
 
 Bhowany Sunkur Pandey v. Purrum Bebee ... ... ... 105 
 
 Bibby v. Thompson ... ... ... ... ... 82 
 
 Bibee Kuneez Fatima . Bibee Saheba Jan ... ... 381, 403 
 
 Bick 0. Motley ... ... ... ... ... 201 
 
 Biddies p. Biddies ... ... ... ... ... 81 
 
 Biddulph v. Williams ... ... ... ... ... 86 
 
 Bifield v. Taylor ... ... ... ... ... 341 
 
 Bignold's Trust?, Re ... ... ... ... ... 435 
 
 Bika Singh v. Luclmiau Singh ... ... ... ... 311 
 
 Bi 1 v. Cureton ... ... ... ... 65, 67, 71, 73 
 
 Billson v. Crofts ... ... ... ... ... 46 
 
 Bindasoondree Dnssea v. MeheroonUsa Khatoon ... ... 382 
 
 Bindley v. Mulloney ... ... ... ... ... 59 
 
 Bindoo Bassinee Dossee v. Boliechand Sett ... ... ... 146 
 
 Binks v. Micklethwait ... ... ... ... ... 217 
 
 Birch v. Wade ... ... ... ... 78, 283 
 
 Birch- Wolfe P. Birch ... ... ... ... ... 144 
 
 Bird, In re ... ... ... ... ... 236 
 
 v. Fox ... ... ... ... ... 231 
 
 v. Harris ... ... ... ... ... 86 
 
 . v. Johnson ... ... ... ... ... 41 
 
 v. Maybury ... ... ... ... ... 81 
 
 Birkett, In re ' ... ... ... ... ... 354 
 
 Birks v. Micklethwait ... ... ... ... ... 348 
 
 Biron v. Mount .... ... ... ... ... 76 
 
 Bisambhnr Naik r. Sudasheeb Muhapattur ... ... ... 308 
 
 Blackburn v. Edgeley ... ... ... .. ... 112 
 
 - - v. Stablea ... ... ... ... 22, 24 
 
 Blackford v. Davis ... ... ... ... ... 212 
 
 Blackie w. Clark ... ... ... ... ... 115 
 
 BliHl v. Bnmfield ... ... ... ... ... 32 
 
 Blake v. Blake ... ... ... ... ... 96 
 
 . Buubury ... ... ... ... ... 269 
 
TABLE OF CASES CITED. XIX 
 
 Page 
 
 Blakeney j>. Blakeney ... ... ... ... ... 82 
 
 Blancliard, Re ... ... ... ... 435, 438 
 
 Rlenkinsopp v. Blenkinsopp ... ... ... ... 61 
 
 Blewett r. MilleU ... ... ... ... .. 108 
 
 Bloye's Trust, Re ... ... ... ... 257, 260 
 
 Blundell's Trusts, Re ... ... ... ... ... 350 
 
 Bodenbani v. Hoskyns ... ... ... ... ... 109 
 
 Bodh Sinjih Doodhooria . Gunesh Clmnder Sen ... ... 103 
 
 Bone v. Cook ... ... ... ... ... 209 
 
 v. Pollard ... ... ... ... ... 95 
 
 Bonfield . Hiissell ... ... ... ... 47, 54 
 
 Bonitliorn v. Hockmore ... ... ... ... 212, 243 
 
 Bouncy v. Ridgard ... ... ... ... ... 303 
 
 Bonser v. Kinnear ... ... ... ... ... 78 
 
 Booth v. Booth ... ... 120,121,189,201, 203 
 
 v. Levcester ... ... ... ... ... 32 
 
 Borelmm v. Bijjnold ... ... ... ... ... 178 
 
 Borrell v. Dann ... ... ... ... .. 2:23 
 
 Boss v. Godsnll ... ... ... ... ... 161 
 
 Bostock v. Blakeney ... ... ... ... ... 167 
 
 v. Floyer ... ... ... ... 140, 179, 236 
 
 Bott v. Smith ... ... ... ... ... 61 
 
 Bottle v. Knocker ... ... ... ... ... 55 
 
 Bonlton, Ex purte ... ... ... ... ... 277 
 
 Bourke, Re .. ... ... ... ... 438 
 
 Boursot . Savage ... ... ... ... ... 293 
 
 Bousfield r. Hodges ~. ... ... ... ... 225 
 
 Bovy v. Smith ... ... ... ... ... 313 
 
 Bowden v. Henderson ... ... ... ... ... 177 
 
 v. Laing ... .,. ... ... ... 81 
 
 Bowes v. Strnthmore (Earl of) ... ... ... ... 221 
 
 . " City of Toronto" ... ... ... ... 255 
 
 Bowles v. Stewart ... ... ... ... ... 109 
 
 Bowra r. Wrisiht ... . ... ... ... ... 433 
 
 Brace v. Taylor ... ... ... .. ... 145 
 
 Brnckenbury v. Brnckenbury ... ... ... 19, 48 
 
 Brackenbury's Trusts, Re ... ... ... ... ... 435 
 
 Bradby v. Whitchurch ... ... ... ... ... 2'20 
 
 Brader v. Kerby ... ... ... ... ... 419 
 
 Bradford v. Belfield ... ... ... ... ... 240 
 
 Bradley v. Peixoto ... ... ... ... ... 41 
 
 Bradsliaw, Ex purte ... ... ... ... 420, 426 
 
 Bradwell v. Catclipole ... ... ... ... ... 235 
 
 Brajnath Baisakh v. Motilal Baisakh ... ... ... 268 
 
 Brandon v. Aston ... ... ... ... ... 47 
 
 t?. Robinson ... ... ... ... 41, 274 
 
 Brass's Trust. Re ... ... ... ... ... 427 
 
 Bray, Ex parte ... ... ... ... ... 212 
 
 v. West ... ... ... 133 
 
 Brearoliffe v. Dorriujrhm ... ... ... ... ... 282 
 
 Breeehloadini: Co , Re. ... ... ... ... ... 279 
 
 Breedon /. Breedon ... ... ... ... ... 231 
 
 Brice r. Stokes ... 183, 194, 195, 196, 198, 199, 201, . 205 
 
XX TABLE OF CASES CITED. 
 
 Page 
 
 Bridge v. Bradon ... ... ... ... ... 281 
 
 p. Brown ... ... ... ...212,2-21, 227 
 
 Bridgeman P. Green ... ... ... ... 115,117, 118 
 
 Bridger p. Rice ... ... ... ... ... 169 
 
 Bridgman v. Gill ... ... ... ... ... 344 
 
 Briggs v. Penny ... .. ... ... 78, 79 
 
 Bright p. North ... ... ... ... ... 214 
 
 Bright's Trusts, Re ... ... ... ... 278, 281 
 
 Brimho Mye Dibeea p. Ram Dolub Hor ... ... ... 1C5 
 
 Brindley P. Partridge ... ... ... ... ... 175 
 
 British Museum p. White ... ... ... ... ... 354 
 
 Broadbent r. Varley ... ... ... ... .. 278 
 
 Broadhurst v. Balgny ... ... ... ...163,189, 198 
 
 Brocksopp v. Barnes ... ... ... ... 244, 246 
 
 Brodie v. Barry ... ... ... ... ... 340 
 
 Brojo Kishoree Dassee v. Sreenath Bose ... ... ... 148 
 
 Mohun Doss p. Hurrololl Doss ... ... .. 364 
 
 Nath Ghose v. Koylash Chuuder Banerjee ... ... 104 
 
 Bromley v. Holland ... ... ... ... ... 344 
 
 Brooke v. Haynes ... ... ... ... 121, 123 
 
 Brooker v. Brooker ... ... ... ... ... 188 
 
 Brookman v. Rothschild ... ... ... ... ... 107 
 
 Brophy v. Bellamy ... ... ... ... 153, 154 
 
 Broughton v. Hroughton ... ... ... ... 244, 245 
 
 P. Mercer ... ... ... ... 28, 352 
 
 Bronn p. Kennedy ... ... ... ... 72, 114 
 
 Browell v. Reed ... ... ... ...171,340, 341 
 
 Brown P. Carter ... ... ... ... ... 118 
 
 . Casamajor ... ... ... ... 80, 82 
 
 p. DeTastet ... ... ... ... 244, 253 
 
 p. Higgs ... ... ... ... 78,282, 283 
 
 Brown's Trust, In re ... ... ... ... ... 37 
 
 Browne p. Blount ... ... ... ... ... 344 
 
 P. Cavendish ... ... ... ... ... 73 
 
 P. Kaban ... ... ... ... ... 449 
 
 P. Savage ... ... ... ... ... 281 
 
 Browne's Will, lie ... ... ... ... ... 272 
 
 Bruce P The Presbytery of Deer ... ... ... ... 357 
 
 Brudenell Elwes ... ... ... ... ... 38 
 
 Bruere P. Pemberton ... ... ... ... ... 167 
 
 Buchanan v. Hamilton ... ... ... ... ... 284 
 
 Buck p. Shippam ... ... ... ... ... 76 
 
 Buckeridge v. Glasse ... ... ... 120, 284 
 
 Buckhurst Peerage (The) ... ... ... ... ... 26 
 
 Buckland p. Papillon ... ... ... ... .. 449 
 
 Buckle P. Mitchell 
 Bndree Lall P. Kantee Lall 
 Buggins P. Yates ... 
 
 Bulbeck p. Silvester 
 Bulkley p. Eglinton (Earl of) 
 
 p. Wilford 
 
 Buller P. Plunkett 
 
 67 
 311 
 79 
 54 
 43.3 
 110 
 280 
 
 Bullock v. Thome ... ... ... ... ... 69 
 
TABLE OF CASES CITED. XXI 
 
 Page 
 
 Bullock p. Wheatley ... ... ... ... ... 138 
 
 Bulmer v. Hunter ... ... ... ... ... 61 
 
 Bunbury v. Bunbnry ... ... ... ... ... 32 
 
 Bungseedhur Khettry, Re ... ... ... ... ... 66 
 
 Bunwaree Chand Thakoor v. Mudden Mohun Chuttoraj ... 375 
 
 Burden v. Burden ... ... ... ... ... 244 
 
 Burdick v. Garrick ... ... ... ... 313, 318 
 
 Burge P. Brutton ... ... ... .. ... 245 
 
 Burgess v. Wlieate ... ... 6, 33, 157, 251, 256, 273, 346 
 
 Burke v. Jones ... ... ... ... ... 76 
 
 Burn v. Carvalbo ... ... ... ... ... 56 
 
 Burridge v. Row ... ... ... ... ... 323 
 
 Burrough v. Philcox ... ... ... ... ... 283 
 
 Burt, lie ... ... ... ... ... 442 
 
 Burton v. Wookey ... ... ... ... 107, 243 
 
 Burtoo Sing v. Ram Purmessur Singh ... ... ... 311 
 
 Bushnell v. Parsons . ... ... ... ... ... 81 
 
 Bute (Marquis of), Re ... ... ... ... .. 422 
 
 Butler p. Butler ... ... ... ... ... 217 
 
 p. Prendergnst ... ... ... ... ... 344 
 
 Buttanshaw v. Martin ... ... ... ... ... 271 
 
 Buxton v. Buxton ... ... ... ... 172, 173 
 
 Byam v. Bynm ... ... ... ... ... 242 
 
 Bykunt Natb Sen v. Gobo:iIIah Sikdar ... ... ... 107 
 
 Byne v. Blackburn ... ... ... ... ... 81 
 
 Byrchall v. Bradford ... ... ... ... ... 165 
 
 C. 
 
 Cadell v. Palmer ... ... ... ... ... 38 
 
 Cafe v. Bent ... ... ... ... ... 151 
 
 Caffrey v. Darby ... ... ... 137,138,184,213 
 
 Caldwall v. Baylis ... ... ... ... ... 144 
 
 Calisher v. Forbes ... ... ... ... ... 280 
 
 Camden (Marquis of) v. Murray ... ... ... 153, 154 
 
 Camoys (Lord) v. Best ... ... ... ... 327, 329 
 
 Campbell, Re ... ... ... ... ... 419 
 
 v. Allgood ... ... ... ... ... 145 
 
 p. Home ... ... ... ... 217,269.271 
 
 p. Walker ... ... 169, 258, 259, 260, 264, 265, 289 
 
 Candler . Tillett ... ... ... ... 138,205 
 
 Caney p. Bond ... ... ... ... ... 138 
 
 Carew, Re . .,. ... ... ... ... 281 
 
 Carpenter P. Heriot ... ... ... ... 112,261 
 
 Carr p. Ellison ... ... ... ... ... 3'20 
 
 p. Living ... ... .... ... ... 81 
 
 Carteret p. Petty ... ... ... ... ... 29 
 
 Cartwright p. Pettus ... ... ... ... ... 31 
 
 Cartwright's Trust, Re ... ... ... ... ... 438 
 
 Cary P. Gary ... ... ... ... ... 7* 
 
 Castle v. Castle ... ... ... ... ... 81 
 
 Cnstlemain (Lord) p. Lord Craven ... ... ... ... 144 
 
 Cater, Re ... ... ... ... ... 119 
 
 Cavaly Vencata Narrainapali p. The Collector of Masulipatam ... 31 
 
XXII TABLE OF CASES CITED. 
 
 Page 
 
 Cavendish P. Greaves ... ... ... ... ... 274 
 
 , Ex parts ... ... ... ... ... 294 
 
 < 'had wick v. Maden ... ... ... ... ... 89 
 
 Cliallen v. Shippam ... ... ... ... 141 
 
 Chnlmer c. Bradley ... ... 234, 260, 261, 303, 321, 326 
 
 Chaloner v. Butcher ... .. ... ... ... 321 
 
 Chambers p. Howell ... ... ... ... 254, 265 
 
 . Miuc-liiii ... ... ... ... 200,212,236 
 
 v. Waters ... ... ... ... ... 258 
 
 Champion v. Rigby ... ... ... ... .. 261 
 
 Chaplin v. Chaplin ... ... ... ... ... 48 
 
 v. Young ... ... ... ... ... 255 
 
 Charitable Corporation v. Sutton ... ... ... ... 136 
 
 Cherry v. Mott ... ... ... ... ... 360 
 
 Chertsey Market, lie ... ... ... ... 168, 242, 288 
 
 Chester P. llolfe ... ... ... ... 221,226 
 
 Chesterfield v. Janssen ... ... .. ... ... 261 
 
 Childers v. Childers ... ... ... ... 19,35,48 
 
 Chinna R*ngijangftr v. Subhniya Mudali ... .., ... 398 
 
 Ummayi r. Tegarai Clietti ... ... ... 48 
 
 Chippendale, Ex parte ... ... ... ... 215.216 
 
 Chottoo Misser v. Jeimh Misser ... ... ... ... 148 
 
 Chowdhry Herasiitoollah P. Brujosoondnr Roy ... ... 311 
 
 Chowne v. Baylis ... ... ... ... ... 61 
 
 Christ's Hospital v. Budgin ... ... ... ...90. 91 
 
 Christopher v. White ... ... ... ... ... 245 
 
 Christy P. Conrtenay ... ... .. ... 68, 92, 95 
 
 Chudleigh's Case ... ... ... ... ... 6 
 
 Chunder Nath Moitro v. Kristo Komid Singh ... ... 98 
 
 Chundramoney Dossee v. Aiorilul Mollick ... ... 40, 370 
 
 Church v. Brown ... ... ... ... ... 449 
 
 Estate Charity, He... ... ... ... ... 361 
 
 Churchill P. Hobson (Lady) ... ... ... ... 121 
 
 : c.Marks ... ... ... ... 46.47 
 
 Civil v. Rich ... ... ... ... ... 154 
 
 Clack v. Holland ... ... ... ... 139,184,324 
 
 Clacke p. Csirlon ... ... .. ... ... 245 
 
 Clark v. Taylor ... ... ... ... ... 359 
 
 Clark's Trust, lie ... ... ... ... ... 360 
 
 Clarke P. Malpas ... ... ... ... . . 112 
 
 p. Ormonde (Earl of j ... ... ... 157,158 
 
 v. Swaile ... ... ... ... 261, 263 
 
 v. Willott ... ... ... ... ... 67 
 
 Clarkson . Hanway ... ... ... ... .. 117 
 
 Clayton's Case ... ... ... ... 300. 302 
 
 Cle2<: v. Eumonson ... ... ... ... 87, 108, 118 
 
 v. Fishwick ... ... ... ... ... 108 
 
 Clements v. Hull ... ... ... ... ... 108 
 
 Clephane v. Lord Provost of Edinburgh ... ... ... 360 
 
 Clifton v. Goodbun ... ... ... ... ... 37 
 
 v. Lombe ... ... ... ... ... 78 
 
 Clough P. Bond ... .. ... 138, 160, 198, 236 
 
 o. Dixon ... ... ... 205 
 
TABLE OF CASES CITED. XX111 
 
 Page 
 
 Clougli v. Lambert ... ... ... ... ... 54 
 
 Clowdsley v. Pel hum ... ... ... ... ... 78 
 
 Clutton, Ex purte ... ... ... ... 132,435 
 
 Coupe v. Arnold ... ... ... ... ... 21 
 
 Coard v, Huldemen ... ... ... ... ... 85 
 
 Cock v. Goodfellow ... ... ... ... ... 161 
 
 Cocker v. Qmiyle ... ... ... ... ... 184 
 
 Cockrell v. Cholmeley ... ... .. ... ... 261 
 
 Coe's Trust. He ... ... ... ... ... 154 
 
 Coffin v. Coffin ... ... ... ... ... 145 
 
 Colchester (Mayor of ) P. Lowten ... ... ... ... 124 
 
 Cole P. Muddle ... ... ... ... 323, 3-24 
 
 v. Sewell ... ... ... ... ... 38 
 
 v. Wade ... ... ... ... ... 19 
 
 Colegrave P. Manby ... ... ... ... ... 108 
 
 Coleman v. Croker ... ... ... ... ... 65 
 
 v. Sarrel ... ... ... ... ... 54 
 
 Coles v. Trecotln'ck ... ... ... ... 259, 262, 263 
 
 Collins v. Burton ... ... ... ... ... 65 
 
 v. Gary ... ... ... ... ... 245 
 
 v. Viniug .. ... ... ... ... 154 
 
 Collinson, Re ... .. ... ... ... 442 
 
 v. Collinson ... ... ... ... ... 94 
 
 p. Lister ... ... ... ... 212, 216 
 
 p. Patrick ... ... ... ... ... 57 
 
 Columbine v. Penliall ... ... ... ... ... 61 
 
 Commissioners of Charitable Donations p. Archbold ... ... 284 
 
 of Public: Works v. Harby ... ... ... 280 
 
 Congregational Church Suiethwick, Re ... ... ... 241 
 
 Conry v. Caulfield ... ... ... ... 156, 343 
 
 Consett v. Bell ... ... ... ... 215,343 
 
 Consol Co. v. Kiley ... ... ... ... ... 281 
 
 Conyngham p. Conyngliaui... ... ... ... 121, 122 
 
 Good P. Cood ... ... .'.. ... ... 31 
 
 Cook o. Addison ... ... ... ... ... 319 
 
 Cooke P. Fryer ... ... ... ... ... 24 
 
 - P. Gwavas ... ... ... ... ... 83 
 
 - . v. Lamotte ... ... ... ... ... Ill 
 
 Cookney p. Anderson ... ... ... ... ... 28 
 
 Cookson-0. Cookson ... ... ... ... ... 320 
 
 Cooinbes p. Brookes ... ... ... ... ... 434 
 
 Coombs p. Coombs ... ... ... ... ... 222 
 
 Coope P. Garter ... ... ... ... ... 188 
 
 Cooper p. Cooper .,. ... .. ... ... 217 
 
 p. Phibbs ... ... ... ... ... 108 
 
 p. Wyatt ... ... ... ... ... 45 
 
 Copinger p. Crehane ... ... ... ' ... ... 155 
 
 Coppin p. Fernyhoujih ... ... ... ... ... 109 
 
 Cornbury (Lord) p. Middleton ... ... ... ... 273 
 
 Cornish p. Clark ... ... ... ... ... 64 
 
 Corser P. Cartwright ... ... ... ... 231,232 
 
 Cosser p. Radford ... ... ... ... ... 76 
 
 Cossinath Bysack p. Hurrosoondery ... ... ... ... 125 
 
XXIV TABLE OF CASES CITED. 
 
 Page 
 
 Costabidie 0. Costabidie ... ... ... ... 82,153 
 
 Cothay . Sydeiiliiim ... ... ... ... ... 176 
 
 Cottttin v. Eastern Counties R. Co. ... ... ... 201, 273 
 
 Cotteen v. Missing ... ... ... ... ... 57 
 
 Cotterill's Trust, Re ... ... ... ... ... 436 
 
 Cottington . Fletcher ... ... ... ... 48, 83 
 
 Course v. Humphrey ... ... ... ... ... 346 
 
 Courtenay v. Courtenay ... ... ... ... 331, 332 
 
 Courtney v. Ruiuley ... ... ... ... ... 213 
 
 Coutts r. Ackworth ... ... ... ... ... 72 
 
 Coventry (Mayor of) v. Attorney-General ... ... ... 284 
 
 v. Coventry ... ... ... ... ... 333 
 
 Cowell r. Gatcoinbe ... ... ... ... ... 237 
 
 Cowie, Re ... ... ... ... 142, 250 
 
 Cowley (Earl) v. Wellesley ... ... ... ... 220 
 
 Cowman v. Harrison ... ... ... ... ... 79 
 
 Cox v. Barnard ... ... ... ... ... 54 
 
 v. Bockett ... ... ... ... ... 47 
 
 r. Parker ... ... ... ... ... 157 
 
 Crabb v. Crabb ... ... ... ... 94, 95 
 
 Crabtree, lie ... ... ... ... ... 442 
 
 v. Bramble ... ... ... ... ... 321 
 
 Crackelt v. Bethune ... ... ... ... 167, 313 
 
 Cradock v. Piper ... ... ... ... ... 245 
 
 Craig 0. Wheeler ... ... ... ... ... 152 
 
 Crallan v. Oulttm ... ' ... ... ... ... 76 
 
 Cramer v. Cramer ... ... ... ,., ... 426 
 
 Cranstoun (Lord) v. Johnston ... ... ... 29, 31, 32 
 
 Craven v. Bradley ... ... ... ... ... 47 
 
 v. Craddock ... ... ... ... ... 171 
 
 Crawley v. Crawley ... ... ... ... ... 149 
 
 Crawshay . Collins ... ... ... ... 244, 253 
 
 Cresswell v. Dewell ... ... ... ... 176,192 
 
 Crewe . Dicken ... ... ... ... ... 240 
 
 Crinivasammal v. Vijayammal ... ... ... ... 51 
 
 Crockett v. Crockett ... ... ... ... ... 82 
 
 Croker v. Martin ... ... ... ... ... 68 
 
 Crop v. Norton ... ... ... ... 87, 89 
 
 Crosskill v. Bower ... ... ... ... ... 255 
 
 Crossley . Crowther ... ... ... ... ... 287 
 
 v. Elworthy ... ... ... ... 62, 64 
 
 Crowe v. Ballard ... ... ... ... ... 257 
 
 Crowe's Mortgage, Re ... ... ... ... ... 424 
 
 Cuff v. Hall ... ... ... 174 
 
 Cullingworth v. Loyd ... ... ... ... ... 7fi 
 
 Culpepper v. Aston ... ... ... ... . 83 
 
 Cummins . Cummins ... ... ... ... 121, 251 
 
 v. Bromfield ... ... ... ... ... 346 
 
 Cunningham v. Plunket ... ... ... ... ... 55 
 
 Cunynghame's Settlement, Re ... ... ... ... 40 
 
 Curnick v. Tucker ... ... ... ... ... 78 
 
 Currie v. Nind ... ... ... ... ... 68 
 
 Curteis's Trust, Re ... ... ... ... ... 86 
 
XXV 
 
 Curtis v. Lukin 
 
 r. Perry 
 
 77. Price 
 
 distance v. Cunningham 
 Cuthbert v. Purrier 
 
 D. 
 
 D'Adhemar (Viscountess) v. Bertrand 
 
 Dakin r. Whimper 
 
 Dalgleish's Settlement, Re ... 
 
 D'AImaine v. Anderson ... 
 
 . v. Moseley ... ... 
 
 Dalrymple r. Klioondkar Azeezul Islam 
 Damodar Mobapattur p. Birjo Mohapattur 
 Dance v. Goldingham 
 D'Arcy v. Croft 
 
 v. Hall 
 
 Darke v. Martyn ... 
 
 v. Williamson 
 
 Darvill v. Terry 
 
 Das Merces v. Cones ... .., 
 
 Daubeny v. Cockburn ... ... .. 
 
 Davall v. New River Co. ... ... 
 
 Davenport v. Stafford 
 
 Davey v. Durrant ... ... 
 
 v. Ward 
 
 Davies, Ex parte ... ... 
 
 r. Asnford ... ... ., 
 
 v. Hodgson ... ... . 
 
 r. Otty 
 
 Davis, Ex parte 
 
 v. Chanter ... 
 
 v. Dendy 
 
 .- v. Jenkins ... ... . 
 
 v. Spurling ... ... 
 
 Davis's Trust, Re ... ... 
 
 Dawson p. Clark ... 
 
 - v. Hearn ... ... . 
 
 p. Small 
 
 Day P. Croft ... ... 
 
 Dayal Jairaj v. Jivraj Ratansi 
 
 Deacon p. Colquhoun 
 
 Dearie p. Hall ... ... , 
 
 Debendronath Mullick v. Odit Churn Mullick, 
 
 Debnath Roy Chowdhry p. Gudadhar Dey 
 
 De Bussche p. Alt ... ... , 
 
 Deerhurst (Lord) p. Duke of St. Albans , 
 
 Deeth p. Hale 
 
 De Hoghton p. Money 
 
 Delane v. Delane ... ... 
 
 De la Salle v. Moorat 
 
 Delevante, Re 
 
 Delhi and London Bank P. Wordie .. 
 
 Page 
 
 272 
 
 35 
 
 65 
 
 86 
 
 177 
 
 ... 455 
 ... 67 
 423, 437 
 ... 328 
 ... 85 
 .. 386 
 ... 312 
 233, 288 
 ... 221 
 ... 252 
 ... 142 
 215, 220 
 .. 61 
 350, 352 
 ... 65 
 
 157 
 
 167 
 
 ... 222 
 ... 242 
 ... 442 
 ... 321 
 ... 180 
 48, 59, 90 
 ... 328 
 ... 434 
 ... 212 
 ... 365 
 
 109, 205, 236, 237 
 418, 434 
 86, 209 
 ... 272 
 ...49, 85 
 ... 340 
 ... 292 
 
 89 
 
 ... 276 
 ... 377 
 ... 101 
 ... 190 
 24 
 
 ... 271 
 
 65, 67 
 
 ... 87 
 
 ... 174 
 
 ... 188 
 
 28 
 
 D 
 
TABLE OF CASES CITED. 
 
 Pag-e 
 
 Delroos Banco Begum . NawabSyucl Ashgur Ally Khan, 384, 404, 405 
 
 Delrus Banoo Begum v. Hadjee Aboor lluimiau ... ... 404 
 
 DeManneville v. Crouipton... ... ... ... ... 242 
 
 Denning v. Ware ... ... ... ... ... 54 
 
 Dennis, Re ... ... ... ... ... 436 
 
 Dent v. Bennett ... ... ... ... 111,115 
 
 Dentou . Davies ... ... ... ... .. 295 
 
 v. Den ton ... ... ... ... 143, 263, 269 
 
 DeSouza r. DeSouza ... ... ... 137,149,151,166,173 
 
 v. The Secretary of Shite ... ... ... ... 121 
 
 De Themmines v. DeBonnestal ... ... ... ... 361 
 
 Dettinar v. AJetropolitau and Provincial Bank... ... ... 113 
 
 Devaynes v. Robinson ... ... .. 170, 174, 184, 344 
 
 Devey v. Thornton ... ... .. ... 178,269 
 
 DeVisme, Re ... ... .. ... 91,92 
 
 Devoy v. Devoy ... ... .. ... ... 95 
 
 Dewar v. Maitlnnd ... ... .. ... ... 418 
 
 Dhanjibhui v. Kharsetji Ratnagar ... .. ... ... 14 
 
 Dhonender Chunder Mookeijee v. Matty Lall Mookerjee ... 258 
 
 Dhurm Das Pandey v. M. S. Saiua Soondii Dibiah ... ... 98 
 
 Singh u. Kissen Singh ... ... ... 398,402 
 
 Dibbs v. Goren .,. ... ... ... ... 180 
 
 Dickinson's Trusts, Re ... ... ... ... ... 435 
 
 Dickson v. Swansea Railway Co. ... ... ... ... 274 
 
 Dilkes v. Broadmead ... ... ... ... ... 181 
 
 Dillon v. Coppin ... ... ... ... 54, 55 
 
 Dilwyn v. Llewellyn ... ... ... ... 54, 59 
 
 Dimes v. Scott ... ... ... ... ... 193 
 
 Dimsdale v. Dimsdale ... ... ... ... ... 118 
 
 Dix v. Burford ... ... ... ... ... 123 
 
 Dixon v. Gayfere ... ... ... ... ... 321 
 
 Dobson v. Land ... ... ... ... 140, 251 
 
 Docker v. Somes ... ... ... ... 251,253,315 
 
 Dodkin v. Brunt ... ... ... ... ... 335 
 
 Doe o. Ball ... ... ... ... ... 59 
 
 . Godwin ... ... ... ... ... 335 
 
 r. Harris ... ... ... ... 120,121,133 
 
 -- d. Howard v. Pestonji Manockji ... ... ... 372 
 
 d. Jaun Bibee v. Abdoollah Barber ... ... 382, 383, 388 
 
 v. Manning ... ... ... ... ... 61 
 
 v. Knight ... ... ... ... ... 72 
 
 v. Roberts ... ... ... ... ... 48 
 
 v. Routledge ... ... ... ... ... 68 
 
 c. Riislmm ... ... .. ... 60, 68, 72 
 
 - v. Webber 
 
 Dolan v. Macdermot 
 Dolder v. Bank of England... 
 Dolphin v. Aylward 
 Donaldson v. Donaldson ... 
 Donzelle v. Kedarnath Chuckerbuttv 
 
 67 
 19, 357 
 ... 337 
 ...67,68 
 ... 56 
 101 
 
 Doorga Pcrshad Roy Chowdhry v. Tarra Pershad Roy Chowdhry 314 
 Doran v. Wiltshire ... ... ... ... ... 231 
 
 Dorchester (Lord) v. Earl of Effingham ... ... ... 24 
 
TABLE OF CASES CITED. XXV11 
 
 Page 
 
 Dorin r. Dorin ... ... ... ... ... 37 
 
 Dornford v. Dornford ... ... ... ... . 166 
 
 Douglas v. Arcbbutt ... ... ... ... 247,248,255 
 
 v. Congreve ... ... ... ... ... 23 
 
 Dove v. Everard ... ... ... ... ... 122 
 
 Dowley v. Winfield ... 177 
 
 Down v. Worrall ... ... ... ... ... 360 
 
 Dowries v. Bullock ... ... ... ... ... 180 
 
 - v. Grazebrook ... ... ... 168, 258, 259, 262, 264 
 
 Doyal Chand Mullick v. Syud Kiramut AH ... ... 381,385,388 
 
 Doyle v. Blake ... ' ... 121, 132, 177, 200, 205, 235, 238 
 
 Doyley v. Doyley ... ... ... ... ... 360 
 
 Doyly v. Sherratt ... ... ... ... ... 240 
 
 Drake v. Whitmore ... ... ... ... ... 170 
 
 Draper's Settlement, In re ... ... ... ... 415,436 
 
 Drayson v. Pocock ... ... ... ... ... 168 
 
 Drew v. Martin ... ... .. ... 68,90,92,94 
 
 Drummond v. Tracey ... .. ... ... ... 131 
 
 Dubless v. Flint ... ... ... ... ... 336 
 
 Duf'aur v. The Professional Life Assurance Co.. ... ... 278 
 
 Dulwich College, In re ... ... ... ... ... 364 
 
 Dumas, Ex parte ... ... ... ... ... 131 
 
 Dummer . Pitcher ... ... ... ... 92, 94, 95 
 
 Dumper v. Dumper ... ... ... ... ... 94 
 
 Dunbar v. Tredennick ... ... ... 261,289,291,292,293 
 
 Duncombe v. Nelson ... ... ... ... ... 226 
 
 Dunnage v. White ... ... ... ... ... 85 
 
 Dunne v. Snowden ... ... ... ... ... 177 
 
 Durga Pershad v. Asa Ram ... ... .. .. 305 
 
 Dwarkanath Bysack v. Burroda Pershad Bysack ... ... 371 
 
 Dyer . Dyer ... ... ... ... 86, 90, 91 
 
 Dyster, Ex parte ... .. ... ... ... 35 
 
 B. 
 
 East India Co. p. Henchman ... ... ... ... 107 
 
 East Indian Railway Co. v. The Bengal Coal Co. ... ... 28 
 
 Eastern Counties Railway Co. v. Hawkes ... ... ... 171 
 
 Eaton v. Watts ... ... ... ... ... 79 
 
 Eaves v. Hickson ... ... ... ... 177,179,236 
 
 Ebrand v. Dancer ... ... ... .. ... 88 
 
 Kde P. Knowles ... ... ... ,.. 64, 67 
 
 Edenborough v. Archbishop of Canterbury ... ... ... 347 
 
 Edwards v. Grove ... ... ... ... 226, 283 
 
 v. Harben ... ... ... ... ... 61 
 
 v. Jones ... ... ... ... ... 56 
 
 v. Lewis ... ... ... ... ... 107 
 
 v. Warden ... ... ... ... ... 28 
 
 Eeles v. England ... ... ... ... ... 78 
 
 Egbert v. Butter ... ... ... ... ... 138 
 
 Egerton v. Earl Brownlow ... ... ... ... ... 20 
 
 Eland P. Eland ... ... ... ... 230,231 
 
 Elder widow of Raja Chutter Sein P. Younger widow of Raja 
 
 Chutter Sein 376 
 
XXviil TABLE OF CASES CITED. 
 
 Page 
 
 Ellerthorpe, Re ... ... ... ... ... 4-20 
 
 Elliot v. Elliot ... ... ... ... ... 95 
 
 Elliott v. North-Eastern Railway Co. ... ... ... 145 
 
 Ellis v. Barker ... ,.. ... ... ... 153 
 
 v. Houston ... ... ... ... ... 36 
 
 v. Selby ... ... ... ... ... 356 
 
 Ellis's Settlement, He ... ... ... ... 427, 428 
 
 Ellisoi^p. Airey . . ... ... ... ... 247 
 
 v. Ellison 
 Ellison's Trust, Re 
 Else v. Barnard 
 Elsee, Ex parts 
 Elsey v. Lntyens 
 Emmet v. Clarke 
 England . Downs 
 Ernest v. Croysdill 
 Espin . Pemberton 
 
 53, 54 
 
 59, 71 
 
 133, 435 
 225 
 212 
 3-46 
 328, 435 
 ... 137 
 ... 297 
 280 
 
 Evan v. The Corporation of Avon ... ... ... 124,130 
 
 Evans, lie ... ... ... ... ... 218 
 
 v. Bear ... ... ... ... ... 141 
 
 v. Bicknell ... ... ... ... ... 212 
 
 - v, Coventry ... ... ... ... ... 340 
 
 0. John 122 
 
 v. Jones 
 
 v. Stokes 
 
 Evelyn v. Templar 
 Everett v. Prythergch 
 Evroy v. Nicholas 
 Exhall Coal Co., Re 
 
 ... 62 
 
 ... 345 
 
 54 
 
 289, 340 
 
 ... 128 
 
 215 
 
 Eyre v. Shaftesbury (Countess of) ... .. ... ... 335 
 
 v. Dolphin ... ... ... ... ... 109 
 
 Eyston, Ex parte ... ... ... ... ... 47 
 
 Faez Buksh Chowdhry v. Fukeeroodeen Mahomed Ahnssun Chow- 
 
 dhry ... ... ... ... ... 102 
 
 Fagg's Trust, Re ... ... ... ... ... 328 
 
 Fakurudin Sahib v. Ackeni Sahib ... ... ... 397, 402 
 
 Falkner r. The Equitable Society ... ... .. ... 224 
 
 Farmer v. Dean ... ... ... ... ... 265 
 
 Farr v. Sheriffe ... ... ... ... ... 346 
 
 Fausset v. Carpenter ... ... ... ... ... 47 
 
 Fawcett v. Whitehouse ... ... ... ... ... 107 
 
 Fearns . Young ... ... ... ... 149,213 
 
 Featherstonhaugh v. Fenwick ... ... ... ... 108 
 
 Fegredo v. Mahomed Mudessur ... ... ... ... 385 
 
 Fellows v. Mitchell ... ... ... ... ... 194 
 
 Fellows' Settlement, Re ... ... ... ... ... 442 
 
 Fenwick v. Greenwell ... ... ... ... 123,184 
 
 FeoSees of Heriot's Hospital . Ross ... ... ... 212 
 
 Fergusons. Ferguson ... ... ... ... ... 141 
 
 v. Todmau ... ... ... ... ... 83 
 
 Ferrars v. Cherry ... ... ... ... ... 293 
 
TABLE OF CASES CITED. XXIX 
 
 Page 
 
 Field v. Donougbmore (Lord) ... ... .. 76,118 
 
 . P. Peckett ... ... ... ... 173, 221 
 
 Finch P. Finch ... ... ... ... 90,94 
 
 p. Pescott ... ... ... ... ... 216 
 
 Finden P. Stephens ... ,.. ... ... 80,216 
 
 Finlay p. Howard ... ... ... ... ... 284 
 
 Firmin p. Pulhum ... ... ... ... 119,269,271 
 
 Fish p. Klein ... ... ... ... ... 129 
 
 Fisk p. Attorney-General ... ... ... 49. 360 
 
 Fitch P. Weber ... ... ... ... 85, 86 
 
 Fitzgerald, In re ... ... ... ... ... 331 
 
 - P. Jervoise ... ... ... ... ... 173 
 
 Fletcher p. Fletcher ... ... ... 54,58,72,287 
 
 p. Green ... ... ... ... 163,193 
 
 Flockton P. Banning ... ... ... ... 253,320 
 
 Floyer P. Bankes ,.. ... ... ... ... 38 
 
 Foley v. Burnell ... ... ... ... ... 287 
 
 P. Wontner ... ... ... ... 335, 362 
 
 Folkingham v. Croft ... ... ... ... ... 449 
 
 Forbes p. Bull ... ... ... ... ... 78 
 
 P. Limond ,,. ... ... ... ... 76 
 
 . p. Peacock ... ... ... ... ... 231 
 
 p. Iloss ... ... ... ... 161,313 
 
 Ford P. Hopkins ... ... ... ... ... 297 
 
 p. Stuart ... ... ... ... ... 69 
 
 p. White ... ... ... ... ... 3-24 
 
 Fordham P. Speight ... ... ... ... ... 78 
 
 p. Wallis ... ... ... ... ... 181 
 
 Fordyce v. Bridges ... ... ... ... ... 283 
 
 p. Willis ... ... ... ... 52, 90 
 
 Forrest p. Forrest ... ... ... ... .. 91 
 
 Forshaw v. Higginson ... ... ... 220,221,222,331,332 
 
 v. Welsby ... ... ... ... 59,71,1)5 
 
 Forster P. Abraham ... ... ... ... 132,329 
 
 p. Ridley ... ... ... ... ... 244 
 
 Fortescue P. Barnett ... ... ... ... 56,209,278 
 
 Fosbroke P. Balguy ... ... ... ... ... 252 
 
 Foster P. Cockrell ... ... ... ... ... 281 
 
 . p. Dawber ... ... ... ... ... 133 
 
 . p. Deacon ... ... ... ... ... 83 
 
 p. Parker ... ... ... ... ... 433 
 
 Fowkes P. Pascoe ... ... ... ... 85, 86, 92, 93 
 
 Fowler v. Fowler ... ... ... ... 49, 355 
 
 p. lleynal ... ... ... ... ... 162 
 
 Fox P. Fox ... ... ... ... 79, 81 
 
 P. Hawkes ... ... ... ... ... 55 
 
 p. Mackreth ... ... ... ... 257, 291 
 
 Francis P. Francis ... ... ... ... 163,215 
 
 Fraser p. Palmer ... ... ... ... ... 244 
 
 - P Thompson ... ... ... ... ... 69 
 
 Frederick P. Hartwell ... ... ... ... ... 175 
 
 Freeman p. Cox ... ... ... ... ... 338 
 
 p. Fairlie 52, 133, 157, 336, 339 
 
XXX TABLE OF CASES CITED. 
 
 Page 
 
 Freeman v. Pope ... ... ... ... 61, 64 
 
 French v. Davidson ... ... ... ... ... 242 
 
 v. French ... ... ... ... ... 64 
 
 v. Hobson ... ... ... ... ... 192 
 
 Freslifield's Trust, In re ... ... ... ... ... 277 
 
 Fritli v. Cnrtlaml ... ... ...131,156,296,297,335 
 
 Frodsham v. Froclsbam ... ... ... ... ... 439 
 
 Fry v. Fry ... ... ... 140,174,2-21,225 
 
 Fryer, lie ... ... ... ... 171, 188, 194 
 
 Fulliam, Re ... ... ... ... ... 442 
 
 Fuller p. Knight ... ... ... ... ... 169 
 
 Futtoo Biboe v. Bhurrutlall Bhukut ... ... ... 386 
 
 Futvoye v. Kenuard ... ... ... ... ... 438 
 
 Fyler 77. Fyler ... ... ... ... ... 184,240 
 
 G. 
 
 Gale v. Williamson ... ... ... ... ... 62 
 
 Games, Ex parts ... ... ... ... ... 62 
 
 Ganeiulra Mohan Tagore v. Upendra Mohun Tagore ... 11, 157 
 
 Ganes Singh v. Ilamgopal Singh ... ... ... ... 403 
 
 Gangabai v. Thava Mulla ... ... ... ... 358,371 
 
 Gardiner v. Downes ... ... ... ... 271,331,332 
 
 v. Fell ... ... ... ... 52,133 
 
 Gardner p. Cowles ... ... ... ... 418,431 
 
 v. Ennor ... ... ... ... ... 114 
 
 Gardner's Trusts, Re ... .. ... ... ... 421 
 
 Garner v. Hannyngton ... ... ... ... . 211 
 
 Garrard v. Lord Lauderdale ... ... ... 54, 73, 74, 75 
 
 Garrett v. Noble ... ... ... ... 138,173 
 
 v. Wilkinson ... ... ... ... 92.110 
 
 Garrick v. Taylor ... ... ... ... 88, 89 
 
 Garth v. Cotton ... ... ... ... 143,144,145 
 
 Garthshore v. Chalie ... ... ... ... ... 221 
 
 Gartside's Estate, Re ... ... ... ... ... 434 
 
 Gascoigne v. Thwing ... ... ... ... ... 88 
 
 Gaskell v. Harinan ... ... ... ... ... 137 
 
 Gaunt v. Taylor ... ... ... ... ... 346 
 
 Gee v. Liddell ... ... ... ... ... 53 
 
 Gent P. Harrison ... ... ... ... ... 220 
 
 George v. George ... ... : ... ... ... 221 
 
 Ghost v. Waller ... ... ... ... ... 236 
 
 Gibbins v. Taylor ... ... ... ... ... 184 
 
 Gibbs v. Ramsey ... ... ... ... ... 86 
 
 Gibson v. Jeyes ... ... ... ... 111,259,262 
 
 . v. Overbnry ... ... ... ... ... 278 
 
 n. Russell ... ... ... ... ... 117 
 
 . p. Smith ... ... ... ... ... 145 
 
 p. Wells ... ... ... ... ... 143 
 
 Giddings p. Giddings ... ... ... ... 108, 109 
 
 Gilbert P. Overton ... ... ... ... 56, 57, 71, 72 
 
 Gill P. The Attorney-General ... ... ... ... 205 
 
 Gillett P. Peppercorn ... ... ... ... ... 107 
 
 Gillies P. Longlands ... ... 321 
 
TABLE OF CASES CITED. XXXi 
 
 Page 
 
 Girdharee Lall v. Kuntoo Lall ... ... ... ... 308 
 
 Gisborne . Gisborne ... ... ... ... ... 154 
 
 Gladdon v. Stoneman ... ... ... ... ... 340 
 
 Glaister p. Hewer ... ... ... ... ... 92 
 
 Glanville's Trusts, Re ... ... ... ... ... 431 
 
 Glegg v. Rees ... ... ... ... ... 71 
 
 Gloucester (Corporation of) . Wood ... ... ... 356 
 
 (Mayor of) v. Osborn ... ... ... ... 356 
 
 Glynn v. Hood ... ... ... ... ... 281 
 
 Gnanabhai . Srinivasa ... ... ... ... 60, 63, 105 
 
 Gobiiuhnaiii Dasi v. Shain Lai Bysak ... ... .. 147 
 
 Godden v. Crowlmrst ... ... ... .".. ... 44 
 
 Godfrey v. Watson ... ... ... ... ... 212 
 
 Godsal v. Webb ... ... ... ... ... 57 
 
 Gogun Chunder Sein v. Joydoorga ... ... ... ... 143 
 
 Goldsmith v. Russell ... ... ... ... ... 65 
 
 Goluck Monee Dassee v. Kislienpersad Kanoongoe ... ... 147 
 
 Gomley v. Wood ... ... ... ... 244, 246 
 
 Goodie's Case ... ... ... ... ... 59 
 
 Goode v. Burton ... ... ... ... 137,211 
 
 Goodman v. De Beauvoir ... ... ... ... ... 288 
 
 Goodright v Moses ... ... ... ... ... 67 
 
 Goodson v. Ellison ... ... ... ... 217, 270, 273 
 
 Goodwin v. Fielding ... ... ... ... ... ]gg 
 
 Goodwin's Trust, Re ... ... ... ... ... 35 
 
 Gopal Chand Pande v. Babu Kunwar Singh ... ... ... 359 
 
 Gopee Krist Gosain v. Gungapersaud Gosain ... ... 13, 98, 99, 100 
 
 Gopeenath Naik v. Jadoo Ghose ... ... ... ... 107 
 
 Gordon, Re ... ... ... ... ... 103 
 
 v. Traill ... ... ... ... ... 213 
 
 Gore . Bowser ... ... ... ... ... 123 
 
 Goring v. Bickerstaff ... ... ... ... ... 273 
 
 Gosling v. Gosling ... ... ... ... 90, 272 
 
 Gossain Dowlut Geer v. Bissessur Geer ... ... ... 373 
 
 Gott v. Nairne ... ... ... ... ... 49 
 
 Gough v. Bage ... ... ... ... 431, 432 
 
 Gould P. Fleetwood ... ... ... ... 248 
 
 Goureekanth Dass v. Bhogobutty Dassee ... ... ... 147 
 
 Governesses' Institution v. Rusbridger ... ... ... 333 
 
 Governors of Christ's Hospital, Re ... ... ... 171 
 
 Gower v. Mainwaring ... ... ... ... 19, 283 
 
 Grace v. Baynton ... ... ... ... ... 433 
 
 Graham v. Birkenhead Railway Co. ... ... ... 190 
 
 v. Hill ... ... ... ... ... jo! 
 
 Grant v. Grant ... ... ... ... 55 53 
 
 Grant's Trusts, Re ... , ... ... ... 44-2 
 
 Granville (Earl) . M'Neile ... ... ... ... 122 
 
 Graves, Ex parte ... ... ... ... ... 135 
 
 . Dolphin ... ... ... ... 41 274 
 
 r. Strahan ... ... ... ... 137', jfio 
 
 Gray v. Haig ... ... ... ... 157,318 
 
 v. Lewis ... ... ... ... ... 292 
 
XXX11 TABLE OF CASES CITED. 
 
 Page 
 
 Grayburn v. Clnrkson ... ... ... ... 173 
 
 Great Luxembourg Railway Co. v. Mngnny ... ... ... 254 
 
 Greedliaree Doss v. Nuudo Kissore Doss ... ... ... 378 
 
 Green, Re ... ... ... ... 439, 453 
 
 - . Hank of England ... ... ... 88 
 
 v. Britten .. ... 151 
 
 . Folgham 
 v. Ingham 
 v. Mandm 
 
 . Rutherford 
 v. Rutherfortb 
 v. Spicer 
 
 25 
 
 278 
 79 
 130 
 368 
 41, 42, 274 
 
 Greender Chunder Gliose v. Mackintosh ... 186, 231, 294, 304 
 
 Greendy v. Buckeridge ... ... ... ... ... 435 
 
 Greenhouse, Ex parte ... ... ... ... ... 285 
 
 Greening v. Beckford ... ... ... ... ... 281 
 
 Greenwood v. Wakeford ... ... ... ... 333 
 
 Gregory v. Gregory ... ... ... ... ... 291 
 
 Grenville Murray . Clarendon (Earl of) ... ... ... 217 
 
 Grey v. Grey ... ... ... ... 90, 94, 95, 96 
 
 Griffin, Ex parte ... ... ... ... ... 240 
 
 v. Griffin ... ... ... ... 107, 108 
 
 Griffith v. Evans ... ... ... ... ... 78 
 
 v. Rickets ... ... ... ... ... 73 
 
 Griffiths v. Porter ... ... ... ... 180,236 
 
 - w.Robins ... ... ... ... ... 117 
 
 Griesbach v. Fremantle ... ... ... ... ... 321 
 
 Grigley v. Cox ... ... ... ... ... 324 
 
 Groom v. Booth ... ... ... ... ... 231 
 
 Grose v. Amirtamayi Dassi ... ... ... ... 146 
 
 Groves v. Groves ... ... ... 35, 48, 87, 88, 89 
 
 Gubbins v. Creed ... ... ... ... ... 251 
 
 Gude v. Worthington ... ... ... ... ... 242 
 
 Guibert's Trusts, Re ... ... ... ... ... 330 
 
 Gulam Hussain Saib Saiyad v. Adji Ajam Saib Kuraishi 385, 387 
 
 Gully v. Bishop of Exeter ... ... ... ... 70 
 
 . v. Cregoe ... ... ... ... ... 82 
 
 Guuson v. Simpson ... ... ... ... ... 432 
 
 H. 
 
 Habergliam v. Vincent ... ... ,.. ... ... 85 
 
 Endley, Ex parte ... ... ... ... 328, 434 
 
 Haigh v. Kaye ... ... ... ... 48, 49, 85 
 
 Hajee Kalub Hossein v. M. S. Meherun Bebee ... 382,405 
 
 . Nooroollah v. Meer Waris Hossein ... ... ... 390 
 
 Hakeem Meah v. Beejoy Patuee ... ... ... ... 104 
 
 Haldenby . Spofiorth ... ... ... ... .. 170 
 
 Hale v. Saloon Omnibus Co ... ... ... 60,61 
 
 Hales v. Cox ... ... ... ... 54, 68, 72 
 
 Hall 0. Franck ... ... ... ... ... 240 
 
 , .v. Hall ... ... 71 
 
 v. Hallet ... ... 257,265,289,291,313.347 
 
 . v. Laver ... ... ... ... ... 215 
 
TABLE OF CASES CITED. XXX111 
 
 Hall v. Noyes ... ... ... ... ... 261 
 
 r. Palmer ... ... ... ... ... 54 
 
 v. Warren ... ... ... ... ... 361 
 
 Hallett's Estate, Re ... ... ... ... 141,300 
 
 Hiilliday v. Hudson ... ... ... ... ... 84 
 
 Hamilton p. Ball ... ... ... ... ... 48 
 
 v. Denny ... ... ... ... ... 108 
 
 p. Fry ... ... ... ... ... 330 
 
 . Waring ... ... ... ... ... 35 
 
 p. Wright ... ... ... ... 243,251,289 
 
 Hammond P. Neame ... ... ... ... ... 81 
 
 p.Walker ... ... ... ... ... 338 
 
 Hampshire v. Hrndlev ... ... ... ... ... 269 
 
 Hanbury p. Kirkland ... ... ... 163,195,198,199 
 
 o. Spooner ... ... . ... ... ... 248 
 
 Hancom a. Allen ... ... ... ... ... 198 
 
 Hankey v. Garrett ... ... ... ... ... 313 
 
 Hannah v. Hodson ... ... ... ... ... 271- 
 
 Hanson . Gardiner ... ... ... ... ... 145 
 
 Harbin v. Darby ... ... ... ... 245, 249 
 
 Harcourt . Seymour ... ... .. ... ... 322 
 
 Harding p. Glynn ... ... ... ... ... 78 
 
 Hanlwicke (Lord) p. Vernon ... ... ... 289, 291 
 
 Hardy P. Caley ... ... ... ... ... 184 
 
 Harford's Trusts. Tie ... ...' ... ... ... 435 
 
 Hargtliorpe P. Milforth ... ... ... ... ... 201 
 
 Ilarland P. Binks ... ... ... ... 62, 76 
 
 p. Trigg ... ... ... ... 78, 79 
 
 Harm.in P. Richards ... ... ... ... 61, 69 
 
 Harper P. Hayes ... ... ... ... ... 169 
 
 Harris P. Harris ... ... ... ... 180,284 
 
 p. Payne ... ... ... ... .. 151 
 
 p. Trenienheere .. ... ... ... ... 114 
 
 Harrison p. Asher ... ... ... ... ... 208 
 
 -- P. Harrison ... ... ... ... ... 167 
 
 p. Randall ... ... ... ... ... 220 
 
 p. Stewardscn ... ... ... ... ... 345 
 
 p. Tliexton ... ... ... ... 139,162 
 
 Harrison's Trust, Re ... ... ... ... 435, 437 
 
 Hurt p. Debenham ... ... ... ... ... 240 
 
 p. Tribe ... ... ... ... ... 78 
 
 Hartley P. Burton ... ... ... ... ... 270 
 
 Hartnall, Re ... ... ... 427 
 
 Harvey P. Mount ... ... ... ... ... 115 
 
 Hatch P. Hatch ... ... ... ... 114,118 
 
 Ilathornthwaite P. Russel ... ... ... 289, 340 
 
 Hatton p. May ... ... ... ... ... 46 
 
 Havelock's Trust, Re ... ... ... ... ... 436 
 
 Havers p. Havers ... ... ... ... ... 340 
 
 Hawkins' Trusts, Re ... ... ... ... ... 248 
 
 Hay P. Bowen ... ... ... ... ... 178 
 
 p. Coventry (Earl of) ... ... 38 
 
 Hays, Ex parte ... ... ... ... ... 227 
 
XXXIV TABLE OF CASES CITED. 
 
 Page 
 
 Hayter . Trego ... ... ... ... ... 359 
 
 Hay wood v. Ovey ... ... ... ... ... 344 
 
 Heard v. Pilley ... ... ... ... ... 90 
 
 JJeartley v. Nicholson ... ... ... ... 53, 54, 55 
 
 Heath v. Chapman ... ... ... ... ... 350 
 
 v. Creulock ... ... ... ... 292, 293, 294 
 
 Henton, Ex parte ... ... ... ... ... 319 
 
 Hemanginee Dossee v. Jogendro Nurain Roy ... ... ]05 
 
 Hemming v. Maddick ... ... ... ... ... 216 
 
 Henderson v. Hay ... ... ... ... ... 449 
 
 0. Mclver ... ... ... ... ... 249 
 
 Henley v. Phillips ... ... ... ... ... 348 
 
 Hennessey, Ex parte ... ... ... ... ... 279 
 
 , lie ... ... ... ... ... 280 
 
 v. Bray ... ... ... ... ... 123 
 
 Hepworth r. Hep worth ... ... ... ... 91, 92, 96 
 
 Herbert's Will, Re ... ... ... ... ... 437 
 
 Uercy v. Dinwoody ... ... ... ... ... 261 
 
 Hereford (Bishop of) v. Adams ... ... ... ... 353 
 
 Herne v. Benbow ... .... ... ... 143 
 
 Herring v. Clarke ... ... ... ... ... 432 
 
 Hervey v. Audland ... ... .. ... . 54 
 
 Hewett v. Foster ... ... ... 198,200,205,348 
 
 I-Iext v. Gill ... ... ... ... ... 145 
 
 Hiatt . Hillmnn ... ... ... ... ... 447 
 
 Hibbard v. Lambe ... ... ... ... 19, 284 
 
 Hibbert v. Hibbert ... ... ... ... ... 215 
 
 Hichens v. Congreve ... ... ... ... ... 107 
 
 Hickman v. Upsall ... ... ... ... ... 177 
 
 Hicks . Hicks ... ... ... ... ... 313 
 
 Hidait-oon-nissa r. Syud Af'zul Hossein ... ... 59, 385, 405 
 
 Hide v. Haywood ... ... ... ... ... 213 
 
 Higinbotham v. Holme ... ... ... ... ... 48 
 
 Hill v. Barclay ... ... ... ... ... 450 
 
 v. Bovle ... ... ... ... ... 273 
 
 .Buckley ... ... ... ... 169,224 
 
 v. Crook ... ... ... ... ... 37 
 
 v. Reardon ... ... ... ... ... 32 
 
 . Teenery ... .. ... ... ... 184 
 
 v. Turner .. ... ... ... ... 32 
 
 Hill's Trust, Re ... ... ... 435 
 
 Hinde v. Blake ... ... ... ... ... 339 
 
 Hindmarsh v. Southgate ... ... ... ... ... 128 
 
 Hindson . Weathetill ... ... ... ... ... 114 
 
 Hinton, Ex purte ... ... ... ... ... 45 
 
 Hitch v. Leworthy .. ... ... ... ... 240 
 
 Hoare v. Osborue ... ... ... ... 353, 361 
 
 Hobday . Peters ... ,.. ... ... 139,184,217 
 
 Hobstm v. Bell ... ... 223,224 
 
 o. Trevor ... ... ... ... ... 25 
 
 Hodges, In re ... ... ... ... ... 242 
 
 - v. Wheeler .. ... ... ... ... 420 
 
 Davey o. Ward^ In re ... ... .,, ... 154 
 
TABLE OF CASES CITED. XXXV 
 
 Page 
 
 Hodgson v. Hodgson ... ... ... ... ... 426 
 
 Hudson's Settlement, lie ... ... ... ... ... 434 
 
 Hogliton v. Hoghton ... ... ... ... 111,117 
 
 Holbrook's Will, Re ... ... ... ... ... 430 
 
 Holdsworth, Ex parts ... ... ... ... ... 272 
 
 Holford v. Phipps ... ... ... ... 175,269,270 
 
 Holgate v. Hawortb. ... ... ... ... ... 313 
 
 - v. Jennings ... ... ... ... ... 151 
 
 Holland v. Baker ... ... ... ... ... 345 
 
 Hollingsworth v. Shakeshaft ... ... ... ... 314 
 
 Holloway v. Millanl ... ... ... ... ... 62 
 
 v. lladcliffe ... ... ... ... ... 321 
 
 Holmes v. Hell ... ... ... ... ... 344 
 
 v. Dring ... ... ... ... ... 160 
 
 v. Penney ... ... ... ...43,62,70,153 
 
 Holt v. Dewell ... ... ... ... ... 281 
 
 v. Sindrey ... ... ... ... ... 36 
 
 Hone v. Pringle ... ... ... ... ... 205 
 
 Hood 0. Claphain ... ... ... ... ... 180 
 
 v. Oglander ... ... ... ... 41, 79 
 
 Hope o. Carnegie ... ... ... ... ... 58 
 
 v. Liddell ... ... ... ... ... 171 
 
 Hopgood v. Parkin ... ... ... ... ... 179 
 
 Hopper v. Conyera ... ... ... ... ... 303 
 
 Hora o. Horn ... ... ... ... .. 8 1 
 
 Horde v. Suffolk (Earl of) ... ... ... 153, 35G 
 
 Hori Dasi Dabi v. The Secretary of State for India ... ... 376 
 
 Horn v. Horn . ... ... ... ... ... 231 
 
 Horton p. Brocklehurst ... ... ... ... ... 157 
 
 Horwood v. West ... ... ... , ... ... 78 
 
 Hosking v. Nicholls ... ... ... ... ... 346 
 
 Hoskins, Re ... ... ... ... ... 438 
 
 Houghton, Ex parte ... ... ... ... ... 87 
 
 House v. Wny ... ... ... ... ... 149 
 
 Hovey v. Blakeman ... ... ... ... 200, 201, 205 
 
 Howard v. Chaffer ... ... ... ... ... 230 
 
 . Papera ... ... ... ... 289, 340 
 
 v. Rhodes ... ... ... ... ... 3;52 
 
 Howe v. Dartmouth (Earl of) ... ... 139, 149, 150, 198 
 
 v. Howe ... ... ... ... ... 87 
 
 Howse v. Chapman ... ... ... ... ... 354 
 
 Hoy v. Master ... ... ... ... ... 79 
 
 Hoyes v. Kindersley ... ... ... ... ... 95 
 
 Hubbard v. Young ... ... ... ... ... 151 
 
 Hughes, Ex parte ... ... ... 260, 290, 291, 3->7 
 
 Hughes, lie ... ... ... .. ... 281 
 
 Empson ... ... ... ... ... 173 
 
 . Howard ... ... ... ... ... 109 
 
 . Stubbs ... ... ... ... ... 55 
 
 Hughes' Settlement, Re ... ... ... ... 422, 436 
 
 Hughson v. Clarksou ... ... ... ... ... 344 
 
 Iliiguenin o. Basley ... ... 89,111,112,114,115,117,118 
 
 Hull . Chris tiau 248 
 
XXXVI TABLE OF CASES CITED. 
 
 Page 
 
 Ilulme v. Hulme ... ... ... ... ... 328 
 
 v . Tennant ... ... ... ... ... 323 
 
 Humberston v. Humberston ... ... .. . 23 
 
 Humphry's Estate, Re ... ... ... ... ... 435 
 
 Hungerford Earle ... .. ... ... ... 69 
 
 Hunooman Persaucl Panday v. M. S. Babooee Munraj Konn- 
 
 waree ... ... ... ... 306,309 
 
 Hunter .Atkins ... ... ... ... 111,114,115 
 
 v. Bullock ... ... ... ... ... 49 
 
 Hunt-Foulston v. Furber ... ... ... ... ... 41 
 
 Hurperehad v. Sheo Dyal ... ... ... ... ... 51 
 
 Hurrosoondery v. Cowar Kistonath ... ... ... ... 40 
 
 Hurruck Chund Sahoo v. Golam Slinrruff ... ... ... 388 
 
 Hurrydnss Dutt v. llungunmoney ... ... ... 146 
 
 #. S. M. Uppornah Dossee ... ... ... 146 
 
 Hurry Stinker Mookerjee v. Kali Coomar Mookerjee ... ... 105 
 
 Hurst v. Hurst ... ... ... ... ... 175 
 
 Hussain Beebee . Hussain Sherif ... ... ... ... 388 
 
 Hutcheson v. Hammond ... ... ... ... ... 220 
 
 Hntchinson v. Stephens ... ... ... ... ... 421 
 
 v. Townsend ... ... ... ... ... 344 
 
 Hylton v. Hylton ... ... ... ... ... 113 
 
 I. 
 
 Imperial Land Co. of Marseilles, Jie ... ... ... 2-54 
 
 - Mercantile Credit Association v. Coleman ... 254, 255 
 
 Ingle v. Partridge ... ... ... 141,171,236,338 
 
 Innes v. Mitchell ... ... ... * ... ... 32 
 
 Irby. Irby ... ... ... ... 232,274,325 
 
 Irons v. tSmallpiece ... ... ... ... ... 54 
 
 Irvine v. Sullivaft ... ... ... ... 78. 80 
 
 Isaacs v. Weatherstone ... ... ... ... ... 338 
 
 Izod v. Izod ... ... ... ... 283, 360 
 
 J. 
 
 Jnafar Mohi-u-din Sahib v. Aji Mohi-u-din Sahib ... 376, 377, 388 
 
 Jackson, In re ... ... ... ... 278, 455 
 
 v. Hamilton ... ... ... ... ... 274 
 
 v. Welsh ... ... 108 
 
 Jacob v. Lucas ... ... ... ... ... 335 
 
 Jacubs v. Rylance ... ... ... ... ... 322 
 
 James, Ex parts ... 257,259,260,263,264,289,290,291 
 
 p. Dean ... ... ... ... 108, 109 
 
 v. Frearson ... ... ... 121, 122, 133, 136 
 
 v. May ... ... ... ... ... 216 
 
 Jamsetji Jijibhai v. Sona Bhai ... ... ... ... 53 
 
 Jamyatram Ilamcliandra v. Parbudhas Hathi ... ... 62 
 
 Jan Ali v. Ram Nath Mundul ... ... ... 397,402 
 
 Janmajoy Mnzumdar . Keshublal ... ... ... ... 177 
 
 Jarman's Estate, Re ... ... ... ... ... 355 
 
 Jarratt . Aldam ... ... ... ... ... 118 
 
 Jarvi,s v. Chandler ... ... ... 32 
 
TABLE OF CASES CITED. XXXVll 
 
 Page 
 
 Jatitulra Mohan Tagore P. Ganendra Mohan Tagore ... 14, 33, 35, 40, 
 
 [370, 376 
 
 Jeans r. Cooke ... ... ... ... ... 95 
 
 Jeffrey v. De Vitre ... ... ... ... ... 82 
 
 Jeffreys v. Diekson ... ... ... ... ... 448 
 
 v. Di ysdale ... ... ... ... ... 439 
 
 v. .Jeffreys ... ... ... 53, 54, 68, 69, 72 
 
 Jemmit v. Verril ... ... ... "... ... 356 
 
 Jenkins v. Kermis ... ... ... ... ... 69 
 
 v. M it ford ... ... ... ... ... 269 
 
 Jenks v. Hoi ford ... ... ... ... ... 25 
 
 Jenkyn v. Vanghan ... ... ... ... ... 64 
 
 Jenner p. Jenner ... ... ... ... ... 112 
 
 Jerdein v. Bright ... ... ... ... ... 274 
 
 Jervis v. Wolferstan ... ... ... ... 180,181,216 
 
 Jervoise p. Duke of Northumberland ... ... 21, 23, 24 
 
 Jesse p. Be'nnett ... ... ... ... ... 344 
 
 Jevers . Jevers ... ... ... ... ... 117 
 
 Jewun Doss Sahoo v. Slmh Knbeer-ood-deen ... 383, 384, 385 
 
 Jeyangarulavaru v. Sri Hati Dnrma Dossji ... ... 403, 405 
 
 Jivandas Kesbavji v. Framji Nanabhai ... ... ... 51 
 
 Joel P. Mills ... ... ... ... 46, 76 
 
 Johns v. James ... ... ... ... ... 73 
 
 Johnson v. Johnson ... ... ... ... 85,149 
 
 p. Kennett ... ... ... ... ... 230 
 
 v. Kersliaw ... ... ... ... ... 76 
 
 p. Newton ... ... ... ... 141,142,313 
 
 v. Telford ... ... ... ... ... 213 
 
 Johnston v. Rowlands ... ... ... ... ... 80 
 
 P. Swaun ... ... ... ... ... 356 
 
 Jolland v. ... ... ... ... ... 356 
 
 Jones v. Boulter ... ... ... ... ... 70 
 
 v. Cruncher ... ... ... ... ... 67 
 
 . v. Farrell ... ... ... ... ... 273 
 
 v. Foxall ... ... ... ... ... 167 
 
 p. Gibbons ... ... ... ... 209,278 
 
 v. Greatwood ... ... ... ... ... 81 
 
 v. Higgins ... ... ... ... 137,189,190 
 
 - v. Jones ... ... ... ... ... 59 
 
 r>. Lewis ... ... ... ... 140, 269 
 
 - p. Lock ... ... ... ... ... 55 
 
 p. Powell ... ... ... ... ... 232 
 
 p. Powles .... ... ... ... ... 293 
 
 v. Williams ... ... ... ... 350, 354 
 
 Jorden p. Money ... ... ... ... ... 190 
 
 Josselyn p. Josselyn ... ... ... ... 272 
 
 Joy p. Campbell ... .... ... 48,199,205,237,296 
 
 Joyce's Estate, Re ... ... ... ... 418, 435 
 
 Judah p. Judali ... ... ... ... ... 350 
 
 P. Mirza Abdool Kurreem ... ... ... ... 60 
 
 Juddo Nundun Burral P. Kalee Coomar Ghose ... ... 386 
 
 Juggernauth Doss P. tirijnath Doss ... ... ... 28 
 
 Juggessnr Buttobyal p. Rajah Roodro Narain Roy ... ... 374 
 
 Juggoduinba Dossee v. Puddomoiiey Dossee ... ... 28 
 
XXXV111 TABLE OF CASES CITED. 
 
 Page 
 
 Juggutmohini Dossee v. M. S. Sookheemoney Dossee 14, 369, 380 
 
 Jumoona Dassya Chowdhrain v. rfaina Soonderai Dassya Cliow- 
 
 dhrain ... ... ... ... ... 148 
 
 Jusagheri Gosamiar v. The Collector of Tanjore ... ... 398 
 
 K. 
 
 Kahandas Narrandas, I?e ... ... ... 15, 418 
 
 Kfiiliur Singh . Roop Singh ... ... ... ... 308 
 
 Kalee Churn Giri v. Golabi ... ... ... ... 403 
 
 . Gir Gossain u. Bungshee Mohun Doss . ... ... 376 
 
 Nath Kur v. Doyal Kris to Deb 
 
 Rally Doss Mitter v. Gobind Chunder Paul 
 
 Prosono Mitter v. Gopee Nauth Kui- 
 
 Karaal Singh v. Batul Fatiina 
 
 ... 106 
 
 ... 103 
 
 ... 40 
 
 ... 305 
 
 Kamuvadhani Venkata Subbaiya v. Joysa Narasingappa ... 147 
 
 Kauye Dass Byragee v. Ramgopal Gliose ... ... ' ... 59 
 
 Kasheshurree Dassee v. Krislmakaminee Dassee ... ... 387 
 
 Kattama Natchiar v. Dorasinga Tever ... ... ... 148 
 
 Kaye, lie ... ... ... ... ... 131 
 
 v. Powell ... ... ... ... ... 268 
 
 Kearsley v. Woodcock ... ... .. ... 44,45,46 
 
 Keats v. Hewer 
 Keech . Sandfbrd 
 Kekewich v. Manning 
 Kellaway v. Johnson ... 
 
 Kellie v. Fraser ... 
 
 Kelson v. Kelson 
 Kendall v. Granger 
 Kennedy v. Daly 
 
 . v. Cassilis (Earl of) 
 
 Kenney v. Browne ... 
 
 Kent v. Jackson ... 
 
 94 
 ... 108 
 56, 57 
 160, 184 
 ... 28 
 ... 70 
 ... 350 
 83, 156, 313 
 ... 32 
 ... 290 
 ... 190 
 63, 64 
 
 . v. Riley 
 
 Keshub Chunder Sein v. Vyasmonee Dossia ... ... ... 105 
 
 Khajah Ashruf Hossein v. M. S. Mazara Hegmn ... ... 399 
 
 Kherodemoney Dossee v. Doorgamoney Dossee .. 40, 186, 304 
 
 Khuggender Narain Chowdliry v. Sharupgir Oghorenath ... 378 
 
 Khusal Chand v. Mubadevgiri ... ... ... 350, 374 
 
 Kiddill v. Farnell ... ... ... ... 56,208 
 
 Kidney v. Coussmaker ... ... ... ... 64, 261 
 
 Kilbee v. Sneyd ... ... ... ... 141,238 
 
 Kildare (Earl of) . Eustace ... ... ... 29, 30, 31 
 
 Killick v. Flexney ... ... ... ... 257, 265 
 
 Kilpin v. Kilpin ... ... ... ... ... 91 
 
 Kilvert's Trusts, Re ... ... ... ... ... 357 
 
 Kilworth v. Mountcashell ... ... ... ... ... 323 
 
 King, Ex parte ... ... ... ... ... 323 
 
 , Re ... ... ... ... 56, 58. 348 
 
 v. Anderson ... ... ... ... 260, 265 
 
 . .1 v. Archbishop of Canterbury ... ... ... 155 
 
 v. Bellord ... ... ... ... ... 127 
 
 . Denisoo ... ... ... ... 84, 85 
 
 p.King 119,271 
 
TABLE OF CASES CITED. 
 
 Page 
 
 King r. Snvery ... ... ... ... ... 118 
 
 Kingdom v. Bridges ... ... ... ... ... 90 
 
 - v. Castlemain ... .... ... ... ... 184 
 
 Kingston, Ex parte ... ... ... ... ... 141 
 
 (Earl of) v. Pierepoint (Lady) ... ... ... 35 
 
 Kinlock v. The Secretary of State for India ... ... 125,129 
 
 Kirby v. Mash ... ... ... ... ... 287 
 
 Kirkman v. Booth ' ... ... ... ... 243, 252, 255 
 
 Kishore Bon Moliunt v. Kalee Churn Giree ... ... 403, 405 
 
 Knatchbull v. Fearnhead ... ... ... ... ... 123 
 
 v. Hnllett ... ... ... ... 141,300 
 
 Knight v. Bowyer ... ... ... ... ... 25 
 
 r. Knight ... .. ... ... 78, 424 
 
 . v. Mnjoribanka ... ... ... ... ... 265 
 
 v. Plymouth (Earl of) ... ... .. ... '237 
 
 Knight's Trusts, lie ... ... ... ... 177, 218 
 
 Knott v. Cottee ... ... ... ... 79, 166, 216 
 
 Knox v. Gye ... ... ... ... ... 253 
 
 Knye v. Moore ... ... ... ... ... 343 
 
 Komlakant Ghosnl . Ram HurreeNmid Gramee ... 369, 371 
 
 Kooer Golab Sing v. Rao Kuruu Sing ... ... ... 148 
 
 Koonjee Singh . Jankee Singh ... ... .. ... 105 
 
 Koonwar Doorgimath Roy v. Ram Chunder Sen ... 307, 374, 375 
 
 Krishna v. Rayappa ... ... ... ... ... 51 
 
 Krislinaramani Dasi v. Annnda Krishna Bose ... ... 370 
 
 Kudeeram Singh r. Sluim Singh Poojoory ... ... ... 404 
 
 Kulb Ali Hossein v. Syf Ali ... ... ... 382, 385 
 
 Kullar Singh v. Modhoo Dyal Singh ... ... ... 308 
 
 Kumara Asima Krishna Deb v. Kumara Kumara Krishna Deb, 8, 12, 13, 
 
 [40, 41, 370 
 
 Kuuigaratu v. Arranganden ... ... ... ... 159 
 
 L. 
 
 Lacey, Ex parte ... ... 252, 257, 258, 259, 290, 291, 327 
 
 Lackersteen v. Rostan ... ... ... ... 418, 432 
 
 Lake v. Lambert ... ... ... ... ... 131 
 
 Lalla Bunseedhur v. Koonwar Bindeseree Dutt Singh ... 307, 311 
 
 Lalmoney Dossee v. Judoonath Shaw .. ... ... 28 
 
 Lalubhai Bapubuai v. Mankuvarbai ... ... 84, 85, 86 
 
 Lambe . Eames ... ... ... ... ... 83 
 
 v. Orton ... ... ... ... 53,57,177 
 
 Lambert v. Lambert ... ... ... ... ... 145 
 
 Lamplugh v. Lamplugh ... ... ... ... 94, 95 
 
 Lane v. Debenbaui ... ... ... ... 170, 335 
 
 p. Digliton ... ... ... ... 86, 88, 297 
 
 Langford v. Gascoyne ... ... ... ... 199, 205, 236 
 
 v. Gowland ... ... ... ... ... 360 
 
 Langley v. Fisher ... ... ... ... ... 156 
 
 r. Hawk ... ... ... ... ... 340 
 
 LangTiead's Trusts, Re ... ... ... ... ... 230 
 
 Langstaffe v. Fenwick ... ... ... ... ... 243 
 
 Langston v. Ollivant ... ... ... ... ... 161 
 
 Larking, Ex parte ... ... ... ... ... 254 
 
xl TABLE OF CASES CITED. 
 
 Page 
 
 Latouche v. Diinsany ... ... ... ... ... 343 
 
 Lauder v. Western .... . .... ... ... ... 167 
 
 Lavender f. Blackston ... ... ... ... ... 69 
 
 Lawless v. Sliaw ... ... ... ... ... 80 
 
 Lawrence v. Maggs ... ... ... ... ... 109 
 
 Lear v. Leggett ... ... ... ... ... 47 
 
 Leavers r. Clayton ... . .... ... ... ... 355 
 
 Lechuaere . Carlisle (Earl of) ... :.. ... ... 320 
 
 v. Clamp ... ... ... ... 421,433 
 
 v. Lavie ... ... ... ... 78, 79 
 
 Ledwich, Re ... ... ... ... ... 284 
 
 Lee v. Howlett ... ... ... ... ... 281 
 
 v. Sankey ... ... ... ... 185,215,240 
 
 v. Young ... ... ... ... 154,285 
 
 Leedham r. Chawner ... ... ... 212,213,215,216 
 
 Leeds (Duke of) v. Amherst ... ... ... 190,319 
 
 Lees v. Sanderson ... ... ... ... ... 205 
 
 Legg v. Mackrell ... ... ... ... 333, 435 
 
 Leifeliild's Case ... ... ... ... ... 70 
 
 Leman v. Whitley ... ... ... ... ... 90 
 
 LeMarchant v. L<>Marchant ... ... ... ... 78 
 
 Lenaghan v. Smith ... ... ... ... ... 344 
 
 Lench v. Lench ... ... ... ... ... 295 
 
 Lepine v. Bean .. ... ... ... ... 37 
 
 Leslie v. Baillie ... ... ... ... ... 176 
 
 v. Land Mortgage Bank . ... ... ... 28 
 
 Lewellin v. Cobbold ... ... ... ... ... 337 
 
 Lewes v. Lewes ... ... ... .. ... 45 
 
 Lewis, Ex parts ... ... ... ... ... 223 
 
 v. Madocks ... ... ... ... 83, 295, 297 
 
 v. Matthews .... ... ... ... ... 133 
 
 . v. Nobbs ... ... ... ... ... 141 
 
 v. Rees ... ... ... ... 68, 72 
 
 Ley v. Ley ... ... ... ... ... 451 
 
 Liclifield v. Baker ... ... .. ... ... 149 
 
 Liddard v. Liddard ... ... ... ... ... 78 
 
 Life Association of Scotland v. Siddal ... ... 191,192,220 
 
 Lincoln (Countess of) v. Newcastle (Duke of) ... ... 24 
 
 v. Windsor ... ... ... .. ... 245 
 
 p. Wright ... ... ... ... 203, 217, 3 2 "2 
 
 Primitive Methodists' Chapel, Re ... ... ... 434 
 
 Lister v. Hodgson ... ... ... ... ... 72 
 
 v. Lister ... ... ... ... 258,291 
 
 Little, Re . ... ... ... ... ... 439 
 
 Livesay v. O'Hara ... ... ... ... ... 176 
 
 Livesey v. Harding ... ... ... ... ... 282 
 
 v. Livesey ... ... ... ... .. 180 
 
 Llewellyn's Trust, Re ... ... ... 151 
 
 Lloyd v. Attwood ... ... ... ... ... 280 
 
 r. Banks ... ... ... ... ... 279 
 
 v. Lloyd ... ...49, 85 
 
 v. Pughe ... ... ... ... 90,131 
 
 . Head ... ... ... ... 88, 94, 96 
 
TABLE OF CASES CITED. xli 
 
 Page 
 
 Lloyd . Spillett ... ... ... ... 83, 85, 96 
 
 Local Aleuts of Zillah Hooghly r. Kishnanund Dundee ... 373 
 Lokliee Narain Roy Cbowdhry v. Kallypuddn Bandopadhya ... 102 
 
 Lockyer v. Savage ... ... ... ... ... 45 
 
 London Gaslight Co. v. Spottiswoode ... ... ... 343 
 
 Syndicate r. Lord ... ... ... ... 338 
 
 Longley r. Longley ... ... ... ... ... 85 
 
 Longmore v. Elcnra .. ... ... ... ... 81 
 
 Lonsdale (Earl of) r. Beckett ... ... ... ... 3-28 
 
 Lord v. Burn ... ... ... ... ... 43 
 
 v. Godfrey ... ... .. ... ... 151 
 
 Lorenz's Settlement, Re ... ... ... ... ... 218 
 
 Losconibe v. WintringiiMn ... ... ... ... 354 
 
 Lovat v. Fraser ... ... ... ... ... 213 
 
 Lovegrove, Ex parle ... ... ... ... ... 212 
 
 Loveridge . Cooper ... ... ... ... ... 277 
 
 Low v. Carter ... ... ... ... ... 92 
 
 Lowe's Settlement, Re ... .. ... ... ... 281 
 
 Lowis v. Rutnney ... ... ... ... ... 222 
 
 Lowry r. Fulton .. ... ... 121,122,132,235 
 
 Lowry's Will, Re ... ... ... ... ... 418 
 
 Lowson P. Copeland ... ... ... 137,138,218,314 
 
 Luclimi Dai Koori v. Asman Siiiuh ... ... ... ... 31 1 
 
 Luchmun Dass v. Giridliur Chowdliry ... ... ... 312 
 
 Luckhee Xarain Chuckerbutty o. Tarn Monee Dossee ... ... 106 
 
 Luff v. Lord ... ... ... ... ... 263 
 
 Lunbnm r. Blundell ... ... ... ... ... 142 
 
 Lupton v. White ... ... ... ... 318,319 
 
 Lush t?. Wilkinson ... ... ... ... ...62,64 
 
 Luteefun v. Bego Jan ... ... ... ... ... 303 
 
 Luther v. Bianconi ... ... ... ... ... 139 
 
 Lynn v. Benver ... ... ... ... ... 178 
 
 Lyon v. Baker ... ... ... ... ... 245 
 
 . Home .. ... ... ... ... 112 
 
 Lyons (Mayor of) v. East India C..... ... 52, 126, 127, 1X3, 352 
 
 v. Advocate-General of Bengal 258, 380 
 
 Lyster v. Burroughs ... ... ... ... ... 83 
 
 M. 
 
 Maberly v. Turton ... ... ... ... 226, 283 
 
 Macartney . Blackwood ... ... ... ... ... 290 
 
 Macdonald v. Irvine ... ... ... ... .. 152 
 
 v. Richardson ... ... ... ... ... 256 
 
 Macey v. Simmer ... ... ... ... ... 78 
 
 Mackay v. Douglas ... ... ... ... ... 64 
 
 Mackenzie . Mackenzie ... ... ... ... ... 427 
 
 Mackett v. Mackett ... ... ... ... ... 83 
 
 Mackie v. Mackie ... ... ... ... . . 151 
 
 Mackintosh v. Nobinmoney Dossee ... . ... ... 245, 252 
 
 Mackintosh's Settlement, Re ... ... ... ... 218 
 
 Macleod v. Buchanan ... ... ... .. ... 282 
 
 Macnab v. Whitbread ... ... ... ... .. 78 
 
 Macreth . SjinuMMM ... 292 
 
xlii TABLE OF CASES CITED. 
 
 Page 
 
 Maonnmnra p. Jones ... ... ... ... 21 '2, 249 
 
 Madharv v. Gobmdlinn Ilnlwni ... ... ... ... 380 
 
 Madho Dass v Kamta Dass ... ... ... ... 379 
 
 Mngrnth t>. Morttliead ... ... .. ... ... 27-2 
 
 Maguire, Re ... ... ... ... 3(50 
 
 Maharanee Brojosoonderv IMria v. Ranee Luclnneo K(>nwaree... 373 
 
 . Shihessonree Debi:i p. M<>tlio(ir:iii:(tli Aobxrjo ... 374 
 
 Mahomed Hamidulla Ivlian p. Loiful Huq ... ... 381,382.383 
 
 ]\ lali on v. Savage ... ... ... ... ... 155 
 
 lUahtiib Cliand v. Mirdad Ali ... ... ... ... 374 
 
 Matnw&ring, Re ... ... ... ... ... 426 
 
 Mair, lie ... ... ... 434 
 
 Mftitiand v. Batenum ... ... ... ... ... 1;>9 
 
 Malcolm v. O'Callaghan ... ... ... ... 21 '2 
 
 Malim v. Keiuhley ' ... ... ... ... 78, 79, 283 
 
 Malzyp. Edge ... ... ... ... ... 121 
 
 Maneharji fcjorabji Chulla v. Kongseo .,. ... 104, 29'2 
 
 Mangles v. Dixon .. ... ... ... .. 274 
 
 Manners v. Furze ... ... ... ... ... 340 
 
 Manning . Gill ... ... ... ... 48,59,85 
 
 Manning's Trusts, Re ... ... ... ... ... 436 
 
 .Manningford p. Toleman ... ... ... ... ... 295 
 
 Mansell p. Mansell ... ... ... ... 292, 293 
 
 Mansfield v. Shaw ... ... ... ... 289, 340 
 
 Manson v. Baillie ... ... ... ... ... 245 
 
 Mapp v. Elcock ... ... ... ... 83, 86 
 
 March . Russell ... ... .., ... ... 123 
 
 Mariott v. Turner ... ... ... ... ... 85 
 
 Marler v. Toimnas ... ... ... ... ... 54 
 
 Marriot v. Kinnersley ... ... ... ... ... 184 
 
 Marry at v. Man-vat ... ... ... ... ... 337 
 
 Marsden v. Kent ... ... ... ... ... 175 
 
 Marsh P. Attorney-General ... ... ... . 359 
 
 Marshall v. Crutwell ... ... ... ... ... 93 
 
 v. Holloway ... ... ... ... ... 246 
 
 . Sladden ... ... ... ... ... 184 
 
 Martin, Ex parte ... ... ... ... ... 132 
 
 v. Maugham ... ... ... ... ... 47 
 
 v. Sedgewick ... ... ... ... 279, 281 
 
 Martindale v. Booth ... ... ... ... ...60,61 
 
 Masi.n . Morley ... ... ... ... .. 319 
 
 Massey p. Manner ... ... ... ... 140, 2-')7 
 
 Mathias p. Marinas ... ... ... ... 294, 295 
 
 Mathie P. Edwards ... .. .. ... ... 168 
 
 Matbura Naikin p. Esu Xaikin ... ... ... .. 48 
 
 I Matthew P. Hanbury ... ... ... ... ... 48 
 
 Matthews, Re ... ... ... ... ... 434 
 
 p. I'rise ... ... ... ... ... 141 
 
 Matthison p. Clarke ... ... ... ... 243, 251, 255 
 
 Mannder P. Lloyd ... ... ... ... ... '-8 
 
 Maw K. Pearson ... ... ... ... 109,240 
 
 May p. May ... ... ... ... ... 35 
 
 Mayer p. Mui ray ... ... ... ... 187,188 
 
TABLE OF CASES CITED. xliii 
 
 Page 
 
 Mavnard's Settlement Trusts, Re ... ... ... 42G, 435 
 
 MeCulloeb v. Bland ... ... ... ... ... 54 
 
 r. McCulloeh ... ... ... ... ... 80 
 
 McCoraiick r. Grogan ... ... ... ... ... 80 
 
 McDonald v. Hanson ... ... ... ... ... 170 
 
 McDouell 0. White ... .,. ... ... ... 158 
 
 McDonnell v. Hesilriga ... ... ... ... 67,71 
 
 McMurray v. Spicei- ... ... ... ... ... 421 
 
 Mead v. Orrery (Lord) ... ... ... ... ... '292 
 
 Meaghan, Re ... ... ... ... ... 48 
 
 Medworth o. Pope ... ... ... ... ... 36 
 
 Meek v. Kettlewell ... ... ... ... 54, 56, o", 67 
 
 Meggisoii . Moore ... ... ... ... ... 78 
 
 Megji Hatisraj v. llamji Joita ... ... ... 277, 280 
 
 Megson v. lliiulle ... ... ... ... ... 36 
 
 Meinertzhagen v. Davis ... ... ... ... 129,328,330 
 
 Mendes v. Guedalla ... ... ... ... ... 140 
 
 Meredith r. Ileneage ... ... ... ... 78. 80 
 
 Merlin v. Blagrave ... ... ... ... 178,217 
 
 Merlins v. Jolliffe ... ... ... ... 293, 294 
 
 Messeena v. Carr ... ... ... .. ... 240 
 
 Messenger o. Andrews ... ... ... ... ... 79 
 
 Metcalfe, He ... ... ... ... 118,119 
 
 v. Pulvertoft ... ... ... .. ... 60 
 
 Meux v. Bel! ... ... ... ... 211,277,280 
 
 M'Fadden v. Jenkyns ... ... ... 52, 57, 242, 287 
 
 M'Gachen v. Dew ... ... ... ... ... 322 
 
 M'llardy v. Hitchcock ... ... ... ... 336, 337 
 
 Michel's Trusts, lie ... ... ... ... ... 353 
 
 Middleton v. Dodswell ... ... ... ... ... 340 
 
 v. Re:iy ... ... ... ... ... 287 
 
 p. Spicer ... ... ... ... ... 251 
 
 Midland Bank v. Chambers ... ... ... ... 76 
 
 Mildrnay's Case ... ... ... ... ... 70 
 
 Miles v. Durntbrd ... ... ... ... ... -18 
 
 Millard v. Eyre 284 
 
 Miller v. Priddon ... ... ... ... ... 328 
 
 v. Race ... ... ... ... ... 295 
 
 Milligan v. Mitchell ... ... ... ... 223, 288 
 
 Mills r.Cobb ... ... 451 
 
 v. Farmer ... ... ... ... ... 358 
 
 v. Osborne ... ... ... ... 138,161 
 
 Milroy v. Lord ... ... ... ... 53, 55, 56, 58 
 
 Minet v. Leman ... ... ... ... ... 154 
 
 Minors v. Battison ... ... ... ... ... 232 
 
 Mir Nur Ali v. Mafulah ... ... ... ... ... 381 
 
 Mitchelson . Piper ... ... ... 232 
 
 Miiibrd, Ex purle ... ... ... ... ... 322 
 
 r. Reynolds ... ... ... ... ?54, 362 
 
 Mitta Kuntli Audhicarry p. Neerunjnn Audhicarry ... ... 377 
 
 M' Kay's Case ... ... ... ... ... 255 
 
 M'Keiina v. Kager ... ... ... ... ... 122 
 
 Mockett's Will, lie 218 
 
TABLE OF CASES CITED. 
 
 Page 
 
 Moggridge r. Thackwell ... ... ... ... 282, 357 
 
 IMoliabepr Kooer v. Joobha Singh ... ... ... 307 
 
 Mohesh Lall p. Husuut Kumaree ... ... ... ... 222 
 
 Mohun v. Mohun ... ... ... ... 346, 347 
 
 Doss, In re ... ... ... ... ... 380 
 
 Mohunt Burm Suroop Dnss . Khasher Jha .., ... ... 375 
 
 Gopal Dass v. Molmnt Kirpsiram \)si** ... ... 378 
 
 Rumun Dass p. Mohunt Ashbul Dass ... ... 378 
 
 Molyneux, /// re ... ... ... ... ... 433 
 
 Monckton v. Braddell ... ... ... ... ... 177 
 
 Moneypenny v. Dering ... ... ... ... ... 38 
 
 IVlontefiore v. Belieena ... ... ... .. ... 47 
 
 P. Brown ... ... ... ... ... 73 
 
 - o. Enthoven ... ... ... ... ... 47 
 
 Montford (Lord) v. Lord Cadogan ... ... ... 120,123,189 
 
 Montgomery r. Johnson ... ... ... ... ... 121 
 
 Montmorency v. Devereux... ... ... ... ... 261 
 
 Moohummud Sadik v. Moohummud Ali ... 3*1, 386. 387, 389 
 
 Aloonsb.ee Muzloor Rnheem v. Shums'>oni.sa Bt^jnnn ... 14, 98, 180 
 
 Golain Ali v. M. S. Sowlutoonuau Hibt-e ... ... 387 
 
 Moore v. Bl:ike ... ... ... ... ... 343 
 
 v. Crofton ... ... ... ... .. 69 
 
 v. Darton ... ... ... ... ...53, 58 
 
 P. Frowcl ... ... ... ... 243, 244, 248 
 
 r. Moore . . ... ... ... ... 55 
 
 v. Morris ... ... ... ... .. 344 
 
 v. Prance .. ... ... ... ... 114 
 
 Moorecroft v. Dowding ... ... ... ... ... 235 
 
 Alorewood v. South Yorkshire Railway Co. ... ... ... 65 
 
 Morgan v. Malleson ... ... ... ... ... 58 
 
 - v. Morgan ... ... ... ... 151, 152 
 
 v. Slaughter ... ... ... ... ... 449 
 
 o. Stephens ... ... ... ... ... 184 
 
 Moriee v. The Bishop of Durham ... ... ... ... 355 
 
 W orison v. Morison ... ... ... ... 215, 246, 25 
 
 Morley v. Morley ... ... ... ... ... 140 
 
 Morning ton, Ex parte ... ... ... ... ... 433 
 
 Morris v. Cannaii ... ... ... ... ... 277 
 
 v. Livie ... ... ... ... 274, 323, 324 
 
 Morrison p. Morrison ... ... ... .. ... 212 
 
 Morse P. Royal ... ... ...257,258,261,262,263 
 
 Mortimer v. Davies ... ... ... ... ... 8 
 
 Mortlock v. Buller ... ... ... ... ... 169 
 
 Morvah Milling Co., In re ... ... ... .. ... 255 
 
 Mosely v. Ward ... ... ... ... ... 167 
 
 Moses v. Lev! ... ... .. ... ... 'J05 
 
 Moulvee Ahdoolla v. M. S. Rajesri Dossea ... ... .. 385 
 
 v. Ranizoo Dye ... .. 385, 386 
 
 Moulvie Sayyud Uzhur Ali o. M. S. Hebee Ultaf Fatima ... 100 
 
 Synd r. M. S. Bibee ... ... ... ... 98 
 
 Movie v. Moyle ... ... ... ... 132,142 
 
 M'Turk, Ex parte ... ... ... ... ... 279 
 
 Mucklestou c. Brown ... ... 48 
 
TABLE OF CASES CITED. xlv 
 
 Page 
 
 Mucklow n. Fuller ... ... ... 120,121,201,203 
 
 Muddun Gopal Lall v. M. S Gowrtinbntty ... ... ... 309 
 
 Thakoor 0. Kimioo Ll] ... ... 311,31-2 
 
 Mujjgeridjie's Trusts, He .. ... ... ... 46,219 
 
 Muhammud Kaaim <?. Muliaminud Alum Kijamuildeen ... 389 
 
 Mnlhallen v. Macum ... ... ... ... ... 107 
 
 Mulvany . Dillon ... ... ... 107,108,109,265 
 
 Alumina r. Alumina ... ... ... ... ... 94 
 
 Munch o. Cockerel! ... ... ... ... 184,189 
 
 Murless o. Franklin ... ... ... ... 90,94,95 
 
 Murpliy, In re ... ... . . ... .. 48 
 
 v. O' Shea ... ... ... ... 261,265 
 
 Murray, Re ... ... ... ... ... 66 
 
 v. Palmer ... ... ... ... ... 261 
 
 . Pinkett ... ... ... ... ... 281 
 
 Musadee Mahomed Cazum Sherazee v, Meerza Ally Mahomed 
 
 Shoostry ... ... ... ... .. 105 
 
 M. S. Ameerun r. M. S. Hyatun ... ... ... ... 303 
 
 Bibee c. Fnzl Hossein ... ... ... 97, 102 
 
 Bhowna v. Roop Kiahore ... ... ... ... 311 
 
 Buliuiis Kowur v. Lalla Buhoree Lall ... ... ... 102 
 
 Biikshun v. M. S. Doolhin ... ... ... ... 307 
 
 Hyatee Khanuni v. M. S. Koolsum Kbanuui ... 381, 388 
 
 Jai Bansi Kunwar v. ('hattar Dari ... ... 335,379 
 
 Kishnee v. Khealee Ham ... ... ... ... 146 
 
 Kooldeep Kooer v. llunjeet Singh ... ... ... 311 
 
 Lodhoomona Dassee v. Gnnnesh Chnnder Dutt ... ... 147 
 
 Mahitrani v. Nuncl Lall Misser ... ... ... 147 
 
 Nowrnttun Koer v. Baboo Gouree Dutt Singh ... ... 306 
 
 Qadira v. Shah Kubeer-ood-deeu Ahmed ... 384, 385 
 
 llookho v. Madho Dass ... ... ... 51 
 
 Sham Soondur Kooer v. M. S. Jumna Kooer ... ... 311 
 
 Shurfoonissa v. M. S. Koolsum ... ... ... 382 
 
 Suraj Bansi Kunwar v. Mahiput Sing ... ... ... 147 
 
 Thukrain Sookraj Koowar v. The Government ... ... 104 
 
 Muthoora Koonwaree v. Bootun Sin^h ... ... ... 307 
 
 Muzhurool Huq v. Pubraj Ditarey Mohapattur ... 381, 382, 3;>5 
 
 Myler v. Fitzpatrick ... ... ... ... 109, 215, 240 
 
 N. 
 
 Nabob Aminuldanla Muhammad v. Nateri Srinivasa Charlu ... 41 
 
 Naikram Lall v. Snorujbuns Sahee ... ... ... ... 148 
 
 ]Sanney r. Williams ' ... ... ... ... 59,71,110 
 
 Nary an v. Chintaman ... ... ... ... ... 374 
 
 Nash v. Smith ... ... ... ... ... 86 
 
 Natal Investment Co., Re ... ... ... ... 274 
 
 Neale v. Davis ... ... ... ... ... 156 
 
 v. Day ... ... ... ... ... 64 
 
 Need ham, Re ... ... ... ... ... 120 
 
 Nelson v. Bridport ... .. ... ... ... 50 
 
 v. Duncombe ... ... ... ... ... 221 
 
 v. Stocker ... ... ... ... ... 180 
 
 Nepean v. Doe ... . ... ... ... 177 
 
xlvi TABLE OF CASKS CITED. 
 
 Page 
 
 Nesbitt r. Tredenniek ... ... ... ... ... 109 
 
 New v. 1}. -linker ... ... ... ... ... 360 
 
 v. Jm.es ... ... ... ... 245, '249 
 
 Newcastle (Corporation of, v. Attorney-General ... ... 68 
 
 Newill v. Newill ... ... ... ... ... 82 
 
 Newlaml v. Attorney-General ... ... ... ... 354 
 
 Newport v. Bury ... ... ... ... ... 246 
 
 New Sombrero Phosphate Co. v. Erlanger ... ... ... 255 
 
 Newsome r. Flowers ... ... ... ... ... 156 
 
 Newton 0. Ar-kew ... ... ... ... 59, 08, 158 
 
 o. Newton ... ... ... ... ... 281 
 
 Nicholson 0. Smith ... ... ... ... ... 3:28 
 
 0. Tiuin ... ... ... ... 73,76,243 
 
 - 0. Wordsworth ... ... ... ... ... 133 
 
 0. Wrijiht ... ... ... ... ... 328 
 
 Nickisson 0. Cockell ... ... ... ... ... 155 
 
 Nidhee Singh 0. Bissonath Dass ... ... ... .. 104 
 
 Nightingale v. Goulbum ... ... ... ... 354 
 
 Nitai Charan Pyne 0. S. M. Ganga Dasi ... .. ... 41 
 
 Noad 0. Backhouse ... ... ... ... ... 340 
 
 Noble 0. Brett ... ... ... ... ... lol 
 
 0. Meymott ... ... ... ... 133,328,344 
 
 Nogender Chumler Ghose 0. Greender Chuiuler Ghose... 86, 297 
 
 Noicutt 0. Dodd ... ... .. ... ... 60 
 
 Norfolk (Dnke of), lie ... ... ... ... ... 38 
 
 0. Brown ... ... ... ... 90 
 
 0. Howard 38 
 
 Norrinton, In re ... ... ... ... 175,184 
 
 Norris, Ex jiafte ... ... ... ... ... 177 
 
 0. Cliumbres ... ... ... ... ...31,32 
 
 0. Wright ... ... ... ... ... i(>7 
 
 North 0. Gurney ... .. ... ... ... 278 
 
 British Insurance Co. 0. Hallett ... ... ... 278 
 
 Northen 0. Carnegie ... ... ... ... ...83, 86 
 
 Norton 0. Kelly ... ... ... ... ... 112 
 
 Norway 0. Norway ... ... ... ... 133, 347 
 
 Nottidge 0. Prince ... ... ... ... ... 112 
 
 Nowab Azimut Ali Khan 0. Himlwaree Mull ... ... 101 
 
 Nundlall Baboo 0. Bolakee Bebse ... ... ... 146,147 
 
 Nundun Lai 0. Tayler ... ... ... ... ... 104 
 
 Nunii 0. Wilson ... ... ... ... ... 59 
 
 Nuthoo Lull 0. Buddree Pershad ... ... ... ... 114 
 
 O. 
 
 Oakes 0. Strachey ... . ... ... ... 149 
 
 Obhoy Churn Ghuttuck 0. Trelochun Chatterjee ... ... 106 
 
 Mookerjee 0. Puuchanun Ghose ... ... 98 
 
 O'Brien 0. O'Brien ... ... ... ... ... 168 
 
 Occleston 0. Kullalove ... ... ... ... ... 36 
 
 Oglander v. Oglander ... ... ... ... ... 285 
 
 Ogle, Ex parle ... ... ... ... 137,178,2^2 
 
 O'lk-rlihy o. Hedges ... ... ... ... ... 250 
 
 Oldhaui 0. llaud ... ... ... ... ... 114 
 
TABLE OF CASES CITED. 
 
 xlvii 
 
 Oldliam v Olclliam 
 
 Oliver v. Court 
 
 Olliver P. King 
 
 Otnmauey v. Butcher 
 
 Oorned Kai v. Heera Lall ... 
 
 Or<l p. Noel 
 
 Ord's Trust, He ... 
 
 O'Reilly r. Aklenoo 
 
 Onnshy. lit re 
 
 Orr v. Newton 
 
 Oshorn's Mortgage 'I'rusts, lie 
 
 Osborne, V. ... 
 
 Ottley P. Browne 
 
 v. Gilhey 
 
 Overton r. Banister 
 
 Owen r. Williams ... 
 
 Oxley, Ex parte 
 
 Page 
 
 ... 45 
 
 ... 168, 169, 171, 260, 25)0 
 
 Go 
 
 ... 35/5 
 ... .'509 
 
 168, 169, 2-22, 2S3 
 ... 419 
 ... 284 
 21-2, -J4.-J 
 ... 139 
 ... 4-22 
 ... 331 
 48 
 
 ... 158 
 ... 180 
 ... 109 
 ... 45 
 
 P. 
 
 Padbury v. Clark 
 Pmldon v. Ricluirdson 
 Page v. Cooper 
 r. Home 
 
 v. I-fapingwell ... ... 
 
 - u. Way 
 Paget v. Kde 
 Palairct r. Carew 
 
 Palaniyappa Clietti p. Arunmgain Chetti 
 Palmer p. Sinunonds 
 
 Panclicowrie Mull r. Clinmroo Lall ... 
 Papillon P. Voice 
 Parain Singh n. Lalji Mill ... 
 I'areyasami v. Saluckai Tevar 
 Parker p. Bloxam 
 
 v. Brooke ... 
 
 - p. Clr.rke 
 
 p. M'KtMina 
 
 I'arkes' Trust, Re 
 Parkes P. White 
 Parley, Re 
 
 Parnell o. H ings ton ... ... 
 
 Parry P. Warrington ... ... 
 
 Parsons P. Baker 
 
 p. Hay ward ... ' ... 
 
 Partington r. Reynolds 
 Passingham v. Bherborn ... 
 Patch r. Shore 
 Paterson p. Mnrphy 
 Pattenden p. llobson 
 Pan! v. Compton 
 
 Pawlett v. The Attorney-General 
 Pawsou P. Brow ii 
 
 ... 170 
 
 ... 115 
 
 85, 86 
 
 ... 44 
 
 31 
 
 169, 269, 330 
 ... 10-2 
 ...78, 79 
 ... 108 
 364, 403 
 ...20, 23 
 ... 107 
 ... 3-11 
 ... 251 
 109, 2(50 
 ... 324 
 ... 254 
 ... 436 
 ... 960 
 ... 434 
 53, 58 
 ... 173 
 
 78 
 
 ... 253 
 ... 188 
 ... 132 
 
 54 
 
 58, 59, 71 
 ... J74 
 
 78 
 
 33 
 336 
 
xlviii TABLE OF CASES CITED. 
 
 Page 
 
 Payne v. Barker ... ... ... ... ... '269 
 
 r. Compton ... ... ... ... .. 293 
 
 v. Evens ... ... ... ... ... 158 
 
 . Little ... ... ... ... ... 347 
 
 Peacham . Daw ... ... ... ... ... 339 
 
 Pencock, Re ... ... ... ... 429, 430 
 
 Pesike r. Ledger ... ... ... ... ... 344 
 
 Pearce v. Gardner ... ... ... ... ... 174 
 
 v. Pearoe ... ... ... ... .. 330 
 
 Penrse v. Green ... ... ... ... 157,158 
 
 Pearson, Re ... ... ... ... ... 435 
 
 v. Amicable Assurance Co. ... ... ... ... 56 
 
 rr. Benson ... ... . . ... ... 289 
 
 -- v. Lane ... ... ... ... ... 272 
 
 v. Pearson ... ... ... ... ... 221 
 
 Peat v. Lane ... ... ... ... ... 198 
 
 Pechel v. Fowler ... ... ... ... 168, 288 
 
 Peckham v. Taylor ... ... ... ... .. 52 
 
 Peddamuthulaty v. Temma lleddy ... ... ... 87,118 
 
 Pedder v. Mosely ... ... ... ... ... 56 
 
 Pedder's Settlement ... ... ... ... ... 321 
 
 Peers v. Ceeley ... ... ... ... 213 
 
 Peet Koonwar . Chatter Dharee Singh ... ... ... 389 
 
 Pelhnm r. Anderson ... ... ... ... ... 353 
 
 Pell v. De Win ton ... ... ... ... ... 221 
 
 Penfold v. Bouch ... ... ... ... 86, 2<>9 
 
 v. Mould ... ... ... ... ... 56 
 
 Penn v. Baltimore (Lord) ... ... ... ... ... 29 
 
 Pennell v. Deffell ... ... ... ... 141,297,300 
 
 Pepper v. Tuekey ... ... ... .. ... 285 
 
 Peppercorn v. Wayman ... ... ... .. ... 134 
 
 Perrot v. Perrot " ... ... ... ... ... 143 
 
 Perry, In the Goods of ... ... ... ... ... 121 
 
 r. Knott ... ... ... ... 343, 344 
 
 Peter v. Nicholls .. ... ... .. ... 67 
 
 Peterson r. Peterson ... ... ... ... ... 181 
 
 Petre v. Espinas=e ... ... ... ... ... 73 
 
 Peyton's Settlement, lie ... ... ... ... 225,427 
 
 Phate Snheb Bihi v. Damodar Preinji ... ... 381,389 
 
 Phelps, Ex parte ... "... ... . ... 284 
 
 Phene r. Gillan ... ... ... ... ... 216 
 
 Phene's Trusts, In re ... ... ... ... ... 177 
 
 Philips r. Bridges ... ... ... ... 18,273 
 
 c.Philips ... ... ... ... 84,180,198 
 
 Phillips v. Munniues ... ... ... ... ... 123 
 
 Phillpotts v. Phillpotts ... ... ... ... ... 48 
 
 Phillipson v. Gatty ... ... ... ... 167,190 
 
 v. Kerry ... ... ... ... ... 72 
 
 Phipps v. Lovegrove .. ... ... ... ... 176 
 
 Piarey Lall v. Saliira ... .. ... ... ... 30.0 
 
 Pickard v. Anderson ... ... ... ... ... 162 
 
 Pickering P. Pickering ... ... ... ... 150,152 
 
 Pickstock v. Lyster ... ... ... ... ... 62 
 
TABLE OF CASES CITED. 
 
 Page 
 
 Pierce P. Scott ... ... ... ... ... '231 
 
 Piercy v. Roberts ... ... ... ... ... 42 
 
 Pierson v. Garnett ... ... ... ... 78, 283 
 
 Pieschell v. Paris ... ... .. ... ... 359 
 
 Piety v. Stace ... ... ... .. 167, 313 
 
 Pilkington v. Boughey ... ... ... ... ... 78 
 
 Pince v. Beattie ... ... ... ... ... 246 
 
 Pink v. DeThuisey ... ... ... ... ... 154 
 
 Pocock 0, Attorney-General ... ... ... ... 357 
 
 v. Reddington ... ... ... ... 161, 167, 347 
 
 Pole v. Pole ... ... ... ... ... 94 
 
 Pollard v. Doyle ... ... ... ... ... 245 
 
 Pollexfen v. Moore ... ... ... .. ... 133 
 
 Poiufret (Lord) v. Lord Windsor ... ... ... ... 155 
 
 Poole v. Odling ... ... ... ... ... 92 
 
 v. Pass ... ... ... ... ... 212 
 
 Pooley v. Quilter ... ... ... ... ... 252 
 
 Port Canning Co., Re ... ... ... ... 246, 255 
 
 Portai lington (Lord) r. Soul by ... ... ... ... 32 
 
 Porter v. Watts ... ... ... ... ... 332 
 
 Porter's Trusts, Re ... ... ... ... 434, 435 
 
 Portlock r. Gardner ... ... ... ... ... 109 
 
 Portsmouth (Earl of) o. Fellows ... .,. ... ... 285 
 
 Pott v. Todhunter ... ... ... ... 60, 70 
 
 Potter f. Chaninau ... ... ... ... ... 242 
 
 Potts p. Potts ... ... ... ... ... 145 
 
 Powell, In re ... ... ... ... ... 284 
 
 r. Attorney-General ... ... ... ... 353 
 
 v. Evans " ... ... ... ... 138, 198 
 
 p. Glover ... ... ... ... ... 254 
 
 v. Matthews ... ... ... ... ... 420 
 
 Powys v. Blajjrave ... ... ... ... ... 143 
 
 p. Mansfield ... ... ... ... ... 91 
 
 Prankard P. Prankard ... ... ... .. ... 87 
 
 Pranshankar v. Pranath Mahanand ... ... ... ... 377 
 
 Prasanamayi Dasi v. Kaduiubini Dasi .. ... ... 27 
 
 Pratt P. Barker ... ... ... ... ... 117 
 
 p. Matthew .. ... , ... ... 36 
 
 Prendergust p. Prendergast... ... ... ... ... 242 
 
 Prevost P. Clarke ... ... ... ... ... 78 
 
 Price v. Blackmore ... ... ... ... 294,295,297 
 
 v. Byrn ... ... ... ... ... 261 
 
 p. Loaden ... ... ... .. ... 216 
 
 Priddy p. Rose ... ... ... 274,322,323,325 
 
 Pride P. Fooks ... ... ... ... 166,184 
 
 Prideaux p. Londale ... ... ... ... 72 
 
 Primrose, Re ... ... ... ... 178, 442 
 
 Prince v. Hine .... ... ... ... 226, 'I'll 
 
 Prison Charities, In re ... ... ... ... ... 359 
 
 Proby P. Pro by ... ... ... ... ... 125 
 
 Proctor P. Robinson ... ... ... ... ... 119 
 
 Promotho Dossee p. Radhika Persand Dutt ... ... 40, 41, 370 
 
 Prosouuo Kumari Debya v. Golab Chaud Baboo ... ... 374 
 
 G 
 
TABLE OF CASES CITED. 
 
 Page 
 
 Proudfoot v. Hume ... ... ... ..." ... 338 
 
 Prowse v. Spurgin ... ... ... ... 180 
 
 Pryce, In re ... ... ... ... ... 278 
 
 Pugh v. Vaugban ... ... ... ... 143, 269 
 
 Pullen v. Ramalinga ... ... ... .,. ... 105 
 
 Pultney v. Darlington ... ... ... ... ... 321 
 
 Purappa Vanalingam Chetti v. Nallasivan Chetti ... ... 14 
 
 Purikheet Salioo v. Had ha Kishen Saboo ... ... ... 106 
 
 Purmessur Ojiia v. M. S. Goolbee ... ... ... ... 308 
 
 Pushong v. Munia Halwaui ... ... ... 111,114 
 
 Q. 
 
 Queen's College, Re ... ... * ... ... ... 367 
 
 R. 
 
 Raby v. Ridehalgh ... ... ... ... 162, 217, 322 
 
 Rackhaldoss Moducko. Biudoo Basliinee Debia ... ... 103 
 
 Rackham v. Siddal ... ... ... ... ... 123 
 
 Radliabai Kom Cbimnaji Sali v. Chimnaji bin Ratnji Sail ... 364 
 
 Radha Bullub Cliand . Juggut Cbunder Cbowdbree ... ... 375 
 
 Tagore v. Gopee Mohun Tagore ... ... 369 
 
 Moban Dbar v. Rain Das Dey ... ... ... 147 
 
 Rai Cbaran Pal v. Pyari Moni Dasi ... ... ... ... 148 
 
 liajah of Kovilagom v. Kottayatb ... ... ... ... 235 
 
 Muttu Kamalinga Setupati . Perianayagutn Pillai 379, 380 
 
 Riijnarain Roy v. Juggunnatb Persbad Mullick ... ... 105 
 
 . Valad Sbivapa v. Krishna Chat ... ... ... 364 
 
 Vurmah Valia v. Ravi Vurniah Mutba ... 375, 377 
 
 Rajender Dutt . Sbam Cband Mitter ... ... 40,370 
 
 Rajlukbee Dabea v. Gokool Cbunder Chowdhry ... ... 148 
 
 Rajmohun Bose v. Tbe East Indian llaihv ay Co. ... ... 28 
 
 Rakestraw v. Brewer ... ... ... ... ... 109 
 
 Rakbaldas Mndak . Madbu Sudan Madak ... ... 268, 305 
 
 Ram Cbunder Gbosal v. Juggut Momnobiney Dabee ... ... 222 
 
 liaiu Coomar Paul v. Jogender Natb Paul ... ... 373, 374 
 
 Ramanugra Narain v. Mahasundar Kunwar ... ... ... 105 
 
 Ramiengar . Gnanasmbanda Pandarasanunda ... ... 399 
 
 Rauikissen Pajosbee Mabapatur v. Hurry Kissen Mabapatur ... 114 
 
 Ram Lai Tbakursidas v. Lakbmi Cband Muuirain ... 169, 253 
 
 Rain Lall Dut v. Kisben Cbunder Banerjee... ... ... 106 
 
 . . Mookerjee v. Tbe Secretary of State for India ... 376 
 
 Ram Narain Singb v. Ramoon Panrey ... ... ... 380 
 
 Ram Saboy Singb . Mobabeer Persbad ... ... ... 311 
 
 Ramsden v. Hylton .. ... ... .., ... 69 
 
 Ram Soonder Sandial v. Rajab A mind Xatb Roy ... ... 105 
 
 Tbakoor v. Taruck Cbunder Turkoruttun ... 377 
 
 Ram Tonoo Mullick v. Ramgopal Mullick ... ... ... 369 
 
 Randall v. Errington ... ... 257, 258, 259, 261, 262, 289, 291 
 
 Randell's Will, Re ^ ... 427 
 
 Rani Kattama Natcbiar v. Bothagurusanii Tevar ... ... 294 
 
 Raphael v. Boebui ... ... ... 166, 167, 317, 318, 348 
 
 Ratcliffe v. Graves ... ... ... ... ... 313 
 
 v. Winch ... 222 
 
TABLE OF CASES CITED. li 
 
 Page 
 
 Rawortb p. Parker ... ... ... ... ... 76 
 
 liny v. Adams ... ... ... ... ... 78 
 
 Head v. Truelove ... .. ... ... ... 234 
 
 Ileasut AH v. Abbott ... ... ... ... ... 390 
 
 Redington v. Redington ... ... ... ... ... 94 
 
 Reed v. O'Brien ... ... ... ... ... 344 
 
 Reese River Co. v. Atwell ... ... ... ... 61, 64, 65 
 
 Reeve v. Parkins .. ... ... ... ... 288 
 
 Reeves v. Baker ... ... ... ... ... 80 
 
 Reg. v. Norfolk Commissioners of Sewers ... ... ... 214 
 
 Rehden p. Wesley ... ... ... ... 141, 142, 209 
 
 Reid v. Reid ... f ... ... ... ... 328 
 
 Remnant v. Hood ... ... ... ... ... 178 
 
 llennie v. Gunga Narain Chowdry ... ... ... ... 103 
 
 v. Young ... .. ... ... ... ... 190 
 
 Renshaw's Trust?, Re ... ... ... ... ... 434 
 
 Reotee Singli v. Ramjeet , ... ... ... ... 311 
 
 Retoo Raj Pandey v. Lalljee Pandey ... ... ... 148 
 
 Revett v. Harvey ... ... ... ... ... 113 
 
 Rex t7. Newman ... ... ... ... .. 354 
 
 v. Portington ... ... ... ... ... 35 
 
 Reynault, Re ... ... ... ... ... 435 
 
 Reynolds, Ex parte ... ... ... ... 284,291 
 
 Rhodes . Bates ... ... ... ... 117,118 
 
 Richards v. Delbridge ... ... ... ... 53, 54, 55 
 
 v. Perkins ... ... ... ... ... 340 
 
 Richardson v. Bank of England ... ... ... 337, 339 
 
 v. Evans ... ... ... ... ... 450 
 
 v. Larpent ... ... ... ... ... 345 
 
 v. Richardson ... ... ... ... 55, 57 
 
 v. Smallwood ... ... ... ... 62, 64 
 
 . v. Younge ... ... ... ... ... 241 
 
 Rickards v. Gledstanes ... ... ... ... ... 280 
 
 Rider v. Kidder ... ... ... ... 60,87,88,90 
 
 Ridgway v. Newstead ... ... ... ... ... 181 
 
 Rigley, Ex purte ... ... ... ... ... 240 
 
 Riky v. Keinmis ... ... ... ... ... 201 
 
 Hippon P. Norton ... ... ... ... 44, 45 
 
 Rives v. Rives ... ... ... ... ... 431 
 
 Robarts, v. ... ... ... ... ... 331 
 
 Roberdeau v. Rons ... ... ... ... 29, 31 
 
 Roberts v. Gordon ... ... ... ... 122, 321 
 
 v. Tunstall ... ... ... ... ... 261 
 
 Robertson P. Armstrong ... ... ... ... 171,184,240 
 
 Robinson v. Litton ... ... ... ... ... 143 
 
 . p. Lowater ... ... ... ... ... 230 
 
 P. M'Donell ... ... ... ... ... 65 
 
 v. Pett ... ... ... 132,243,247,252 
 
 , P. Ridley ... ... ... ... 290, 291 
 
 v. Robinson ... ... ... ... 165, 166 
 
 p. Smith ... ... ... ... ... 78 
 
 Roche, In re ... ... ... ... ... 329 
 
 Rochford v. Hackman ... ... ... 46, 274 
 
Hi TABLE OF CASES CITED. 
 
 Page 
 
 Rocke v. Hart ... ... ... ... ... 347 
 
 v. Rocke ... ... ... ... ... 272 
 
 Rogers r. Rogers ... ... ,.. ... 84, 338 
 
 v. Skilltcorne .. ... ... ... ... 230 
 
 Rohee Lnll r. Dindyal Lall ... ... ... ... 102 
 
 Holland v. Hart ... ... ... ... ... 280 
 
 Rook P. Wnrth ... ... ... ... ... 321 
 
 Hoop Narain Singh v. Gugadhur Pershad Narain ... ... 293 
 
 v. Juuko Bye ... ... ... 386,403 
 
 Roper v. Radelifie .. .. ... ... ... 83 
 
 Ross v. Ross ... ... ... ... 41,236 
 
 Rossiter v. Trafalgar Life Assurance Go. ... ... ... 222 
 
 Rothwell v. Rothwell ... ... x ... ... ... 339 
 
 Roushun Kliatoon Chowdrain r. The Collector of Mymensingh . 105 
 
 Routh r. Howall ... ... ... ... ... 140 
 
 Rowe v. Howe ... ... ... ... ... 151 
 
 Rowland v. Moraan ... ... ... ... ... 217 
 
 v. Witherden ... ... ... ... 163.167 
 
 Rowley v. Adams ... ,.. ... ... 137.424,438 
 
 Roy v. Gibbon ... ... ... ... 338.339 
 
 Rtijabai r. Ismail Ahmed ... ... ... ... 59,114,117 
 
 Ru'knadawlu Xowab Ahmed Ali Khan v. Himhvari Mull 98, 100, 102 
 
 Russell, Ex pnrie ... ... ... ... ... 427 
 
 v. Jackson ... ... ... ... ... 79 
 
 v. Kellett ... ... ... ... 353, 357, 360 
 
 Ryal v. Ryal ... ... ... ... ...86, 88 
 
 Rycroft v. Christy ... ... ... ... ...57,68 
 
 Ryder . Bickerton ... ... ... ... ... 160 
 
 S. 
 
 Sabapathi v. Subraya ... ... ... ... ... 404 
 
 Sabin v. Heap ... ... ... ... ... 231 
 
 Sacaram v. Laxmabai ... ... ... ... ... 308 
 
 Sackville West v. Holmesdale (Viscount) ... ... ... 23 
 
 Sadd.lfe ... ... ... ... ... 216 
 
 Sadler . Hobbs ... ... ... ... ... 205 
 
 Sahebzada Singh v. Gundaree Roy ... ... ... ... 109 
 
 Sale r. Moore ... ... ... ... ...78,79 
 
 Salter r. Cavnnngh ... ... ... ... ... 84 
 
 Salt marsh v. Barrett ... ... ... ... ... 178 
 
 Salusbury v. Bagott ... ... ... ... 293, 294 
 
 v. Denton ... ... ... ... 283, 361 
 
 Sal way v. Salway ... ... ... ... ... 141 
 
 Sampnyo v. Gould ... ... ... ... ... 160 
 
 Senders v. Homer ... ... ... ... ... 431 
 
 Sanderson v. Walker ... ... ... 258, 264, 291, 347 
 
 Sanderson's Trust, Re ... ... ... ... 42, 242 
 
 Sanclon . Hooper ... ... ... ... ... 215 
 
 Sands v. Nugee ... ... ... ... ... 328 
 
 Sankarappa v. Ivamnyya ... ... ... ... ... 105 
 
 Saravana v. Muttayi ... ... ... ... ... 308 
 
 Sarkies v. S. M. Prosonomoyee Dossee ... 126, 127, 133, 352 
 Saroda Pershad Chattopadhya v. Brojo Nath Bhuttachaijee ... 187 
 
TABLE OF CASES CITED. liii 
 
 Page 
 
 Saroda Sundaii Debi o. Gobind Muni ... ... ... 177 
 
 Satoor . Satoor ... ... ... ... ... 337 
 
 Saumarez, Re ... ... ... ... ... 439 
 
 Siiunders . Dehew ... ... ... ... ... 292 
 
 P.Neville ... ... ... .. ... '270 
 
 v. Siiunders ... ... ... ... ... 346 
 
 0. Vnutier ... ... ... ... ... 272 
 
 v. Watson ... ... ... ... ... 61 
 
 Savage r Robertson ... ... ... ... ... 37 
 
 Sayre r. Hughes ... ... ... ... ...91, 92 
 
 Scales v. Baker ... ... .. ... ... 303 
 
 Scawin v Scawin ... ... ... ... ... 95 
 
 Score v. Ford ... ... ... ... 338, 339 
 
 Scott v. Becher ... ... ... ... 289, 340 
 
 v. Davis ... ... ... ... ... 261 
 
 v. Key ... ... ... ... ...79,81 
 
 v. Nesbitt ... ... ... ... 29, 261 
 
 v. Scott ... ... ... ... ... 70 
 
 Scrope v. Offley ... ... ... ... ... 117 
 
 Scroope v. Scroope ... ... ... ... ... 94 
 
 Scultliorp o. Burgess ... ... ... ... ... 90 
 
 Scultborpe v. Tipper ... ... ... ... 175, 184 
 
 Sengram o. Knight ... ... ... ... 144, 221 
 
 Sealy v. Stawell ... ... ... ... ... 295 
 
 Searle v. Law ... ... ... ... ... 55 
 
 Seely v. Jago ... ... ... ... 320, 321 
 
 Segrave v. Kirwan ... ... ... ... ... 110 
 
 Selby v. Bowie ... ... ... ... 169, 173 
 
 Selyard v. Harris ... ... ... ... ... 343 
 
 Seshayyangar v. Sesliayyangar ... ... ... ... 380 
 
 Sewell's Estate. In re ... ... ... ... ... 15 
 
 Shafto P. Adams ... ... ... ... ... 71 
 
 Shah Guliiin Kahnmtulla Sahib v. Mahommed Akbar Sahib 388, 389 
 
 Moheeuddeen Ahmed v. Elahee Buksh ... ... ... 388 
 
 Wajed Hossein v. Baboo Nankoo Singh... ... ... 311 
 
 Shahzadi Hajra Begum v. Khaja Hossein Ali Khan ... .. 385 
 
 Shakeshuft, Ex parts ... ... ... ... 167,168 
 
 Shales v. Shales ... ... ... ... ... 95 
 
 Sham Kissore Shaw v. Cowie ... ... ... ... 60 
 
 Shama Soonduree Chowdhrain v. Jnmoona Chowdhrain 147, 148 
 
 Sharp v. Cosserat ... ... ... ... ... 45 
 
 v. Leach ... ... ... ... 111,118 
 
 v. Sharp ... ... ... ... ... 328 
 
 Kharpe v. Foy ... ... ... ... ... 280 
 
 Shaw v. Borrer ... ... ... ... ... 220 
 
 -j. Lawless ... ... ... ... ... 216 
 
 Shaw's Trust, Re ... ... ... ... ... 144 
 
 Shee v. Hale ... ... .. ... ... 47 
 
 Sheffield v. Buckinghamshire (Duchess of) ... ... ... 32 
 
 Sheik Abdool Khalek v. Poran Bibee ... ... ... 388 
 
 Shelmerdiue, lie ... ... ... ... ... 434 
 
 Sheo Pershad Sinh v. M. S. Soorj Bunsee Kooer ... ... 311 
 
 Sheoraj Kooer v. Nukchedee Lall ... ... ... 307, 308, 311 
 
llV TABLE OF CASES CITED. 
 
 Page 
 
 Sheoram Gbose v. Dataram Ghose ... ... ... ... 92 
 
 Shepherd v. Monls ... ... ... ... ... 165 
 
 v. Nottige ... ... ... ... ... 78 
 
 Sheppard's Will, Re ... ... ... ... ... 438 
 
 Sheridan v, Joyce ... ... ... ... ... 176 
 
 Sherifl r. Axe ... ... ... ... 243, 254 
 
 Sherwood, Inre ... ... ... ... ... 244 
 
 Shewen v. Vanderhorst ... ... ... ... ... 232 
 
 Shipbrook (Lord) v. Hinchinbrooke (Lord) ... 199, 200, 205 
 
 Shoojat Ali v. Zumeerooddeen ... ... ... ... 386 
 
 Shovelton v. Shovelton ... ... ... ... 78, 82, 346 
 
 Shrewsbury v. Hornby ... ... ... ... ... 353 
 
 Shurbo Narain Singh v. Ally Buksh Shah ... ... ... 384 
 
 Sidmouth v. Sidtnouth ... ... ... ... 88, 94, 95 
 
 Singers #. Evans ... ... ... ... 73, 76 
 
 Sillick v. Booth ... ... ... ... ... 177 
 
 Simes v. Eyre ... ... ... ... ... 343 
 
 Simon v. Barber ... ... ... ... ... 359 
 
 Simpson v. Chapman ... .. ... ... ... 256 
 
 Sirdar Sainey v. Piran Singh 
 Sisson v. Shaw ... 
 
 Sitapershad v. Thakur Dass 
 Skarf v. Soulby 
 
 51 
 ... 226 
 377, 378 
 63, 64 
 
 Skidmore v. Bradford ... ... ... ... ... 94 
 
 Skingley, lie ... ... ... ... ... 144 
 
 Skitter's Mortgage, Re ... ... ... ... ... 421 
 
 Skottowe v. Williams ... ... .,. ... 118,119 
 
 Skynner . Pelichet ... ... ... ... ... 430 
 
 Slde. Rigg ... ... ... .- ... 344 
 
 Slaney v. Watney ... ... ... ... 133,248 
 
 Sleeman . Wilson ... ... ... ... ... 254 
 
 Sleight . Lawson ... ... ... ... ... 187 
 
 Sloane v. Cadogan ... ... ... ... ... 56 
 
 Sloman v. The Bank of England ... ... ... ... 179 
 
 Sloper, Re ... ... ... ... ... 438 
 
 r.Cottrell ... ... ... ... ... 56 
 
 Sluysken v. Hunter ... ... ... ... ... 72 
 
 Smart, Ex parte ... ... ... ... ... 280 
 
 v. Bradstock ... ... ... ... ... 345 
 
 Smirthwaite's Trusts, Re ... ... ... ... ... 434 
 
 Smith, Ex parte ... ... ... ,.. 241,261 
 
 . Baker ... ... ... ... ... 87 
 
 v. Bold en ... ... ... ... ... 176 
 
 v. Dresser ... ... ... ... ... 212 
 
 - 0. Garland ... ... ... ... ... 67 
 
 r. Guy on ... ... ... ... ... 231 
 
 r. Kay Ill 
 
 v. Lyne ... ... ... ... 59,71 
 
 77. Smith ... ...123,131,280,323,340,437,458 
 
 v. Warde ... ... ... 95 
 
 v. Wheeler ... ... ... 268 
 
 .Willis ... ... 212 
 
 Smyth's Settlement, Re ... ... ... ... ... 437 
 
TABLE OF CASES CITED. Iv 
 
 Page 
 
 Sneesby v. Tliorne ... ... ... ... ... 169 
 
 Snowdon v. Dales ... ... ... ... 41, 42, 274 
 
 Soar v. Foster ... ... ... ... ...88, 91 
 
 Somerset v. Cox ... ... ... ... ... 280 
 
 Sonatun Bysack v. S. M. Jnjrgut Soondree Dossee ... 369, 374 
 
 Sonley . The Clockmakers Co. ... ... ... ... 282 
 
 Soodheekeena Chowdhrain v Gopee Mohnn Sein ... ... 60 
 
 Sookram Doss Molmnt v. Nnnd Kishore Doss Mohunt... ... 405 
 
 Boorendro Persliad Dobey v. Nundun Misser . ... 307 
 
 Soorjeemoney Dossee v. Denobundoo Mullick ... ... 35 
 
 Soudaminey Dossee v. Jogesh Chunder Dutt ... ... 40 
 
 Soulby, Re ... ... ... ... ... 455 
 
 Sowarsby v. Lacey ... ... ... ... ... 231 
 
 Sparrow, Re ... ... ... ... ... 435 
 
 Spawfbrth's Settlement, Re... ... ... ... ... 427 
 
 Spirett v. Willows ... - ... ... ... ...63,64 
 
 Spring v Pride ... ... ... ... 262, 263 
 
 Spriugett v. Dasliwood ... ... ... ... ... 158 
 
 Sreeman Chunder Dey v. Gopaul Chunder Chuckerbutty 101, 102 
 
 S. M. Bramumayi Dasi v. Jojres Chunder Dutt ... ... 40 
 
 Debia Chowdhrani v. Bimola Soonduree Debia . . ... 107 
 
 Jagadiimba, Diisi v. S. JYI. Padamaiii Dasi ... ... 27 
 
 Kamini Debi v. Ramlochan Sirkar ... ... ... 258 
 
 Krislinaramani Dasi v. Ananda Krishna J3ose ... 8, 12, 40 
 
 Sukhimani Dasi v. Mahendranath Dutt ... ... 105 
 
 Sreenath Roy . Cally Doss Ghose ... ... ... ... 27 
 
 Stacey v. Elph ... ... ... ... 122, 133, 258 
 
 Stafford, v. Fiddon ... ... ... ... ... 314 
 
 v. Stafford ... ... ... ... ... 190 
 
 Standen v. Bullock ... ... ... ... ... 69 
 
 Stanes v. Parker ... ... ... ... ... 247 
 
 Stanford v. Roberts ... ... ... ... ... 211 
 
 Stiiuilaud v. Staniland ... ... ... ... ... 81- 
 
 Stanley v. Stanley ... ... ... ... ... 272 
 
 v. Lennard ... ... ... ... ... 21 
 
 Stausfield v. Habergham ... ... ... ... ... 143 
 
 Stanton v. Hall ... ... ... ... ... 45 
 
 Stapleton v. Stapleton ... ... ... ... ...53, 58 
 
 Stephens v. James ... ... ... ... ... 45 
 
 v. Olive ... ... ... ... ... 64 
 
 v. Venablea ... ... ... ... 280,325 
 
 Stevens v. Austen ... ... .., ... ... 169 
 
 Stewart, Ex parle ... ... ... ... ... 279 
 
 , Re ... ... ... ... ... 420 
 
 v. Hoare ... ... ... ... ... 212 
 
 Stickney. v. Sewell ... ... ... ... 163, 266 
 
 Stikeman v. Dawson ... ... ... ... ... 128 
 
 Stileman v. Ashdown ... ... ... .. ... 94 
 
 Stilwell v. Ashley ... ... ... ... ... 421 
 
 Stoeken v. Dawson ... ... ... ... ... 244 
 
 Stokes' Trusts, Re ... ... ... ... 331, 405 
 
 Stokoe v. Cowan ... ... ... ... 60, 62 
 
 Stone v. Godfrey ... ... ... ... ... 156 
 
Ivi TABLE OF CASES CITED. 
 
 Page 
 
 Stone v. Liddertlule ... ... ... ... ... 35 
 
 * r. Stone ... ... ... ... 95, 137 
 
 Stonehouse v. Evelyn ... ... ... ... ... 85 
 
 Stones v. Rowton ... ... ... .,. ... 328 
 
 Stratford v. Twynaiu ... ... ... ... ... 265 
 
 Stretz's Trusts, Re ... ... ... ... ... 47 
 
 Strong v. Strong ... .. ... ... ... 61 
 
 Stroud v. Gwyer ... ... ... ... ... 236 
 
 Stroud's Trusts, Re ... ... ... ... ... 428 
 
 Stroughill v. Anstey ... ... ... ... 170, 174, 230 
 
 Stuart . Stuart ... ... ... ... ... 162 
 
 Stubbs v. Sargou ... ... ... ... ... 86 
 
 Stump v. Gaby ... ... ... ... ... 118 
 
 Styles v. Guy ... 121, 138, 139, 160, 190, 202, 205 
 
 Suboodra Heebee v. Bikromadit Singh ... ... 107,156 
 
 Sugden v. Crosulund ... ... ... ... 255, 330 
 
 Surnj Hunsi Koer v. Sheo Persad Singh ... ... ... 312 
 
 Sutclitfe v. Richardson ... ... ... ... ... 82 
 
 Sutherland v. Cooke ... ... ... ... ... 149 
 
 Suttaprosunno Ghosal v. Rakhalmoney Dossee ... ... 53 
 
 Sutton v. Jones ... ... ... ... ... 255 
 
 v. Wilders ... ... ... ... 140,179 
 
 Swale v. Swale ... ... ... ... ... 341 
 
 Swayne v. Swayne ... ... ... ...' ... 281 
 
 Swinfen v. Swinfen ... ... ... ... 141, 142 
 
 Syed A uiin Sahib v. Ibrain Sahib ... ... ... ... 403 
 
 Khodabux Khan v. M. S. Oouiutul Fatima ... ... 181 
 
 Sykes v. Hastings ... ... ... ... ... 255 
 
 v. Sykes ... ... ... ... ... 38 
 
 Symes v. Hughes ... ... ... ... 19, 48, 85 
 
 Syud Asheerooddeen v. M. S. Drobo Moyee ... ... ... 387 
 
 Bazayet Hossein v. Dooli (Jhand ... ... ... 312 
 
 --- Iiiidad Hossein v. Syud Afzul Hossein ... ... ... 387 
 
 lindad Hossein v. Mahomed Ali Khan ... ... ... 404 
 
 Tasouwar Ali v. Koonj Beharee Lall ... ... 307, 308, 311 
 
 T. 
 
 Tabor v. Brookes ... ... ... ... ... 154 
 
 Tahboonissa Bibee v. Koomar Sham Kishore Roy ... ... 374 
 
 Tait v. Jenkins ... ... ... ... ... 341 
 
 Talbot v. Hope Scott ... ... ... ... ... 340 
 
 v. Marshfield ... ... ... ... 242, 339 
 
 U.Radnor ... ... ... ... ... 133 
 
 Tandavaraya Mudali 0. Valli Ammal ... ... ... 311 
 
 Tanner v. Elworthy ... ... ... ... ... 108 
 
 Tara Monee Debia v. Shibnath Tulapattur ... ... ... 102 
 
 Soonduree Debea v. Oojul Monee Dossee ... ... 104 
 
 Tarragona ... ... ... ... ... 125 
 
 Tate v. Leithead ... ... ... ... ... 53 
 
 Tathaiu v. Vernon ... ... ... ... ... 20 
 
 Taylor, Be ... ... ... ... ... 434 
 
 v. Allen ... .. ... ... 289,340 
 
 v. Cartwright 192 
 
TABLE OF CASES CITED. 
 
 Ivii 
 
 Taylor c. Coenen ... 
 
 r. George ... 
 
 v. Glanville ... 
 
 v. Haygarth 
 
 c. Millington 
 
 . c. Plummer 
 
 -. v. Tabrum ... 
 
 v. Taylor ... 
 Teague's Settlement, Re ... 
 Tebbs v. Carpenter 
 Tempest, Ex parte 
 
 v. Ciimoys (Lord) ... ... 
 
 Tempter's Trusts, lie 
 
 Tennant v. Trencliard ... ... ... 
 
 Terrell v. Matthews ... 
 
 Thacker v. Key 
 
 Thakur Shere Bahadur v. Tbakurain Dariao Kuar 
 
 Thomas v. Bering ... 
 
 c.Walker 
 
 Thompson v. Ulackstone ... ... 
 
 . v. Clive ... ... ... 
 
 v. Corby ... ... ... 
 
 . v. Eastwood ... ... ... 
 
 . . Finch 
 
 . v. Harrison ... ... ... 
 
 v. Linch ... 
 
 v. Simpson ... 
 
 v. Tomkins 
 
 . v. Thompson .... ... ... 
 
 . v. Webster ... ... ... 
 
 v. Whitmore ... ... ... 
 
 Thomson v. Shakespeare ... ... ... 
 
 Thorby v. Yeats ... 
 
 Thornber v. Wilson ... ... ... 
 
 Thorndike v. Hunt ... ... ... 
 
 Thornton v. Howe 
 
 Thorp v. Owen 
 
 Thorpe v. Jackson ... ... ... 
 
 Thrupp v. Collett 
 Tibbits v. Tibbits 
 
 Tickner . Smith ... .,. ... 
 
 Tidd v. Lister 
 
 Tiluk Chand v. Jitamal ... 
 
 Timson v. Ramsbottom ... ... 
 
 Tipping v. Eckersley 
 
 Titley v. Wolstenholme 
 
 Todd v. Moorhouse ... ... ... 
 
 v. Wilson ... 
 
 Toker v. Toker ... 
 
 Toller v. Carteret ... 
 
 Tomson v. Brown 
 
 - v. Judge 
 
 ToonduD Singh v, Pokh Narain Singh 
 
 Page 
 ... 62 
 78 
 
 217,269,270,347 
 
 157,256 
 
 ... 136 
 
 294, 296 
 
 ... 225 
 
 ... 95 
 
 40 
 
 137, 138, 193, 313, 314, 318, 348 
 
 66 
 
 ... 286 
 ... 155 
 ... 422 
 . 264 
 198,204 
 
 242 
 
 127 
 
 ... 154 
 ... 436 
 
 169 
 
 ... 158 
 ... 353 
 191,192 
 72, 191,195, 239 
 
 192 
 
 ... 188 
 ... 294 
 
 279 
 
 ... 354 
 62, 63, 70 
 
 72 
 
 49, 355 
 ... 269 
 ... 353 
 ... 293 
 48, 353 
 56, 80,81 
 ... 344 
 ... 354 
 ... 78 
 ... 314 
 268, 340 
 ... 105 
 ... 280 
 ... 145 
 ... 238 
 ... 215 
 ... 247 
 71, 111, 117 
 ...29,31 
 ... 72 
 ... 114 
 103 
 
Iviii TABLE OF CASES CITED. 
 
 Page 
 Toplia v. Hurrell ... ... ... ... ... 205 
 
 Towneud v. Toker ... ... ... ... 60,67,69,70 
 
 v. Townend ... ... .. .'.. 251,256 
 
 v. Westacott 
 
 Townley r. Bedwell 
 
 v. Slierborne 
 
 Townsend v. Biirber 
 
 v. Early 
 
 - v. Townsend 
 
 v. Westacott 
 
 Townson v. Tickell 
 Trafford v. Boehm 
 
 64 
 ... 354 
 193, 199, 240 
 ... 205 
 ... 47 
 ... 303 
 ... 92 
 133 
 161, 189, 321 
 
 Travis v . Illingwortli ... ... ... ... 213,328 
 
 Treepoora Soondery Dossee v. Debendronath Tagore ... ... 28 
 
 Tregonwell . Sydenhain ... ... ... ... ...85, 86 
 
 Trench . Harrison ... ... ... ... 294,295,303 
 
 Trevelyan v. Charter ... ... ... ... ... 290 
 
 Treves v. Townshend ... .. ... ... ... 313 
 
 Trustees of tbe British Museum v. White ... ... ... 350 
 
 Trutch v. Lamprell ... ... ... ... ... 237 
 
 Tryon, Re ... ... ... ... ... 134 
 
 Tucker v. Burrow ... ... ... ..91,94 
 
 . Horueman ... ... ... ... ... 217 
 
 Tull v. Parlett ... ... ... ... .. 70 
 
 Tunstall's Will, Re ... ... ... ... 435,436 
 
 Turner P. Buck ... ... ... ... ... 175 
 
 0. Collins ... ... ... ... 111,119 
 
 77. Corney ... ... ... ... ... 235 
 
 v. Frampton ... ... ... ... ... 178 
 
 v. Harvey ... ... .. ... ... 169 
 
 v. Maule ... ... ... ... ... 177 
 
 v. Ogden ... ... ... ... ... 353 
 
 c.Turner ... ... ... ... 313,314 
 
 Twopeny . Peyton ... ... ... ... ... 42 
 
 Twyne's Case ... ... ... ... ... 61 
 
 Tyleec. Tylee ... ... ... ... ... 340 
 
 U. 
 
 Underwood v. Stevens ... ... ... 198,199,201,205 
 
 Uniacke, Re ... ... ... ... ... 120 
 
 Union Bank of Manchester, Ex parte ... ... ... 278 
 
 Urch v. Walker ... ... ... 121,122,133,177 
 
 Uvedale v. Ettrick ... ... ... ... ... 285 
 
 V. 
 
 Van p. Barnett ... ... ... ... ... 321 
 
 Vance v. Vance ... ... ... ... 92, 94, 208 
 
 Vandenberg v. Palmer ... ... .... ... .. 57, 58 
 
 Van Sandau v. Moore ... ... ... ... ... 346 
 
 Vaughan . Vanderstegen ... ... ... ... ... 217 
 
 Vaughton v. Noble ... ... ... ... 252, 322 
 
 Venkatabalakrishna Chettiyar v. Kaliya Naramaiyangar ... 399 
 
 Venkataramayyan v. Veukatasubramania Dikshatar ... ... 311 
 
TABLE OF CASES CITED. lix 
 
 Page 
 
 Venkatasa Xaidu p. Sadugopasnmy Iyer ... ... ... 405 
 
 Nay iid u p. Shrivan Shatgagopa Swami ... ... 14 
 
 Vezey p. Jamson ... ... ... ... ... 355 
 
 Vickers P. Scott ... ... ... ... ... 173 
 
 Yiirrass n. Minfield ... ... ... .. ... 339 
 
 Villiers P. Beaumont ... ... ... ... 65,111 
 
 Viner v Vaiighan ... ... ... ... ... 143 
 
 Viney p. Chaplin ... ... ... ... ... 171 
 
 Vital Vishva Nath Prabhu p. Ram Chandra Sadasiv Kirkire ... 52 
 
 Voyle P. Hughes . ... ... ... ... 56 
 
 Vyse p. Foster ... ... ... 251,315,318,320 
 
 w. 
 
 Wade p. Hopkinson ... ... ... ... ... 426 
 
 p. Paget ... ... ... ... ... 18 
 
 Wainford P. Heyle ... ... ... ... ... 131 
 
 Waite v. Littlewood ... ... ... ... ... 226 
 
 Wake P. Wake ... ... ... ... ... 431 
 
 Wakeford, lie ... ... ... ... ... 418 
 
 Waldo v. Coley ... ... ... ... ... 356 
 
 p. Waldo ... ... ... ... ... 220 
 
 Walker, Re ... ... ... ... 244,419 
 
 p. Shore ... ... ... ... ... 174 
 
 p. Smallwood ... ... ... ... 168,232 
 
 p. Smith ... ... ... ... ... 114 
 
 p. Symonds ... ... 139, 157, 160, 195, 199. 240 
 
 r. Walker ... ... ... ... 163,266 
 
 Walker's Mortgage Trusts, Re ... ... ... ... 421 
 
 Wallace P. Anderson ... ... ... ... ... 44 
 
 Walley P. Walley ... ... ... ... 109, 344 
 
 Walsh p. Gladstone ... ... ... ... ... 353 
 
 Walwyii P. Coutts ... ... ... ... 73, 74, 75 
 
 Walsham v . Stainton ... ... ... ... 217,322 
 
 Walters p. Woodbridge ... ... ... ... ... 214 
 
 Warburton p. Hill ... ... ... ... 281,282 
 
 p. Sandys ... ... ... ... ... 335 
 
 Ward P. Audland ... ... ... ... ... 54 
 
 v. Hipwell ... ... ... ... ... 241 
 
 p. Shallett ... ... ... ... ... 69 
 
 p. Ward ... ... ... ... ... 220 
 
 Ware v. Cann ... ... ... ... ... 41 
 
 p. Gardner ... ... ... ... ... 64 
 
 Wanuan p. Seaman ... ... ... ... ... 90 
 
 Warren p. Rudall ... ... ... ... ... 133 
 
 Warrenche P. Foster ... ... ... ... ... 41s 
 
 Warriner p. Rogers ... ... ... ... ...53,58 
 
 Wasik All Khan v. The Government ... ... ... 402 
 
 Waterhouse P. Standfield ... ... ... ... ... 32 
 
 Watkins P. Cheek ... ... ... ... ... 231 
 
 Watson r. Hayes ... ... ... ... ... 85 
 
 v. King ... ... ... ... ... 45j 
 
 p. Parker ... ... ... ... 64 
 
I* TABLE OF CASES CITED. 
 
 Page 
 
 Watson v. Pearson ... ... ... ... ... 335 
 
 . Row ... ... ... ... ... 214 
 
 v. Toone ... ... ... 257, 261, 265, '289, 290 
 
 Watts, Exparte ... ... ... ... ... 216 
 
 v- Girdlestone ... ... ... ... ... 160 
 
 Watts' Settlement, Re ... ... ... ... ... 330 
 
 Way, Re ... ... 53, 56, 58, 72 
 
 Weale v. Ollive ... ... ... ... .. 55, 56 
 
 Webb . Shaftesbury (Earl of) .. ... 214, 223, 247, 288 
 
 v. Ledsam ... .. ... ... ... 230 
 
 v. Rorke ... ... ... ... ... 260 
 
 v. Webb ... ... ... ... ... 346 
 
 v. Wools ... ... ... ... ... 80 
 
 Webster . Webster ... ... ... ... ... 280 
 
 Wedderburn r. Wedderburn ... ... ... 244,251,253 
 
 Wedgwood . Adams ... ... ... ... ... 178 
 
 Weller . Ker ... 155 
 
 Wellesley v. Wellesley ... ... ... ... ... 83 
 
 West v. Dobb 450 
 
 v. Jones ... ... ... ... ... 171 
 
 - v. Shuttleworth ... ... ... ... ... 350 
 
 Westbrooke, In re ... ... ... ... 212, 244 
 
 Westcott . Culliford ... ... ... ... ... 178 
 
 Westhead v. Sale ... ... ... ... ... 441 
 
 Westley v. Clarke ... ... ... ... ... 194 
 
 Westover v. Chapman ... ... ... ... 161,266 
 
 Wetherell v. Wilson ... ... ... ... ...80,82 
 
 Wheatley v. Purr ... ... ... ... 53, 57, 58 
 
 Wheeler . Smith ... ... ... ... ...81,87 
 
 Wheldale v. Partridge ... ... ... ... ... 321 
 
 Whelpdale v. Cookson ... ... ... ... 258,264 
 
 Whichcote v. Lawrence ... ... ... 257, 258, 261, 262 
 
 Whicker v. Hume ... ... ... ... ... 3o4 
 
 Whitcomb . Miuchin ... ... ... ... ... 260 
 
 White, Re ... ... ... ... 420, 428 
 
 v. Barton ... ... ... ... 121,339 
 
 v. Baugh ... ... ... ... ... 141 
 
 . Baylor ... ... ... ... ... 282 
 
 v. Briggs . . ... .. ... ...78, 79 
 
 v. Cuddon ... ... ... ... 169, 224 
 
 v. Foljambe ... ... ... ... ... 170 
 
 v. Jackson ... ... ... ... 157,158 
 
 v. Tommy... ... ... ... ... ... 260 
 
 Whitfield r. Prickett ... ... ... ... ... 47 
 
 Whitmarsh v. Robertson ... ... ... ... ... 336 
 
 Whitmore v. Turquand ... ... ... ... 76, 337 
 
 Whitney v. Smith ... ... ... ... ... 246 
 
 Widdowson v. Duck ... ... ... ... ... 232 
 
 Wiplesworth v. Wiglesworth ... ... ... ... 167 
 
 Wilding v. Bolder ... ... ... ... 132,285 
 
 -p. Richards ... ... ... ... ... 76 
 
 Wiles v. Gresham ... ... ... ... 193,222,287 
 
 Wilkes' Charity, lie ... ... ... ... 153,155,242 
 
TABLE OF CASES CITED. x 
 
 Page. 
 
 Wilkins . Hogg ... 209 
 
 p. Sibley ... .. 324 
 
 Wilkinson v. Bewick ... ... ... ... 142 
 
 . Duncan ... ... ... ... ... 174 
 
 . p. Ilartly 224 
 
 v. Lindgren ... ... ... ... ... 358 
 
 r. Maliu ... 241, 262 
 
 p. Parry 19-', 3'27, 344 
 
 o.Wilkinson ... ... ... ... 212,214 
 
 Wilks v. Groom ... ... ... ... 141,421 
 
 Willats P. Busby 64, 344 
 
 WillM v. QnenbUI ... ... ... 274,280,281,325 
 
 Willett v. Blamlford ... ... .. ... 251,253 
 
 Williams, .Re ... .- ... ... 49,354 
 
 Williams v. Allen ... ... ... ... 823, 343 
 
 p. Arkle ... ... ... ... ... 86 
 
 p. Bayley ... ... ... ... ... 115 
 
 v. Coade ... ... ... ... .. 80 
 
 p. Corbett ... ... ... ... 80,215 
 
 p. Duke of Bolton ... ... ... ... 144 
 
 P. Earle ... ... ... ... ... 449 
 
 v. Kersbaw ... ... ... ... 86,356 
 
 p.Nixon ... ... ... ... 193,201 
 
 p. Thorpe ... ... ... ... ... 278 
 
 p. Williams ... ... ... ... ... 94 
 
 Williams' Settlement, Re ... ... ... ... ... 328 
 
 Willis P. Hiscox ... ... ... ... ... 269 
 
 p. Kibble 247 
 
 P.Willis ... ... ... ... ... 88 
 
 Wilmot P. Pike ... ... ... ... ... 281 
 
 Wilsou P Bell 81 
 
 . p. Clapbam ... ... ... . . ... 83 
 
 . v. Muddison ... ... ... ... ... 82 
 
 p. Peake ... ... ... ... ... 166 
 
 Wilton v. Hill ... ... ... ... ... 337 
 
 Wiltshire P. Rabbits ... ... ... ... ... 281 
 
 Winch P. Bruttou ... ... ... ... ...79, 80 
 
 p. Keeley ... ... ... ... ... 131 
 
 Wiser. Wise ... ... ... ... ... 120 
 
 Withers p. Withers ... ... ... ... ... 87 
 
 Withington P. Withington... ... ... ... ... 330 
 
 Wollaston P. Tribe ... ... ... ... ... 112 
 
 Wood, Re ... ... ... ... . 420 
 
 Wood P. Bittlestone ... ... ... ... ... 431 
 
 p. Cox ... ... ... ... 78, 80, 84 
 
 p.Dixie ... ... ... ... ... 61 
 
 p Downes ... ... ... ... 261,339 
 
 - p. Gaynon ... ... ... ... ... 144 
 
 - p. Richardson ... ... ... ... ... 169 
 
 p. Stanes ... ... ... ... ... 284 
 
 p. Weigh tman ... ... ... ... ... 236 
 
 Woodbnrn P. Grant ... ... ... ... ... 278 
 
 Woodfall P. Arbuthnot ... .. ... ... ... 437 
 
Ixii TABLE OF CASES CITED. 
 
 Page 
 
 Woodford v. Charnley ... ... ... ... .. 55, 56 
 
 Woodgates' Settlement, Re ... ... ... ... 434 
 
 Woodhead v. Marriott ... ... ... ... ... 314 
 
 Woodhouselee v. Dalrymple ... ... ... ... 177 
 
 Woods o. Axton ... ... ... ... ... 213 
 
 v Woods ... ... ... ... 81,346 
 
 Woody att r. Gresley ... ... ... ... 322,323 
 
 Woollaston P. Tribe ... ... ... ... ... 72 
 
 Woolmore v. Burrows ... ... ... ... 24 
 
 Worcester, Be ... ... ... ... 278,279 
 
 Worley v. Frampton ... ... ... ... ... 225 
 
 Worrall v. Hurford ... .. ... ... 215,209,212 
 
 Wragge, Re ... ... ... ... ... 438 
 
 Wray v. Steel ... ... ... ... ... 87 
 
 Wren r. Kirton ... ... ... ... ... 237 
 
 Wright P. Pearson ... ... ... ... ... 21 
 
 v. Snowe ... ... ... ... 128,180 
 
 v. V and er plank ... ... ... ... 111,118 
 
 p. Wright ... '... ... ... ... 25 
 
 Wyatt P. Sharratt ... ... ... ... ... 339 
 
 Wyche, Re ... ... ... ... ... 247 
 
 Wyime . Humberston ... ... ... ... 212, 272 
 
 Y. 
 
 Yarnold p. Moorehouse ... ... ... ... ... 45 
 
 Yeap Cheah Neo v. Ong Cheng Neo ... ... ... 352 
 
 Yellappa-bin Basappa v Mantappa-bin Basapa ... ... 292 
 
 Yem v. Edwards ... ... ... ... ... 108 
 
 Yenkoba p. Rnmbhaji ... ... ... ... ... 28 
 
 Yode P. Cloud . ... ... ... ... ... 136 
 
 York P. Brown ... ... ... ... ... 246 
 
 York Buildings Co. p. Mackenzie ... ... ... 261, 289, 290 
 
 Young P. Martin ... ... ... ... ... 79 
 
 v. Peachy ... ... 90 
 
 Younger p. \Velhain ... ... ... ... ... 241 
 
 Younghusband P. Gisborne ... ... ... 42,272 
 
TABLE OF ACTS. 
 
 XIX of 1841,s. 7 
 i of 1845, s. 21 
 
 VII of 1849 
 II of 18iO 
 
 XXXI of 1854,s. 17 
 XXI of 1855, ss. 2, 3 
 LVof 1858 
 
 ' ss. 11, 25 
 
 VIII of 1859, s. 260 
 XXI of 1860 
 
 - ss. 1,2, 3 
 
 - ss. 4, 5, 6, 7, 8 
 ss. 9, 10, 11, 12 
 
 - ss. 13, 14 ... 
 
 - ss. 15, 16, 17, 18, 19 ... 
 
 - s. 20 
 
 XLVof 1860. s. 62 
 
 , ss. 126, 127, 169 
 
 -, ss. 405, 409 
 
 XX of 1863 
 
 XVII of 1864 
 
 - ss, 1, 2, 3 
 
 - ss. 4, 5 
 
 - ss. 6, 7 
 
 - ss. 8, 9, 10, 11 
 
 - ss. 12, 13, 14 
 . s. 15 
 
 - ss. 16, 17, 18 
 
 - ss. 19, 20,21, 22 
 -. ss. 23, 24 
 
 - s. 1 
 
 - 8. 2 
 
 - ss. 3, 4, 5, 6, 7 
 
 - s. 8 
 
 - s. 9 
 
 - s. 10 
 
 - s. 11 
 
 - 88. 12, 13 ... 
 
 - s. 14 
 
 - 88. 15, 16 ... 
 
 - ss. 17. 18, 19 
 
 - ss. 20, 21, 22 
 
 - ss. 23, 24, 25, 26 
 ss.. 27, 28, 29, 30 
 
 - ss. 31, 32 ... 
 
 Page 
 
 ... 249 
 
 ... 103 
 
 ... 250 
 
 ... 250 
 
 ... 229 
 
 ... 2-28 
 
 ... 2-27 
 
 ... 249 
 
 ... 228 
 
 102, 103 
 
 354, 391 
 
 ... 391 
 
 ... 392 
 
 ... 393 
 
 ... 391 
 
 ... 395 
 
 ... 396 
 
 ... 126 
 
 ... 127 
 
 15, 183 
 
 16, 387, 396 
 
 ... 397 
 
 ... 398 
 
 .. 399 
 
 ... 400 
 
 ... 401 
 
 ... 402 
 
 ... 404 
 
 ... 406 
 
 ... 407 
 
 ... 407 
 
 332, 407 
 
 ... 407 
 
 408 
 
 332, 365, 409 
 ... 409 
 332, 365, 409 
 250, 409 
 ... 410 
 164,410 
 ... 410 
 ... 411 
 .. 412 
 ... 413 
 ... 414 
 415 
 
TABLE OF ACTS. 
 
 Page 
 
 XX of 1864, ss. 10, 25 ... ... ... 2'28 
 
 X of 1865 ... ... ... ... ... 131 
 
 , s. 4 ... ... ... ... 125,324 
 
 ,ss.46 ... ... ... ... ... 125 
 
 ,s. 101 ... ... ... ... ... 39 
 
 ,s.l05 ... ... ... ... 352,371 
 
 ,ss.!87,190 ... ... ... ... ... 342 
 
 ,8.229 ... ... ... ... ... 121 
 
 -, ss. 316, 326 ... ... ... ... ... 123 
 
 IV of 1866, s 3 ... ... ... ... - 418 
 
 XXVII of 1866 ... ... 15,3^5,415 
 
 , ss. 1,2 ... ... ... ... ... 415 
 
 -, ss. 3, 4 ... ... ... ... ... 418 
 
 , ss. 5, 6 ... ... ... ... ... 419 
 
 ,ss.7,8,9 ... ... ... ... 420 
 
 -, ss. 10, 11 ... 421 
 
 -,ss.l2,13,14 ... ... .. ... 422 
 
 -,ss. 15, 16, 17 ... ... ... ... 423 
 
 -, ss. 18, 19 ... ... ... 424 
 
 -, s. 20 ... ... ... ... ... 425 
 
 -, s. 21 ... ... ... ... ... 426 
 
 -, ss. 22, 23 ... ... ... ... 427 
 
 ,ss.24,25 ... ... ... ... 428 
 
 ,83.26,27... ... ... ... ... 429 
 
 ,ss.28,29... ... ... ... ... 430 
 
 ,88.30,31,32 ... ... ... ... 431 
 
 ... 432 
 ... 433 
 16,434 
 
 ,s.36 ... ... ... ... ... 436 
 
 -, ss. 37, 38, 39 ... ... ... ... 437 
 
 -, s. 40 ... ... ... ... ... 438 
 
 ,88.41,42,43,44 ... ... ... ... 439 
 
 ,8.45 ... ... ... ... 367,440 
 
 ,8.46 ... ... ... ... ... 440 
 
 , ss. 47, 48, 49 ... ... ... ... 441 
 
 , ss. 50, 51 ... ... ... ... 442 
 
 ,88.52,53,54 ... ... ... ... 443 
 
 XXVIlIofl866 ... ... 15,443 
 
 , s. 1 ... 443 
 
 ,s.2 ... ... .... ... 223,444 
 
 -,s.3 ... ... ... ... 225,444 
 
 -,s.4 ... ... ... ... 225,445 
 
 -,s.5 ... ... ... ... 164,445 
 
 -,s.6 ... 445 
 
 -,88.7,8,9 ... ... ... .. 446 
 
 -,ss.lO,ll,12 ... ... ... ... 447 
 
 -,88.13,14,15,16,17 ... ... ... 448 
 
 -,88.18,19,20 ... ... ... ... 449 
 
 ,88.21,22,23 ... ... ... ... 450 
 
 , ss. 24, 25 ... ... ... ... 451 
 
 , ss. 26, 27, 28 .. ... ... ... 452 
 
 , ss. 29, 30, 31 453 
 
TABLE OF ACTS. IxV 
 
 Page 
 
 XXVIII of 1866, s. 32 226,453 
 
 ,s.33 ... ... ... ... 227,454 
 
 ,s.34 ... ... ... ... 333,454 
 
 ... 456 
 2-29, 456 
 210,456 
 ... 457 
 
 ,8.39 ... ... ... ... 208,457 
 
 , ss. 40, 41 ... ... ... ... 458 
 
 -,s.42 ... 459 
 
 -,s.43 ... ... ... ... 218,459 
 
 -, ss. 44, 45, 46 ... ... ... ... 460 
 
 I of 1869, ss. 17, 20 ... ... ... ... ... 371 
 
 JV of 1870 (B. C.), s. 86 ... ... ... ... ... 228 
 
 XI of 1870 ... ... ... 131 
 
 XIV of 1*70 ... ... ... 415 
 
 XXI of 1870 ... ... ... ... ... 40 
 
 ,s.7 ... ... ... ... ... 34-2 
 
 IX of 1871, s. 10 ... ... ... ... ... 304 
 
 1 of 1872, as. 107, 108 ... ... ... ... ... 177 
 
 , s. Ill ... ... ... ... ... Ill 
 
 ,s.H6 ... ... ... ... ... 100 
 
 IX of 1872, s. 11 ... ... 124,127 
 
 ,8.12 ... ... ... ... ... 124 
 
 ,88.15,22 ... ... ... ... 111,271 
 
 ,8.23 ... ... ... ... ..33,38 
 
 , ss . 57, 58 ... ... ... ... ... 49 
 
 ,8.157 ... ... ... ... "... 319 
 
 II of 1874, ss. 50, 52, 53, 55 ... ... ... ... 250 
 
 III of 1874, ss. 2, 4 ... ... ... ... ... 125 
 
 XIII of 1874 ... ... ... ... ... 228 
 
 lof 1877 ... ... ... ... ... 17 
 
 , s. 2, ill. (Z>) ... ... ... ... ... Ill 
 
 , ss. 3, 10 ... ... ... ... ... 15 
 
 ,8.10 ... ... ... ... ... 137 
 
 ,s.ll ... ... ... ... ... 156 
 
 , s. 12, cl. (a) ... ... ... ... ... 271 
 
 , s. 27 ... ... ... ... ... 343 
 
 , s. 54 ... ... ... ... ... 287 
 
 X of 1877, ch. viii ... ... ... ... ... 275 
 
 xxxiv ... ... ... ... ... 182 
 
 , s. 10 ... ... ... ... ... 129 
 
 , ss. 15, 16 ... ... ... ... ... 26 
 
 , ss. 26, 27, 28 ... ... ... ... ... 341 
 
 , ss. 30, 438, 439 ... ... ... ... 345 
 
 ,8.89 ... ... ... ... ... 28 
 
 , s. Ill, ill. (a) ... ... ... ... ... 276 
 
 ,s.317 ... ... ... ... ... 102 
 
 ,s.373 ... ... ... ... ... 233 
 
 , s. 430 ... .... ... ... ... 129 
 
 ,s.437 ... ... ... ... 140,342 
 
 ,ss.437,439,539 ... ... ... ... 15 
 
 -, s.539 ... ... ... ... 130,358,363 
 
Ixvi TABLE OF ACTS. 
 
 Page 
 
 X of 1877, s. 638 ... ... ... ... ... 27 
 
 XV of 1877, s. 10 ... ... 15, 186, 187, 260, 304, 305 
 
 , s. 18 ... ... ... ... ... 305 
 
 , s. 20 ... ... ... ... ... 241 
 
 , arts. 98, 100, 133, 134 ... .'.. 15, 304, 305 
 
 , arts. 120, 131 ... ... ... ... 377 
 
 I of 1879, sclied. i, art. 60 ... ... ... ... 330 
 
 XII of 1879, s. 72 ... ... ... ... 140,342 
 
 I of 1880 ... ... ... ... 354,380,461 
 
 ... ... ... 461 
 
 ... ... ... ... 365,461 
 
 366,461 
 
 366,462 
 
 ... ... 366,426 
 
 ... ... ... ... ... 462 
 
 ... ... 463 
 
 V of 1881,8. 19 ... ... ... 121 
 
 s. 92, ill. (a) ... ... ... 222 
 
 ,s.H7 173,221 
 
 ,83.135,145 ... ... ... ... ... 123 
 
TABLE OF STATUTES. 
 
 Page 
 
 1 Ed. VI, c. 14 350 
 
 27 Hen. VIII, c. 10 ... 6, 350 
 
 13 Eliz., c. 5 54, 59, 92 
 
 27 Eliz., c. 4 66, 67, 69 
 
 30 Eliz., c. 18, s. 3 ... ... ... ... 66 
 
 43 Eliz., c. 4 ... ... ... ... 353 
 
 9 Geo. II, c. 36 ... ... ... ... 351 
 
 39 & 40 Geo. Ill, c. 98 ... ... ... ... 38 
 
 55 Geo. Ill, c. 160 ... ... ... ... 353 
 
 2 & 3 Will. IV, c. 115 353 
 
 5 & 6 Will. IV, c. 76 ... ... ... ... 124 
 
 8 & 9 Viet., c. 59, s. 2 ... ... ... ... 353 
 
 11 & 12 Viet., c. 21,8. 7 131,132 
 
 ,ss.9,24 ... ... ... ... 65 
 
 ,s.23 ... ... ... 132,278 
 
 13 & 14 Viet., c. 60 ... ... ... 417,418 
 
 s. 3, 4, 5 ... ... ... ... 419 
 
 , ss. 6, 7, 8 ... ... ... ... 420 
 
 -, ss. 9, 10 ... ... ... ... 421 
 
 -, ss. 11, 12 ... ... ... ... 422 
 
 -,88.13,14,15,16 ... ... ... 4-23 
 
 -, ss. 19, 20 ... ... ... ... 425 
 
 , s. 22 426 
 
 ,8.23 ... ... ... ... 427 
 
 , ss. 24, 25 ... ... ... ... 428 
 
 , ss. 26, 27 ... ... ... ... 429 
 
 , s. 29 ... ... 431 
 
 , ss. 30, 31 ... ... ... ... 433 
 
 , ss. 32, 33 ... ... ... ... 434 
 
 , s. 34 ... ... ... ... 436 
 
 , ss. 35, 36 ... ... ... ... 437 
 
 , ss. 37, 40 ... ... ... ... 438 
 
 , ss. 41, 42, 43 ... ... ... ... 439 
 
 , ss. 44, 45 ... ... ... ... 440 
 
 ., ss. 48, 49 ... .. ... ... 441 
 
 ss. 50, 52 ... ... ... ... 442 
 
 417 
 
 ... 432 
 
 424 
 
 ... 431 
 
 ... 430 
 
 ... 443 
 
 ... 441 
 
 8 & 19 Viet., c. 9l', s. 10 ... ... ... ... 418 
 
 19 & 20 Viet., c. 120, s. 41 ... ... ... ... 460 
 
 22 & 23 Viet., c. 35 ... ... ... ... 443 
 
Ixviii TABLE OF STATUTES. 
 
 Page 
 
 22 & 23 Viet., c. 35, s. 1 ... ... ... ... 449 
 
 , ss. 2, 3 ... ... ... ... 450 
 
 -, ss. 10> 12 ... .. ... ... 451 
 
 -, ss. 14, 15, 16 ... ... ... ... 452 
 
 -, ss. 19, 21,23 ... ... ... ... 453 
 
 -, s. 26 ... ... ... ... 457 
 
 -, s. 27 ... ... ... ... 458 
 
 -,s.28 ... ... ... ... 459 
 
 -, s. 29 ... ... ... ... 459 
 
 ,s.30 ... ... ... 218,460 
 
 31 ... ... ... ... 457 
 
 23 & 24 Viet., c. 145 ... ... ... ... 443 
 
 ,s.l ... ... ... ... 444 
 
 ,88.2,3,4,7 ... ... ... ... 445 
 
 , ss. 11, 12, 13, 14 ... ... ... 446 
 
 1 if? i *r tA.A.7 
 
 ', ss. 18 ? , 19, 20, 21, 22 .'" ... ... 448 
 
 , ss. 23, 24 ... ... ... ... 449 
 
 , ss. 25, 26 ... ... ... ... 454 
 
 ,8.27 ... ... ... ... 455 
 
 , ss. 28, 29 ... ... ... ... 456 
 
 -, s. 30 ... ... ... ... 457 
 
 -,s. 34 ... ... ... ... 460 
 
 24 & 25 Viet., c. 96, ss. 80, 86 ... ... ... ... 183 
 
 , c. 104 ... 27,416 
 
 33 Viet., c. 14 ... 129 
 
LECTURE I. 
 
 ORIGIN OF TRUSTS IN ENGLAND. 
 t3CI" 
 
 Origin of Trusts in England Tenures Feudal system Sub-infeudation 
 Estates of freehold Alienation of estates Gifts to religious houses 
 Mortmain Uses Statute of Uses Object of Statute Legal and 
 equitable estates Trusts among Hindus Krishnaramini Dasi's case 
 Tagore case Trusts for creditors Family religious trusts Legislation in 
 India Arrangement of subject Definition of trust Must be confidence 
 Merger Definition of terms Kinds of trust Simple trust Special 
 trust Ministerial and discretionary trust Mixture of trust and power 
 Lawful and unlawful trusts Public and private trusts Executed and 
 executory trusts Austen e. Taylor Jervoise v. The Duke of Northum- 
 berland Coape v. Arnold Executory trusts in marriage articles and 
 wills Distinction between them Marriage articles Blackburn v. Stables 
 
 Jervoise o. Duke of Northumberland Will Cy pres Intention 
 General Rules Subject-matter of trust Trusts against policy of law 
 Title of honor Trusts of immoveable property without the jurisdiction of 
 a Court Penn v. Lord Baltimore Act X of 177, ss. 15, 16 High 
 Courts' Charter Letters Patent Suits for land Foundation of juris- 
 diction Court of Equity acts in personam and not in rem Land may be in 
 a foreign country Angus v. Angus Lord Cranstown v. Johnston Privity 
 
 Foundation of jurisdiction Injunction restraining proceeding by other 
 Courts Trusts of moveable property abroad Object must be lawful 
 General rule for ascertaining whether trust lawful Indian Contract Act, 
 s. 23 Trusts contrary to policy of law or founded upon illegal contract 
 void Assignment of half pay Trusts for future illegitimate children 
 Trust for illegitimate children in being, or en venire, sa mere Trust forbidden 
 by law Trusts postponing enjoyment of property or restraining alienation 
 Accumulation Perpetuities among Hindus Restraint on alienation 
 Condition restraining alienation after absolute gift Insolvency Trust to 
 cease on bankruptcy or insolvency Trust to cease on happening of parti- 
 cular event Clauses of forfeiture construed strictly Trust for immoral 
 purposes Failure of trust Illegal purpose failing Must be a cestui que 
 trust Trust partly lawful and partly Unlawful Trust of immoveable 
 property in foreign country. 
 
 THE Law of Trusts as administered in India closely re- Origin of 
 sembles the English law in the general principles applied, J 8 ,!^ 11 
 although the system upon which it is administered is 
 different ; I propose, therefore, in the first place, to describe 
 the origin and growth of trusts in England. In order 
 to do this, it is necessary to go back to the time of the 
 Norman conquest, and to consider shortly the tenures by 
 
 1 
 
2 FEUDAL SYSTKM". 
 
 LECTURE which lands in England are held. At the time of the con- 
 quest, the greater part of the land was confiscated, and was 
 granted by the conqueror to his followers according to 
 Feudal what is known as the feudal system. The lands were held 
 system. j^y ^he grantees from the sovereign, upon condition that 
 they should, when called upon, perform certain military 
 duties. The sovereign was considered to be the owner of 
 the granted lands, and was called the lord paramount, while 
 the services to be rendered were regarded as incident, or 
 annexed to the ownership of the land ; in fact, the rent to 
 be paid for it. 1 At first the interest of the grantee in the 
 lands granted did not extend beyond his own life. In 
 course of time it gradually improved in stability and 
 acquired an hereditary character, so much so, that the 
 grantee, considering himself as substantially the owner, 
 began to imitate the example of his sovereign by carving 
 out portions of his land, to be held of himself by some 
 other person, on terms and conditions similar to those of 
 Sub-infeu- the original grant. This method of creating estates in the 
 dation. granted land was termed sub-infeudation. A continued 
 chain of successive dependencies was thus established, con- 
 necting each stipendiary or vassal with his immediate 
 superior or lord. 2 The grant, as we have seen, did not 
 originally extend beyond the life of the first vassal ; but, in 
 process of time, grants were made to a man and his sons, 
 and then to a man and his heirs. This method of holding 
 lands gave rise to the fundamental maxim, which still pre- 
 vails as regards land in England, that all land belonging to 
 any subject in the realm is holden of some superior, and 
 either mediately or immediately of the sovereign. And as 
 all lands were holden, they were called tenements ; the 
 possessors, tenants ; and the manner of their possession, a 
 tenure. 3 There is no such thing, according to the English 
 law, as the absolute ownership of land. All that a subject 
 can have, is an estate in the land. 
 
 Estates of The only estates with which we need concern our- 
 selves, are those which are called freehold estates, because 
 they were the only estates which a free man would 
 hold, namely, estates for life, in tail, and in fee-simple. If 
 land was granted to a man simply without more, that gave 
 him an estate for his life only, and on his death the land 
 escheated to the grantor. If land was granted to a man 
 
 1 Williams on Real Property, 2. * 1 Bl. Com., 17.j. 3 Ibid, 18G. 
 
ALIENATION OF ESTATES. 3 
 
 and the heirs of his body, he was said to have an estate LECTURE 
 tail, which descended on his death to his lawful issue, 
 children, grandchildren, and more remote descendants, 
 so long as his posterity endured. If the first owner, or 
 any descendant who had succeeded to the estate, died 
 without children, the estate escheated to the grantor or his 
 heir. If land was granted to a man and his heirs, he had an 
 estate in fee-simple. This estate descended on his death to 
 his heirs. If he died without children, the estate went 
 to his collateral relations, and only escheated on the failure 
 of all persons who could possibly claim through him. 1 All 
 these estates were originally inalienable either during the 
 lifetime of the holder, unless with the consent of the lord, or 
 by will. It would be foreign to the purpose of these 
 Lectures to trace the steps by which the right of alienation 
 was acquired, but I will endeavour shortly to explain the 
 means used for the transfer of an estate from one per- 
 son to another. 
 
 The most ancient form of conveyance, was a feoffment Alienation 
 with livery of seisin. The feudal doctrine that all estates of estates - 
 in land are holden of some lord, necessarily implies that 
 all lands must always have some feudal holder or tenant. 
 This feudal tenant is the freeholder, or holder of the free- 
 hold. He has the feudal possession, called the seisin ; and 
 so long as he is seised, nobody else can be. The freehold is 
 said to be in him, and until it is taken out of him and 
 given to some other, the land itself is regarded as in his 
 custody or possession. A feoffment with livery of seisin, 
 was the gift of an estate in the land, accompanied with 
 lively, that is, delivery of the seisin or feudal possession. 
 At the time of the gift, the nature of the estate to be taken 
 by the person to whom it was given, or feoffee, was marked 
 out or limited. 2 Before the reign of Henry VIII, a simple 
 gift of lands to a man and his heirs, accompanied by livery 
 of seisin, was all that was necessary to convey to that per- 
 son an estate in fee-simple in the lands. The Courts of Law 
 did not deem any consideration necessary ; but if a man 
 voluntarily gave lands to another, and put him in posses- 
 sion of them, they held the gift to be complete and irrevo- 
 cable, just as a gift of money or goods, made without any 
 consideration, is, and has ever been, quite beyond the 
 power of the giver to retract, if accompanied by delivery 
 
 1 See Williams on Real Property. Cham. I. II. III. 
 * Ibid. loG. 
 
MORTMAIN. 
 
 (lifts to 
 religious 
 houses. 
 
 LECTURE of possession. In law, therefore, the person to whom a 
 gift of lands was made and seisin delivered, was considered 
 thenceforth to be the true owner of the lands, 1 and his 
 estate was known as the legal estate. We have now to 
 consider how another class of estates, known to English 
 law as equitable estates, arose. 
 
 After the power of alienation had been acquired, it be- 
 came a common thing for the grantees of estates to convey 
 them to religious houses. The members of these houses 
 were unable, by reason of their profession, to perform the 
 military services required by the feudal law ; they obtained 
 great quantities of land, and an undue proportion of wealth 
 and power. J As religious houses fell under the legal des- 
 cription of corporations, who possess the character of perpe- 
 tuity, the lord was deprived of the benefits he derived 
 from escheats. Lands belonging to such bodies were con- 
 Mortmain, sequently said to be in tnortud manu, or in mortmain, 
 because they produced none of the advantages to the 
 feudal lords, which lands held by individuals did. In 
 order to check conveyances to religious houses and cor- 
 porations, various Statutes, called the Statutes of Mortmain, 
 were passed, prohibiting corporations from purchasing land, 
 unless a license in mortmain was procured from the lord. 
 In order to evade these Statutes, the following device was 
 resorted to by the ecclesiastical bodies. The grant, instead 
 of being made direct to the religious house, was made 
 Uses. to some person to the use of the religious house. A 
 gift of this kind conferred no estate or interest whatever 
 in contemplation of law on those whose benefit was designed, 
 for the principle of feudal tenure was, to look no further 
 than to the actual and ostensible tenant, and to consider 
 him alone as the proprietor. 2 The use, therefore, declared 
 upon such a gift, being in the view of the ordinary Courts 
 of Justice a nonentity, escaped the operation of the Statutes 
 of Mortmain. 3 " The laity were not long behind in re- 
 sorting to this contrivance as regards both land and chat- 
 tels, to enable them to defeat creditors of their executions 
 and for other fraudulent purposes, frequently, it seems, 
 selecting some person as their feoffee, who from his station 
 and power might aid them in setting the law at defiance. 
 Subsequently, conveyances to uses were put in practice by 
 the laity for less objectionable purposes. During the civil 
 
 1 Williams on Real Property, 151. 2 1 Cru. Dig.. 402. 3 1 Bl. Com., 357. 
 
USES. 5 
 
 wars occasioned by the claims of the rival Houses of York LECTURE 
 and Lancaster, every person who could be accused of having 
 sided with the defeated party, was liable to attainder, and 
 by consequence, to the confiscation of his estates. To avoid 
 this hazard, secret conveyances to uses, or upon special 
 trusts, appear to have been resorted to by persons of every 
 rank and condition. In the reign of Edward IV, at which 
 time this mode of conveyance had become fully established, 
 the Judges expressly held, that a use was not forfeitable 
 by attainder ; this would of course confirm the practice." 1 
 When a feoffment was made to uses in this way, the legal 
 estate was in the feoffee. He filled the possession, did the 
 feudal duties, and was, in the eye of the law, the tenant of 
 the fee. The person to whose use he was seised, called by 
 the law writers the cestui que use, had the beneficial pro- 
 perty in the lands, had a right to the profits, and a right 
 to call upon the feoffee to convey the estate to him and to 
 defend it against strangers. This right at first depended 
 upon the conscience of the feoffee ; if he withheld the pro- 
 fits from the cestui que use, or refused to convey the estate 
 as he directed, the cestui qui use was without remedy. To 
 redress this grievance, the writ of subpoena was devised, or 
 rather adopted from the Common Law Courts, by the clerical 
 Chancellors, to oblige the feoffee to attend in Court and dis- 
 close his trust ; and then the Court compelled him to execute 
 it. This writ is said to have been first issued by John Wal- 
 tham, Bishop of Salisbury, who was Lord Keeper in the 
 reign of Richard the Second. " No sooner was this protection 
 extended than half the lands in the kingdom became vested 
 in feoffees to uses. Thus, in the words of an old counsellor, 
 the parents of the trust were Fraud and Fear, and a Court 
 of Conscience was the Nurse." 2 " The power assumed by 
 the clerical Chancellors in controlling the maxims and prin- 
 ciples of the Common Law, cannot be considered as short of 
 legislative ; for not only, in virtue of a law created for 
 private convenience and independent of the Common Law, 
 was the person legally entitled deprived of all the bene- 
 ficial incidents of property ; but a distinct title to the enjoy- 
 ment was introduced, not only unknown to, but at first 
 repudiated by, the law: the legal title indeed was not 
 directly affected, yet the legal owner was compelled to 
 exercise his legal rights, so as only to be subservient to 
 
 1 1 Spence's Eq. Jur. , 440. 2 Lewin's Introduction, 2. 
 
6 STATUTE OF USES. 
 
 LECTUBE the protection and enjoyment of this equitable interest : 
 * although by this means, as regarded the real owner of the 
 estate, the legal rights of third persons, including the Crown, 
 were defeated, which indeed was one of the palpable objects 
 for which trusts were introduced." l Uses were not consi- 
 dered as issuing out of or annexed to the land, as a rent, a 
 condition or a right of common, but as a trust reposed in 
 the feoffee, that he should dispose of the lands at the dis- 
 cretion of the cestui que use, permit him to receive the rents, 
 and in all other respects have the beneficial property of the 
 lands. Thus, between the feoffee and cestui qui use, there was 
 a confidence in the person and privity in estate. 2 But this 
 was only as between the feoffee and the cestui que use. To 
 all other persons the feoffee was as much the real owner of 
 the fee as if he did not hold it to the use of another. He 
 performed the feudal duties, his wife was entitled to dower, 
 his infant heir was in wardship to the lord, and upon attain- 
 der the estate was forfeited. 3 The doctrine of uses, as regu- 
 lated and settled by the Court of Chancery, was so applied 
 that it became productive of serious grievances. Persons 
 who had a claim to the lands could not find out the legal 
 tenant against whom it was necessary to proceed. Hus- 
 bands were deprived of their curtesy, and widows of their 
 dower, creditors were defrauded, purchasers for valuable 
 consideration were frequently defeated, and the king and 
 other feudal lords were deprived of their tenures, and other 
 inconveniences attended the secrecy observed in making 
 conveyances to uses, by which the beneficial interest be- 
 longed to one person and the legal estate to another. 4 
 
 statute of To remedy these inconveniences, the Statute of Uses 5 
 was passed by which the possession was divested out of the 
 persons seised to the use, and transferred to the cestui que 
 use. By this Statute it was enacted, that where any per- 
 son or persons shall stand seised of any lands or other 
 hereditaments to the use, confidence, or trust of any other 
 person or persons, the persons that have any such use, con- 
 fidence, or trust ( by which was meant the persons benefi- 
 cially entitled) shall be deemed in lawful seisin and posses- 
 
 1 Spence's Eq. Jur., 436. 
 
 2 Chudleigh's case, 1 Rep., 120 ; Burgess v. Wheate, 1 W. Bl., 123. 
 
 3 Co. Lit., 271. 
 
 4 See Watkins on Conveyancing. 287 ; Sandars on Uses, 1 62. 
 
 5 27 Hen. VIII. c. 10, 
 
OBJECT OF STATUTE. 7 
 
 sion of the same lands and hereditaments for such estates LECTURE 
 as they have in the use, trust, or confidence. 
 
 The modern doctrine of uses, as distinguished from trusts, 
 was introduced by this Statute. Uses, therefore, in the 
 modern acceptation of the word, are such limitations of 
 lands and other hereditaments as are executed by the 
 Statute and confer on the beneficial owner the legal estate ; 
 and trusts are similar to what uses were at Common Law 
 before the passing of the Statute. Uses, under the Statute, 
 were subject to the jurisdiction of the Courts of Common 
 Law, and trusts to that of the Courts of Chancery or 
 Equity. 1 
 
 The object of this Statute was to abolish the jurisdiction Object of 
 of the Court of Chancery over landed estates by giving actual Statute - 
 possession at law to every person beneficially entitled in 
 equity. But the Court of Chancery recovered its power in 
 the following manner. Soon after the passing of the Statute 
 of Uses, a doctrine was laid down, that there could not be a 
 use upon a use. For instance, suppose a feoffment had 
 been made to A and his heirs, to the use of B and his heirs, 
 to the use of C and his heirs, the doctrine was, that the use 
 to C and his heirs was a use upon a use, and was, therefore, 
 not affected by the Statute of Uses, which could only execute 
 or operate on the use to A and his heirs. So that B, and 
 not C, became entitled under such a feoflment to an estate 
 in fee-simple in the lands comprised in the feoffment. This 
 gave the Court of Chancery an opportunity for interfering. 
 It was manifestly inequitable that C, the party to whom 
 the use was last declared, should be deprived of the estate 
 which was intended solely for his benefit ; the Courts of 
 Chancery, therefore, interposed on his behalf, and constrained 
 the party to whom the law had given the estate, to hold in 
 trust for him to whom the use was last declared. So that 
 whenever it is wished to vest a freehold estate in one per- 
 son as trustee for another, the conveyance is made unto the 
 trustee or some other person and his heirs, to the use of the 
 trustee and his heirs, in trust for the party intended to be 
 benefited (called cestui que trust} and his heirs. An estate in 
 fee-simple is thus vested in the trustee by force of the Statute 
 of Uses, and the entire beneficial interest is given over to the 
 cestui que trust by the Court of Chancery. The estate in fee- 
 simple which is vested in the trustee is called the legal estate, 
 
 1 Watkins on Conveyancing. 288. 
 
TRUSTS AMONG HINDUS. 
 
 LECTURE 
 I. 
 
 Legal and 
 
 equitable 
 
 estates. 
 
 Trusts 
 among 
 Hindus. 
 
 Krishnara- 
 mini 
 case. 
 
 being an estate to which the trustee is entitled only in the 
 contemplation of a Court of Law, as distinguished from 
 equity. The interest of the cestui que ti*ust is called an 
 equitable estate, being an estate to which he is entitled 
 only in the contemplation of the Court of Chancery which 
 administers equity. 1 The cestui que trust is the benefi- 
 cial owner of the property. The trustee, by virtue of his 
 legal estate, has the right' and power to receive the rents 
 and profits ; but the cestui que trust is able, by virtue of 
 his estate, in equity, at any time, to oblige his trustee to come 
 to an account and hand over the whole of the proceeds. 1 
 The general idea of a use or trust answered more to the 
 fidei commissum than the usus fructus of the civil law, 
 which latter was the temporary right of using a thing with- 
 out having the ultimate property or full dominion of the 
 substance ; but the fidei commissum, which usually was 
 created by will, was the disposal of an inheritance to one, 
 in confidence, that he should convey it, or dispose of the 
 profits, at the will of another. The right of the latter was 
 originally considered in the Roman law as jus precarium, 
 that is, one for which the remedy was only by entreaty or 
 request ; but by subsequent institution, it acquired a differ- 
 ent character, it became jus fiduciarium, and entitled to 
 a remedy from a Court of Justice, and it was the business 
 of a particular magistrate, the praetor fidei commissarius, 
 to enforce the observance of these confidences. 
 
 We see, therefore, that, according to the English law, there 
 may be two persons holding different estates in the same 
 property. Both are entitled to convey their estates, both 
 are entitled to the rents and profits : one, the legal owner, to 
 receive them ; the other, the equitable owner, to enjoy them. 
 This concurrent existence of two systems of jurisprudence is 
 known, I believe, only to the English law, and led to doubts 
 as to whether trusts could be created by Hindus. " The 
 Hindu law," said Peacock, C. J., 2 " so far as I am acquaint- 
 ed with it, makes no provision for trusts. There is no- 
 thing in the Hindu law at all analogous either to trusts 
 of the English law or to the fidei commissa of the Roman 
 law, which were probably the origin of trusts in the English 
 law." In S. M. Krishnaramini Dasi v. Ananda Krishna 
 
 1 Williams on Real Property, 157. 
 
 2 Kumara Asima Krishna Deb i: Kumara Kumara Krishna Deb, 
 2 B. L. R., O. C., 36. 
 
KRISHXARAM1NI DASl's CASE. 9 
 
 Bose, 1 Markby, J., quoting the above case, decided, that trusts LECTURE 
 could not be created by Hindus. His Lordship said, that 
 there was hot the least ground for supposing that anything 
 like the English law of trusts existed in Hindu law, that is 
 to say, a system according to which property subject to a 
 trust has to be viewed under a double aspect, that of 
 the trustee on the one hand, who is declared by law to be 
 the absolute and uncontrolled owner; and the cestui que 
 trust on the other, who has a right in equity to interfere 
 in the ownership and compel the trustee to abandon all 
 or nearly all his rights in his (the cestui que trust's) favour. 
 " There is not," continued his Lordship, " a trace of it in 
 any passage of any work on Hindu law that I have seen. 
 There is not an indication of it in the habits of the people, 
 and so far from the English system of trusts resting on 
 principles of jurisprudence, which, though dormant, may 
 be considered as universally present, it is undoubtedly 
 one of the most anomalous institutions in the whole his- 
 tory of law one that could never have possibly been con- 
 ceived d priori, or worked out from any general principle, 
 and is distinctly the product of our own time." On appeal, 
 however, 2 Peacock, C. J., explained the passage from his 
 judgment cited above, saying, " I did not say, nor did I 
 intend to say, that a devise upon trust for a purpose 
 which might be legally carried into effect without the in- 
 tervention of trustees would necessarily be void. There are 
 many cases in which trusts have been enforced against 
 Hindus both by the Courts in this country and by Her 
 Majesty in Council upon appeal." Maepherson, J., said in 
 p. 284 : " I think that, for various reasons, because there 
 is nothing in Hindu law which is repugnant to, or inconsist- 
 ent with, the idea of trusts, because trusts are not un- 
 known to the Hindu law, and because trusts, as among 
 Hindus, have been recognized and administered for the last 
 century almost, by this Court and the late Supreme Court, 
 we are bound so to recognize trusts and to give effect 
 to them. I think that, both by Hindu law, and the practice 
 which has always prevailed in our Courts, a Hindu may 
 legally deal with his property so as to create a trust a 
 relation in many respects similar to, although not neces- 
 sarily identical with, that known in English law as the 
 relation of trustee and cestui que tnist. I concede that 
 
 1 4 B. L. R., 0. C., 231. Ibid, 278. 
 
 2 
 
10 KRISIIXARAMTXI DASl's CASE. 
 
 LEPTURE trusts, in the strict sense in which an English lawyer 
 uses the term, that is to say, trusts, to the existence of 
 which a ' legal ' estate and an ' equitable ' estate, wholly 
 separate from and independent of each other, are neces- 
 saiy, were unknown to the old Hindu law. There being 
 no distinction in Hindu law between legal and equitable 
 estates, it was, of course, impossible that there should be 
 anything corresponding to the two estates which are so 
 well known to the English law ; nevertheless, trusts, in 
 the wider sense of the term, were by no means unknown 
 in the tenets of Hindu law. I do not speak of the various 
 personal ordinary trusts, such as deposits and bailments, 
 which are expressly recognized and dealt with by all the 
 writers on Hindu law. The existence of such trusts does 
 not affect the present question, which relates solely to 
 special trusts, where the person to whom property is given 
 is bound to use it for the benefit of another, or to apply 
 it in a particular manner indicated, and not necessarily 
 for his own advantage. But in the case of endowments 
 for religious and charitable purposes, and gifts to idols, 
 there is no doubt that trusts have always been known. 
 It is said, that in a gift to an idol there is no trust, and 
 that there is an actual gift to the idol. It may be so in 
 words ; but, by whatever name it is called, it is a mere 
 setting apart of property which is to be held and used by 
 the manager for the time being, whether he be a priest or 
 whoever he may be, for the purpose, in the first instance, 
 of providing for the worship of the idol, or of carrying out 
 the religious or charitable objects of the original donor. 
 Practically, if a trust were not recognized in such cases by 
 Hindu law, no endowment or gift to an idol, or for religious 
 or charitable purposes, could have any permanent effect ; 
 while, as a matter of fact, we see such endowments are 
 very carefully preserved and are continued from generation 
 to generation. But granting, for the sake of argument, 
 that trusts are not expressly recognized by the old Hindu 
 law, that is not, in my opinion, any reason why we 
 should now r conclude that they are invalid. There is 
 nothing in Hindu law which forbids trusts, or is in any 
 way repugnant to them or inconsistent with their exist- 
 ence. The Hindu law system is not, and does not profess 
 to be, exhaustive ; on the contrary, it is a system in which 
 new customs and new propositions, not repugnant to the 
 old law, may be engrafted upon it from time to time, 
 
TAGORE CASE. H 
 
 according to circumstances and the progress of society. LKCTUUK 
 Fiduciary relations extend as the transactions and inter- 
 course between men extend. In all probability, trusts had, 
 by degrees, sprung into existence before we find any record 
 of them in our reports, just as I believe the custom of 
 making wills, although it may be of no very ancient 
 origin, prevailed among Hindus quite independently of 
 any decisions in the Courts, or any intervention of English 
 hi \vyers. The Supreme Court was called on to grant, and 
 did grant, probate of the will of a Hindu within a few 
 months after the Court was instituted ; and we find the 
 earliest legislation recognizing the wills of Hindus. There 
 is not necessarily anything anomalous or unnatural in the 
 constitution of trusts. The general position of trusts in 
 English law with these two absolutely separate estates, 
 the legal and the equitable, may be somewhat anomalous. 
 But this is the result of the peculiar procedure in England, 
 where the Court of Chancery has always been distinct 
 from the Courts of Common Law, and equitable rights are 
 kept wholly apart from legal. The peculiarity of the 
 English law of trusts arises out of specialities of proce- 
 dure. But questions of procedure cannot affect the ques- 
 tion, whether trusts are to exist, or whether Courts are to 
 give effect to them. I cannot see that the fact that this 
 Court is a Court of Equity as well as of law, and that our 
 procedure differs from that of the old Supreme Court, 
 creates any difficulty in giving effect to, er administering, 
 trusts, or in any way affects the question of substantive 
 law as to whether trusts can or cannot be created." In 
 Ganendra Mohan Tagore v. Upendra Mohan Tagore, 1 Tagore 
 Phear, J., said : " I confess, the broad assertion that trusts ta *- 
 are unknown to Hindu law took me somewhat by surprise. 
 There is, probably, no country in the world where fiduciary 
 relations exhibit themselves so extensively and in such 
 varied forms as in India, and possession of .dominion over 
 property, coupled with the obligation to use it, either 
 wholly or partially, for the benefit of others than the pos- 
 sessor is, I imagine, familiar to every Hindu. I need only 
 point to the cases of the mother acting as guardian of her 
 infant child, the Jcarta of a joint family managing on 
 behalf of minor or absent members, and the gomasta 
 buying, selling, and trading in his own name for the bene- 
 
 1 4 B. L. E..O. C.. 131. 
 
12 TAGORE CASE. 
 
 LECTURE fit of an unseen principal. If it be said that in these 
 * instances and others which might be mentioned, the guar- 
 dian, manager or gomasta is only an agent, and differs 
 from a trustee, in the strictest sense of the word, in this, 
 namely, that his powers are referable to the authority of 
 the person for whose benefit he acts, and not to any sort 
 of ownership in himself, I would add that, in my opinion, 
 this circumstance does not materially affect the essence of 
 the trust. No doubt, in this country, where Courts of 
 Justice are not distinguished by their functions into Courts 
 of Law and Courts of Equity, and where law and equity 
 are administered by the same tribunal, there is no occasion 
 for the creation and maintenance of an equitable estate in 
 property as separate from the legal estate. There is, con- 
 sequently, no such thing here as a bare legal estate in one 
 man descendible to heirs, side by side, with a beneficial 
 estate of inheritance, or a succession of beneficial estates 
 in the same property passing down another series of 
 persons. And this, I understand, is all that the Chief 
 Justice and Mr. Justice Markby intended to lay down 
 in the two judgments to which I have been referred. 1 But 
 
 1 think, that whether a man accepts property on the terms 
 of giving another person a specified benefit out of it, or 
 whether he undertakes to manage property on behalf of 
 another, our Courts will, in both cases alike, know how to 
 make him discharge the obligation under which he comes ; 
 and I do not hesitate to believe that it is in entire accord- 
 ance with the genius of the Hindu law that they should do so. 
 
 " Although our Courts know nothing of a legal title as dis- 
 tinguished from an equitable title, they can, I apprehend, 
 easily understand the predicament of property placed 
 under the dominion and control of one person, in order 
 that he may deal with and manage it for special purposes 
 involving the benefit of others. In few words, the non- 
 existence of the English equitable estate does not necessi- 
 tate the non-recognition of a trust. Except, perhaps, in 
 the very rudest state of civilization, trust-ownerships will, 
 most certainly, spring into being, and the interests of 
 society require that, within certain limits at least, effect 
 should be given to those by Courts of Justice." On appeal, 
 
 1 Kumara Asima Krishna Deb v. Kntnara Knmara Krishna Deb, 
 
 2 B. L. R.. O. C.. 11; and Srimati Krishnaramini Dasi r. Ananda 
 Krishna Bose. 4 B. L. R., 0. C., L'31. 
 
TAGORE CASE. 13 
 
 Peacock, C. J., referring to his judgment in Kumar a LECTURE 
 Asima Krishna Deb v. Kumara Kumara Krishna Deb, 1 
 said : " Although the Hindu law contains no express pro- 
 vision upon the subject of uses or trusts, I see nothing 
 contrary to the spirit and principles of the Hindu law 
 in a devise to trustees, giving a beneficial interest to a 
 person to whom it might have been given by a simple 
 devise without the intervention of trustees . . . It is 
 too late to contend that all gifts or alienations upon trust 
 are void, because the ancient Hindu law makes no express 
 mention of them. All that I laid down in the case of Asima 
 Krishna Debv. Kumara Kumara Krishna Deb 2 was, that a 
 devise for a purpose which would be void as a condition, 
 would be void in the shape of a trust." Finally, on appeal 
 to the Privy Council, it was argued that an estate to be 
 held in trust can have no existence by the Hindu law. 
 Their Lordships, however, said : ' The anomalous law 
 which has grown up in England of a legal estate which 
 is paramount in one set of Courts, and an equitable 
 ownership which is paramount in Courts of Equity, does 
 not exist in, and ought riot to be introduced into, Hindu law. 
 But it is obvious that property, whether moveable or 
 immoveable, must, for many purposes, be vested, more or 
 less absolutely, in some person or persons for the benefit of 
 other persons, and trusts of various kinds have been 
 recognized and acted on in India in many cases. Implied 
 trusts were recognized and established here in the case of 
 a benami purchase in Gopee Krist Gosain v. Gunga Persaud 
 Gosain ; 3 and in the cases of a provision for charity or other 
 beneficent objects, such as the professorship provided for 
 by the will under consideration, where no estate is conferred 
 upon the beneficiaries, and their interest is in the proceeds 
 of the property (to which no objection has been raised), 
 the creation of a trust is practically necessary. If the 
 intended effect of the argument upon this point was to 
 bring distinctly under the notice of their Lordships the 
 contention that, under the guise of an unnecessary trust 
 of inheritance, the testator could not indirectly create 
 beneficiary estates of a character unauthorized by law, 
 and which could not directly be given without the inter- 
 vention of the trust, their Lordships adopt the argument 
 upon the ground that a man cannot be allowed to do by 
 
 1 2 B. L. R.. 0. C.. 36. * 2 B. L. R.. 0. C.. 11. 3 6 Moo. I. A., 53. 
 
14 TAGOKE CASE. 
 
 LECTURE indirect means what is forbidden to be done directly, and 
 L that the trusts ca^ only be sustained to the extent and 
 for the purpose of giving effect to those beneficiary interests 
 which the law recognizes, and that, after the determina- 
 tion of those interests, the beneficial interest in the residue 
 of the property remains in the person who, but for the will, 
 would be lawfully entitled thereto. Subject to this quali- 
 fication, their Lordships are of opinion that the objection 
 fails." 
 
 Trusts for Trusts for the benefits of creditors are recognized here as 
 
 creditors, divesting the owner of the property conveyed of any 
 
 interest therein which can be the subject of execution 
 
 until the trusts have been carried out, 1 and there are many 
 
 Family instances of family religious, trusts 2 such as trusts for the 
 
 trusts 0118 support of a family idol and for the erection of temples 
 
 and bathing ghats. 3 And a trustee who misappropriates 
 
 trust funds may be compelled to compensate the cestui 
 
 que trust* 
 
 These cases show clearly that there is such a law as the 
 law of trusts existing in this country, and it is difficult 
 to imagine a state of civilization in which some system of 
 trusts should not exist. Without such a system it would 
 be impossible to provide for persons under disability, such 
 as infants and lunatics. It would be impossible to provide 
 for religious or charitable purposes, and for the many 
 instances in which one person obtains control over the 
 property of another, without, perhaps, actual force or 
 fraud, but under circumstances which make it inequitable 
 that he should retain such control. In this course of 
 lectures, I shall confine myself to those principles of the 
 law of trusts which must be applied equally to all cases in 
 which a person, whether governed by English, Hindu, or 
 Muhammadan law, is bound to apply property over which 
 he has control for the benefit of some other. With those 
 portions of the law of trusts which are founded upon the 
 distinction between legal and equitable estates, or upon 
 English Statutes, I shall not attempt to deal, such, for 
 
 1 Bamanji Manikji v. Naoroji Palanji, 1 Bom. H. C., 233 ; Bapuji 
 Auditram v. Umedbhai Hatheaing, 8 Bom. H. C., A. C., 245 ; and In, re 
 Dhanjibhai v. Kharsetji Ratnagar, ID Bom. H. C., 327. 
 
 2 Juggutrnoheenee Dosee v. Sokheemonee Dosee, 10 B. L. R., 19. 
 
 * Norton, Part II, p. 456 ; Purappa Vanalingam Chetti v. Nullasivan 
 Ghetti, 1 Mad., 415 ; and Venkatesa Nayudu v. Shrivan Shatgagopa 
 Swami, 7 Mad., 77. 
 
 4 Moonshee Buzzul Ruhim r. Shumsheroonnissa Begura, Suth., F. B.. 60. 
 
LEGISLATION IN INDIA. 15 
 
 instance, as questions relating to the legal estate taken by LECTUBE 
 the trustee, the devise of trust estates, and escheat. Nor J- 
 shall I attempt to deal with the class of cases relating to 
 powers under settlements, the duties of trustees for renewal 
 of leases, and other similar branches of the law which are 
 seldom applied in this country. 
 
 Although trusts are fully recognized in this country, there Legislation 
 has been very little legislation with regard to them. The " 
 Penal Code 1 contains 2 provisions for the punishment of 
 criminal breach of trust; the Specific Relief Act 3 defines 4 
 ' trust ' and ' trustee,' and provides 5 that a trustee may 
 sue for the possession of property to the beneficial 
 interest in which the person for whom he is trustee is 
 entitled ; the Civil Procedure Code 6 contains provisions 7 
 for the conduct of suits by and against trustees, executors, 
 and administrators, and provisions 8 as to suits relating to 
 public charities ; the Limitation Act 9 provides 10 that no suit 
 against an express trustee or his legal representatives or 
 assigns shall be barred by any length of time, and contains 
 provisions 11 for the limitation of suits to make good 
 loss caused by the breach of trust of a person deceased, 
 for contribution against the estate of a person deceased, 
 against the purchaser of moveable property from a trustee, 
 and against the purchaser <>f land from a trustee. 
 With these exceptions the Indian Statute-Book is silent 
 on the subject so far as regards the bulk of the popu- 
 lation ; for the Statute of Frauds, ss. 7 to 11, relating 
 to declarations of trust, resulting trusts, transfer of 
 trusts, and to judgments of cestui que t)*ust, is in force only 
 in the Presidency-Towns. The provisions of Acts XXVII and 
 XXVIII of 1866, the Trustee Relief Acts, have always, 
 up to a very recent date, been applied only in cases where the 
 parties are European British subjects, as the Acts themselves 
 state that they shall only be extended to cases to which 
 English law is applicable. But it has been recently decid- 
 ed in Bombay, by West, J., in the case of In re Kahandas 
 Narrandas, that these provisions are applicable between 
 Hindus. The object of the proceedings was to obtain the 
 
 1 Act XLV of 1860. 7 Ss. 437, 439. 
 
 2 Ss. 405 4'.(. 8 S. 539. 
 
 1 I of 1877. XV of 1877. 
 
 4 S. 3. <> S. 10. 
 
 * S. 10. Expl. 1. " Sched. ii, arts. 98, 100, 133. 134. 
 
 Act X of 1877. '- I. L R.. 5 Bomb., 154. 
 
16 DEFINITION OF TRUST. 
 
 LECTURE appointment of a new trustee to a charity under s. 35 of 
 Act XXVII of 1866. It was admitted that this could l.e 
 done by the more expensive process of a regular suit, and 
 it was contended that the expression " cases to which Eng- 
 lish law is applicable " applies to all cases in which the 
 principles of English law have to be referred to, and that 
 as the administration of trusts in this country is governed 
 by the rules of the English Courts of Chancery, the 
 Act applied to the law to be followed, not merely to cases 
 where the parties are English. West, J., granted the appli- 
 cation, considering that English law was applicable if the 
 principles recognized by the English Equity Courts were 
 applicable. 
 
 Arrange- You are aware, no doubt, that, in the year 1879, 
 ineiuof a j-^ji codifying the law of Private Trusts was laid 
 before the Indian Law Commission. The object of that 
 bill was to codify the law relating to trusts in the 
 wider sense which I have described. It saved the rules of 
 Mahomedan law as to wuqf, and it left untouched religious 
 and charitable endowments established by Hindus and 
 Buddhists as being matters in which the Legislature could 
 not usefully interfere further or otherwise than has been 
 done by Act XX of 1863. This bill has not yet become 
 law. I think, however, that my best course in arranging 
 the subject of these Lectures is to follow the plan upon 
 which the bill is framed. I shall, therefore, commence by 
 defining a trust. I shall then consider the different kinds 
 of trusts; the creation of trusts ; the duties and liabilities of 
 trustees ; their rights and powers ; their disabilities ; the 
 rights and liabilities of the cestui que trust ; vacating the 
 office of trustee ; and the extinction of trusts. I shall also 
 consider the subject of religious and charitable trusts 
 among European British subjects, which is not dealt with 
 by the Act. And I shall also consider the law of trusts 
 as applicable to religious and charitable endowments 
 established by Hindus and Buddhists, and the rules of 
 Muhammadan law as to v.-v/jf. 
 
 Definition A trust may be defined as an obligation imposed upon 
 of trust. some person or persons having the ownership of property, 
 whether moveable or immoveable, to deal with such property 
 for the benefit of some other person or persons, or for 
 charitable purposes. Mr. Lewin adopts Lord Coke's defini- 
 tion of a use, the term by which, before the Statute of Uses, 
 a trust of lands was designated, and defines a trust to be 
 
REQUISITES OF TRUST. 17 
 
 " a confidence reposed in some other, not issuing out of the LECTUEE 
 land, but as a th.ng collateral, annexed in privity to the 
 estate of the land, and to tlie person touching the land, for 
 which cestui que trust has no remedy but by subpoena in 
 Chancery." But this definition is limited to trusts of lands 
 only, whereas trusts may be declared of almost every kind 
 of property. In the Specific Relief Act, I of 1877, the 
 word ' trust ' is defined " to include every species of express, 
 implied, or constructive ownership." 
 
 There must be a confidence reposed in the trustee. It is Must be 
 not necessary that the confidence should be expressly re- confidence - 
 posed by the author of the trust in the trustee, for it may 
 be raised by implication of law, as in the case of a construc- 
 tive trust which is raised by a Court of Equity " when- 
 ever a person clothed with a fiduciary character, gains 
 some personal advantage by availing himself of his situa- 
 tion as trustee ; for, as it is impossible that a trustee should 
 be allowed to make a profit by his office, it follows that so 
 soon as the advantage in question is shown to have been 
 acquired through the medium of a trust, the trustee, how- 
 ever good a legal title he may have, will be decreed in 
 equity to hold for the benefit of his cestui que trust :" l 
 as for example, when a trustee or executor renews a lease 
 in his own name, or where a factor, agent, partner or other 
 person in whom confidence is reposed, takes advantage of 
 such confidence to acquire a pecuniary benefit for himself, 
 in such cases he will be made to account to the person in 
 whose interest he was bound to act, and will have to re- 
 fund any profits he may have made, or make good any loss 
 caused by his acts. These cases I shall deal with at 
 greater length hereafter. 
 
 " Further, the trustee of the estate need not be actually 
 capable of confidence, for the capacity itself may be sup- 
 plied by legal fiction, as where the administration of the 
 trust is committed to a body corporate ; but a trust is a 
 confidence, as distinguished from jus in re and jus ad rem, 
 for it is neither a legal property nor a legal right to 
 property. 
 
 " A trust is a confidence reposed in some other ; not in 
 some other than the author of the trust, for a man may 
 convert himself into a trustee, but in some other than the 
 cestui que trust ; for, as a man cannot sue a subpoena 
 
 1 Lewin. 7th Ed., 160. 
 
18 
 
 KINDS OF TRUST. 
 
 LECTURE 
 I. 
 
 Merger. 
 
 Definition 
 of terms. 
 
 Kinds of 
 trust. 
 
 Simple 
 trust. 
 
 Special 
 trust. 
 
 Ministerial 
 and discre- 
 tionary 
 trust 
 
 against himself, he cannot be said to hold upon trust for 
 himself ; and if the trustee acquires the beneficial interest 
 in the trust property, the trust is extinguished ;" l or, in other 
 words, where the legal and equitable interests are co-exten- 
 sive and vested in the same person, the equitable merges in 
 the legal interest. 2 
 
 The person who reposes the confidence is called the 
 author of the trust ; the person who accepts the confidence 
 is called the trustee ; the person for whose benefit the 
 confidence is reposed and accepted is called the cestui que 
 trust, or beneficiary; the subject-matter of the trust is called 
 trust-property or trust-money ; and the instrument, if any, 
 by which the trust is declared, is called the instrument of 
 trust. These definitions I have taken from the draft code. 
 
 Having ascertained what is meant by a trust generally, I 
 now propose to consider the different kinds of trusts. The 
 most important division of trusts is into ' simple ' and 
 ' special ' trusts. 
 
 " The simple trust," says Mr. Lewin, 3 " is where property 
 is vested in one person upon trust for another, and the 
 nature of the trust, not being prescribed by the settlor, is 
 left to the construction of law. In this case cestui que 
 trust has jus habendi, or the right to be put in actual 
 possession of the property, and jus disponendi, or the right 
 to call upon the trustee to execute conveyances of the 
 legal estate as the cestui que trust directs." 
 
 " The special trust is where the machinery of a trustee is 
 introduced for the execution of some purpose particularly 
 pointed out, and the trustee is not, as before, a mere pas- 
 sive depositary of the estate, but is called upon to exert 
 himself actively in the execution of the settlor's intention ; 
 as where a conveyance is to trustees upon trust to sell for 
 payment of debts." 
 
 " Special trusts have again been subdivided into minis- 
 terial (or instrumental) and discretionary. The former, 
 such as demand no further exercise of reason or under- 
 standing than every intelligent agent must necessarily 
 employ ; the latter, such as cannot be duly administered 
 without the application of a certain degree of prudence 
 and judgment." 
 
 1 Lewin, 14. 
 
 2 Wade P. Pagret. 1 Bro. C. C., 363 ; Phillips r. Brydges, 3 Yes., 126. 
 
 3 7th Ed., p. 18. 
 
KINDS OF TRUST. 19 
 
 " A trust to convey an estate must be regarded as minis- LECTURE 
 terial ; for, provided the estate be vested in the cestui que 
 trust, it is perfectly immaterial to him by whom the con- 
 veyance is executed." 
 
 " A fund vested in trustees upon trust to distribute 
 among such charitable objects as the trustees shall think 
 fit, 1 is clearly a discretionary trust, for the selection of 
 the most deserving objects is a matter calling for serious 
 deliberation, and not to be determined upon without due 
 regard to the merits of the candidates, and all the particular 
 circumstances of the case." 
 
 " There is frequent mention in the books of a mixture Mixture of 
 of trust and power, 2 by which is meant, a trust of which tr u ^ and 
 the outline only is sketched by the settlor, while the 
 details are to be filled up by the good sense of the trustees. 
 The exercise of such a power is imperative, while the mode 
 and its execution is matter of judgment and discretion." 
 
 Trusts may also be divided into lawful and unlawful. Lawful 
 What trusts are unlawful I shall consider more fully when *" d UIllaw - 
 dealing with the creation of trusts. It is sufficient to 
 state now that all lawful trusts may be enforced by a 
 Court of Equity ; and, as a rule, it may be laid down that a 
 trust is lawful until the contrary is shown. Where a trust 
 is unlawful and fraudulent, a Court of Equity will remain 
 neutral, and will neither enforce the trust, nor relieve the 
 person creating it, 3 unless the illegal purpose fails to take 
 effect. 4 
 
 Again, trusts may be divided into public and private. Public and 
 Trusts for public purposes are such as are constituted for P rivate 
 the benefit either of the public at large or of some consi- 
 derable portion of it answering a particular description. 
 All charitable trusts come under the description of public 
 trusts. " Public purposes," said Lord liomilly, M. R., " are 
 such as mending or repairing the roads of a parish, sup- 
 plying water for the inhabitants of a parish, making or 
 repairing bridges over any stream or culvert that may be 
 
 1 Attorney-General r. Gleg, 1 Atk.. 356 ; Hibbard v. Lamb, Amb., 
 309; Cole r. Wade, 16 Ves., 27 ; and Gower v. Mainwaring. 2 Ves., a. 87. 
 
 2 Cole v. Wade, 16 Ves., 27 ; Gower v. Mainwaring. 2 Ves., 89. 
 
 3 Brackenbury v. Brackenbury, 2 J. and W., 391 ; Childers v. Childers, 
 1 DeG. and J.. 482. 
 
 1 Symes v. Hugbes, L. R.. 9 Eq.. 475. 
 
 * Dolan c. Macdermot, L. R., 5 Eq., 62 : affirmed on appeal, L. R., 
 3 Ch., 676. 
 
20 EXECUTED AND EXECUTORY TRUSTS. 
 
 LECTUBE required in a parish : all these are ' public purposes ' in the 
 ordinary sense of the term, and are distinguished from 
 ' charities ' in the shape of alms-giving, building alms- 
 houses, founding hospitals, and the like, and which are 
 more properly termed ' charities.' It is true that, in a legal 
 sense, they are all charities." A private trust, on the 
 other hand, is a trust created only for the benefit of cer- 
 tain individuals who must be ascertained within a limited 
 time. 
 
 Executed Finally, trusts may be divided into executed and executory. 
 
 eatery*" Where the trust is complete in itself, that is to say, when 
 
 trusts. the author of the trust has formally and finally declared 
 what interest in the trust-property is to be taken by the 
 cestui que trust, leaving nothing to the discretion of the 
 trustee, the trust is said to be an executed trust. But 
 where directions are given for the execution of some 
 future conveyance or settlement of trust-property, and the 
 particular limitations are not fully or accurately specified, 
 and the trust is, therefore, not complete in itself, but merely 
 contains heads or minutes for the disposition of property 
 which are to be carried into effect in a more formal manner 
 according to the intention to be collected from the instru- 
 ment, the trust is said to be executory. 1 The distinction be- 
 tween trusts executed and executory was questioned by Lord 
 Hardwicke in Bagshaw v. Spencer ; 2 but it has long been 
 firmly established as one of the settled rules of the Court 
 
 Austen v. o f Chancery. It was thus stated in Austen v. Taylor 3 
 by Lord Northington : " The words 'executory trust ' seem 
 to me to have no fixed signification. Lord King, in the 
 case of Papillon v. Voice* describes an executory trust to 
 be, where the party must come to the Court (the Court 
 of Chancery) to have the benefit of the will. But that is 
 the case of every trust, and I am very clear that this Court 
 cannot make a different construction on the limitation of 
 trust than Courts of Law could make on a limitation in a 
 will, for in both cases the intention shall take place. . . . 
 The true criterion is this ; whenever the assistance of the 
 trustees, which is ultimately the assistance of this Court, 
 is necessary to complete a limitation, in that case, the limit- 
 
 1 Egfrton /. Earl Brownlow. 4 H. L. C.. 210 ; Tatham i 1 . Yernon, 
 21> Beav.j (in |. 
 
 - -2 Atk.. r,77 : S. P., 1 Yes.. 142. 1.V2. 
 
 3 1 Eden. 306. 368. < 2 T. Wins.. 471. 
 
EXECUTED AND EXECUTORY TRUSTS. 21 
 
 ation in the will not being complete, that is sufficient LECTURE 
 evidence of the testator's intention, that the Court should 
 model the limitation. But where the trusts and limitations 
 are already expressly declared, the Court has no authority 
 to interfere and make them different from what they 
 would be at law." And in Jervoisev. The Duke of Northum- ThJn'uke* 
 berland, 1 Lord Eldon said : " Where there is an executory * Nonii- 
 trust, that is to say, where the testator has directed some- um ei 
 thing to be done, and has not himself, according to the 
 sense in which the Court uses these words, completed the 
 devise in question, the Court has been in the habit of look- 
 ing to see what was his intention ; and if what he has 
 done amounts to an imperfection, the Court inquires what 
 it is itself to do, and it will mould what remains to be done 
 so as to carry that intention into execution." 2 In Coape v. c oa pe r. 
 Arnold, 3 Lord Cranworth, L. C., said : " In a certain sense, Arnold, 
 and to some extent, all trusts are executory, i.e., in all 
 trusts the legal interest is in some person who is bound in 
 conscience, and so is compellable by this Court, to employ 
 that legal interest for the benefit of others. To this extent 
 his duties are executory. Where the subject-matter of the 
 trust is a real estate held by a trustee for the benefit of 
 others, and the trustee has no active duties to perform, 
 such as paying debts, raising portions, or the like, the 
 same rules which would have decided the rights of parties, 
 if the beneficial interest had been legal, will, in general, 
 prevail in deciding for whose benefit the trustee is to hold 
 the estate. The rule is, equity follows the law a rule 
 essential to the convenient enjoyment of property in this 
 country, where the artificial distinction of legal and equi- 
 table estates so extensively prevails." 
 
 The cases in which executory trusts usually arise are Executory 
 where articles are entered into previous to a marriage, the ^rrtalre 
 parties intending that a more formal document shall be drawn articles and 
 up afterwards to carry out the provisions which are indicated Wllls< 
 in the articles; or where a testator intends that his pro- 
 perty shall be settled in a particular way upon certain 
 persons, but does not in his will state precisely the nature 
 of the estate which he wishes to devise. In these cases the 
 Court is obliged to construe the instrument and to declare 
 
 1 1 3. and W.. 570. 
 
 2 See also Stanley r. Lennard, 1 Eden, 95 ; Wright v. Pearson, ib., 125. 
 
 3 1 DeG. M. and G., 585. 
 
22 
 
 MARRIAGE ARTICLES. 
 
 Distinction 
 
 between 
 
 them. 
 
 Marriage 
 
 articles. 
 
 Blackburn 
 v. Stables. 
 
 LECTURE such trusts as seem most accurately to carry out the inten- 
 l - tion of the author. 
 
 A material distinction has been recognized in equity 
 between an executory trust founded on marriage 
 articles, and one voluntarily created, as by will. In the 
 former case, the object of the settlement is usually to 
 provide for the issue of the marriage. Therefore, unless the 
 contrary clearly appear, equity presumes that it could not 
 have been the intention of the parties to put it in the power 
 of the parent to defeat the object of the settlement by 
 appropriating the whole estate ; and on this presumption 
 the articles will usually be decreed to be executed by 
 limitations in strict settlement. In Blackburn v. Stables, 1 
 Sir W. Grant, M. R., said : " I know of no difference be- 
 tween an executory trust in marriage articles and in a 
 will, except that the object and purpose of the former 
 furnish an indication of intention which must be wanting 
 in the latter. When the object is to make a provision by 
 the settlement of an estate for the issue of a marriage, it is 
 not to be presumed that the parties meant to put it in the 
 power of the father to defeat that purpose and to appropriate 
 the estate to himself. If, therefore, the agreement is to 
 limit an estate for life, with remainder to the heirs of the 
 body, the Court decrees a strict settlement in conformity 
 to the presumable intention ; but if a will directs a limita- 
 tion for life, with remainder to the heirs of the body, the 
 Court has no such ground for decreeing a strict settlement. 
 A testator gives arbitrarily what estate he thinks fit. There 
 is no presumption that he means one quantity of interest 
 rather than another; an estate for life rather than in tail 
 or in fee. The subject being mere bounty, the intended 
 extent of that bounty can be known only from the words 
 in which it is given ; but if it is to be clearly ascertained 
 from anything in the will, that the testator did not mean 
 to use the expressions which he has employed in their strict, 
 proper, technical sense, the Court, in decreeing such settle- 
 ment as he has directed, will depart from his words in 
 order to execute his intention; but the Court must necessarily 
 follow his words, unless he has himself shown that he did 
 not mean to use them in their proper sense ; and have 
 never said that merely because the direction was for an 
 entail, they would execute that by decreeing a strict settle- 
 
 1 2 V. & B., 369. 
 
WILL. 23 
 
 raent." And in Jervoise v. The Duke of Northumberland, 1 LECTURE 
 Lord Eldon said : " lu marriage articles, the object of such 
 settlement, the issue to be provided for, the intention to j ervoise Vt 
 provide for such issue, and in short, all the considerations The Duke 
 that belong peculiarly to them, afford primd facie evidence overland 
 of intent, which does not belong to executory trusts under 
 wills. But I take it according to all the decisions, allowing 
 for that an executory trust in a will is to be executed in 
 the same way." 2 In the case of a will, the Court endeavours 
 to carry out the intentions of the testator as apparent on will, 
 the will, and is not necessarily bound to give technical 
 words their strict signification ; and if, therefore, the direc- 
 tions of the testator as to the disposition of the trust-estate 
 show that he could not have intended the expressions to 
 have their strict technical operation, the Court, in decreeing 
 a settlement, will depart from the words in order to execute 
 the intent. 3 Where a testator directs his trustees to settle 
 or convey an estate without more, the Court is obliged to 
 interfere and to point out the estate to be taken by the 
 cestui que trust. But if a testator merely directs the pur- 
 chase of an estate by his trustees, and himself declares the 
 uses of the estate when purchased, the Court has no power to 
 alter or modify his words ; * it is only when something 
 is left incomplete and executory by the author of the 
 trust, that a Court of Equity will mould or modify the 
 words in order to give effect to the intentions of the party. 
 For, if the limitations of the trust-estate are definitely and 
 finally declared by the instrument itself, that will be 
 an executed trust, and it must be earned into execution as 
 strictly and literally as if it were a limitation of the 
 legal interest. 5 
 
 If the executory trust, which the testator has attempted Cyprus. 
 to create, is one which is void for illegality, as where it 
 violates the rale against perpetuities, the Court will carry 
 out the testator's intention cy pres, that is, as nearly as 
 possible, and will direct the property to be strictly settled. 6 
 
 1 1 Jac. & W.. 574. 
 
 2 See Sackville West v. Viscount Holmesdale. L. R., 4 E. & I.. App., 543. 
 
 3 2 Jarm. Pow. Dev.. 442 ; see Sackville West r. Viscount Holmesdale, 
 L. R., 4 E. & I., App.. 543. 
 
 4 Austen v. Taylor/ 1 Eden, 361 ; S. C., Arab., 376. 
 
 5 Jervoise r. The Duke of Northumberland. 1 Jac. and W., 570 : Bale ?. 
 Coleman. 1 P. Wms., 142 ; S. C., 2 Vern., 670 ; Papillon v. Voice, 2 P. 
 Wms.. 477 ; Douglas r. Congreve, 1 Beav.. 59. 
 
 6 Humberston r. Huuiberston. 2 Vern., 737 ; S. C , 1 P. Wms., 332. 
 
24 INTENTION. 
 
 LECTURE We have seen that the Court will endeavour to carry 
 I- out the intentions of the author of the trust, and in so 
 intention, doing is not bound to give their strict meaning to tech- 
 nical expressions which may be used in the instrument 
 creating the trust. Upon this principle of carrying the 
 intentions of the testator into effect, the Court will endea- 
 vour to construe expressions which have no strict tech- 
 nical operation, and this whether the instrument of trust 
 be a deed or will. 1 
 
 But the expressions used must be directory and certain ; 
 mere precatory expressions, or words of recommendation, 
 will not be enforced. 2 
 
 General In conclusion of this subject, it may be stated generally 
 for the guidance of trustees, that where an executory trust 
 arises on marriage articles, whose object is to provide for 
 the husband and wife, and their issue, the trustees will be 
 justified in executing the trust by limiting the estate in 
 strict settlement, although it would certainly be the more 
 prudent course for them to obtain a declaration of the Court 
 for their guidance even in these cases. 
 
 But where the trust is created by will, and the testator has 
 not himself distinctly and accurately specified the limita- 
 tions which are to be inserted, trustees could seldom or 
 ever be advised to take upon themselves the responsibility 
 of putting a construction on the direction of the testator 
 by the execution of any particular settlement ; this can 
 be done with safety only under the sanction of the Court. 
 And the same remark applies to executory trusts created 
 by any voluntary deed or instrument operating inter vivos. 
 
 If a husband have entered into articles on his marriage, 
 binding himself to make a particular provision for his wife 
 and children, it will not be competent for the trustees of 
 their own authority to accept any other provision in lieu 
 of that contemplated by the articles ; although they will 
 be justified in instituting a suit for the purpose of bring- 
 ing the propriety of such a substitution before the Court. 3 
 
 1 Woolmore v. Burrows. 1 Sim., 512 ; Lord Dorchester r. The Earl of 
 Effingham, 3 Beav., 180; Bankes v . Le Despencer, 10 Sim., 576 ; Coun- 
 tess of Lincoln v. Duke of Newcastle, 12 Ves.. 218 ; Lord Deerhurst v. Duke 
 of St. Albans. 5 Mad.. 232 ; Jervoise v. The Duke of Northumberland, 1 J. 
 and W., 559 ; Blackburn v. Stables, 2 V. and B., 367. 
 
 2 As to the limitations which will be directed, see Lewin on Trusts, 7th 
 edn.. pp. 102118 ; Knight v. Knight. 3 Beav.. 148, 177. 
 
 3 See Hill on Trustees. 329, citing Cooke r. Fryer, V. C. Wigram. 19th 
 Nov., 1844. 
 
SUBJECT-MATTER OF TRUST. 25 
 
 The next point to consider after defining the different LECTURE 
 kinds of trusts, is, the property which may be made the 
 subject of a trust. As a general rule it may be laid down, subject- 
 that every kind of property, whether moveable or immove- matter of 
 able, which may be legally transferred or disposed of, may tr 
 be the subject of a trust. It is not necessary that the 
 person creating the trust should have the legal estate, that 
 is to say, should be the absolute owner, for the equitable 
 owner of property, or the person having the beneficial 
 interest, may create a trust of such beneficial interest : l 
 and a trust may be created of property which is not in the 
 actual possession of the author of the trust, such as pro- 
 perty to which he will become entitled on the death of a 
 third person. 2 
 
 In Green v. Folgka/m? the sole possessor of a recipe 
 for making a medicine assigned it, on the marriage of his 
 daughter, to trustees, upon trust for her and her husband 
 for their lives; and directed that, after their decease, it should 
 be sold for the benefit of their children. The mother des- 
 troyed the recipe, and verbally communicated the contents 
 to her eldest son for the benefit of his brothers and sisters. 
 In a suit brought against him by some of the younger 
 children, he was declared to hold the secret upon the trusts 
 of the settlement, and was decreed to account for the 
 profits made by him by the sale of the medicine after his 
 mother's death : and as a sale was impracticable, an issue 
 was directed to ascertain the value of the secret. In Jenlts 
 v. Holford* Lord Northington, on an attempt being made 
 to make a child bring some chemical recipes given to her 
 by hei father into hotchpot, said, he would not counten- 
 ance these sorts of recipes, which he thought in most 
 cases savoured of quackery, so as to put a value on them 
 in Chancery ; as for aught he knew a recipe to make mince 
 pies or catch rats might be as valuable. If, however, the 
 recipe is valuable, even though it is for a trivial matter, 
 there does not seem to be any good reason why it should 
 not be made the subject of a trust. 
 
 If the policy of the law, as in the case of trusts Trusts 
 for immoral purposes, or any Statutory enactment such as pf?/"^ 
 the provisions of the Indian Succession Act, X of 1865, law. ' 
 
 1 Knight i: Bowver. 23 Beav.. 635 ; affirmed on appeal. 2 DeG. and J., 421. 
 
 2 Hobson >: Trevor. 2 P. Wms.. 191 ; Wright v. Wright, 1 Ves., 411. 
 
 3 1 S. & S.. 398. 4 1 Vern.. 62. 
 
26 
 
 PROPERTY WITHOUT JURISDICTION. 
 
 LECTURE 
 I. 
 
 Tide of 
 honor. 
 
 Trusts of 
 immove- 
 able pro- 
 perty 
 without 
 the juris- 
 diction of 
 a Court. 
 
 Penn v. 
 
 Lord 
 
 Baltimore. 
 
 Act X of 
 
 1877, 
 
 83. 15, 16. 
 
 s. 101, against perpetuities prevent the author of the trust 
 from parting with the beneficial interest in favor of the 
 intended cestui que trust, no valid trust can be created. 
 I shall deal with the subject of trusts against the polic} 7 " 
 of the law more fully hereafter. 
 
 No trust can be declared of a title of honor or of a 
 peerage. These are from their very nature personal pos- 
 sessions, and belong only to the person to whom they are 
 granted or on whom they descend, and cannot be held by 
 one person upon trust for another. 1 
 
 As a general rule, a Court of Justice has no control over 
 immoveable property situate without the local limits of 
 its jurisdiction. But a Court administering equity, as the 
 Courts in this country are bound to do, may, where a 
 person against whom relief is sought is within the juris- 
 diction, make a decree upon the ground of a contract or 
 any equity subsisting between the parties respecting pro- 
 perty situated out of the jurisdiction. The leading case 
 on this point is that of Penn v. Lord Baltimore? where 
 specific performance was decreed of an agreement respect- 
 ing lands in America. 
 
 The Code of Civil Procedure, Act X of 1877, ss. 15, 16, 
 provides, that 
 
 " Every suit shall be instituted in the Court of the lowest 
 grade competent to try it. 
 
 Subject to the pecuniary or other limitations provided by any 
 law, suits 
 
 (a) for the recovery of immoveable property, 
 
 (b) for the partition of immoveable property, 
 
 (c) for the foreclosure or redemption of a mortgage of im- 
 moveable property, 
 
 (d) for the determination of any other right to, or interest in, 
 immoteable property, 
 
 (e) for compensation for wrong to immoveable property, 
 
 (f) for the recovery of immoveable property under distraint 
 or attachment, 
 
 shall be instituted in the Court within the local limits of 
 whose jurisdiction the property is situate : 
 
 Provided that suits to obtain relief respecting, or compensa- 
 tion for wrong to, immoveable property held by or on behalf of 
 the defendant may, when the relief sought can be entirely obtained 
 through his personal obedience, be instituted either in the Court 
 
 The Buckhurst Peerage, L. R., 2 App. Ca., 1. 
 
 1 Ves., 
 
JURISDICTION OF HIGH COURTS. 27 
 
 within the local limits of whose jurisdiction the property is LECTUBE 
 situate, or in the Court within the local limits of whose jurisdic- I- 
 tion he actually and voluntarily resides or carries on business, or 
 personally works for gain. 
 
 Explanation. In this section ' property ' means property situ- 
 ate in British India. 
 
 This section does not apply to the High Courts in the 
 exercise of their ordinary or extraordinary civil juris- 
 diction. 1 The jurisdiction of the High Courts of Calcutta, 
 Bombay, and Madras, with regard to land without the 
 limits of their ordinary original civil jurisdiction, is pro- High 
 vided for by the Charter Act 2 and the Letters Patent Courts' 
 granted under it. Section 9 of the Charter Act provides, Charter - 
 that each of the High Courts to be established under the 
 Act shall have such jurisdiction as Her Majesty may, by 
 Letters Patent, grant and direct, subject, however, to such 
 directions and limitations as to the exercise of original 
 civil and criminal jurisdiction beyond the limits of the 
 Presidency-Towns as may be prescribed thereby. Sec- 
 tion 12 of the Letters Patent provides that the High Court, L etterg 
 in the exercise of its ordinary original civil jurisdiction, Patent, 
 shall be empowered to receive, try, and determine suits of 
 every description, if, in the case of suits for land or other 
 immoveable property, such land or property shall be 
 situated, or in all other cases, if the cause of action shall 
 have arisen, either wholly, or, in case the leave of the 
 Court shall have been first obtained, in part, within the 
 local limits of the ordinary original jurisdiction of the 
 High Court, or if the defendant, at the time of the 
 commencement of the suit, shall dwell or carry on business, 
 or personally work for gain within such limits. The High guits {o 
 Courts have jurisdiction, under this clause, to entertain land, 
 suits for land, whether the land is situated wholly, or in 
 part only, within the local limits of their ordinary original 
 jurisdiction, leave of the Court having been first obtained 
 in the latter case. 3 But if leave has not been obtained 
 they have no jurisdiction, even though the parties are 
 personally subject to the jurisdiction. 4 Thus the Courts 
 
 1 See Act X of 1877, s. 638. 2 24 and 25 Viet., c. 104. 
 
 3 Prasannamayi Dasi v. Kadambini Dasi, 3 B. L. R., 0. C., 85 ; S. M. 
 Jagadamba Dasi v. S. M. Padamani Dasi. 6 B. L. R., 686 ; Sreenath 
 Roy r. Cally Doss Ghose, I. L. R., 5 Calc., 82. 
 
 4 The East Indian Railway Co. v. The Bengal Coal Co., I. L. R., 
 1 Calc., 95 ; The Delhi and London Bank r. Wordie, ib., 249. 
 
28 FOUNDATION OF JURISDICTION. 
 
 LECTURE have jurisdiction to decree foreclosure of lands partly 
 L within and partly without the limits of their Original 
 Civil Jurisdiction, where leave has been obtained j 1 but not 
 if no leave has been granted, 2 suits for foreclosure being 
 suits ' for land.' 3 So also suits for redemption of mort- 
 gages, 4 arid for sale of mortgaged property in satisfaction 
 of the mortgage debt, 5 are suits for land. 6 
 
 But every suit having reference to land is not necessarily 
 a suit ' for land,' and the Courts have jurisdiction if the 
 object of the suit is not to recover possession of the land or 
 to deal with the land itself; 7 and it has been held, that a 
 suit to declare that a person resident in Calcutta holds 
 lands in the mofussil subject to certain trusts, is not ' a 
 suit for land.' 8 A suit in personam can be entertained 
 if the defendant resides within the jurisdiction, as for 
 example, a suit to restrain a nuisance. 9 
 
 Foundation j n order to found the jurisdiction of the Court some one 
 tiou" rU C " of three circumstances must exist ; either the defendant 
 must be within the jurisdiction of the Court, or the sub- 
 ject-matter in dispute must be situated within the juris- 
 diction of the Court, or the contract must have been 
 entered into within the jurisdiction of the Court. 10 The 
 fact that the defendant may be served with the summons, 
 although he is residing abroad, 11 does not extend the juris- 
 diction of the Court. 12 In Edwarde v. Warden, 13 a suit was 
 instituted against four trustees in India of a fund in 
 India, and one formal defendant in England, to recover 
 
 1 The Bank of Hindustan, China, and Japan v. Nundolall Sen, 11 
 B. L. R., 301. 
 
 2 Juggodumba Dossee v. Puddomoney Dossee, 15 B. L. R., 318, 328. 
 
 3 Bebee Jaun v. Meerza Mahomed Hadee, 1 Ind. Jur., 40. 
 
 4 Lalmoney Dossee i: Judoonath Shaw. 1 Ind. Jur., 319. 
 8 Leslie v. The Land Mortgage Bank, 18 W. R., 269. 
 
 8 But see Yenkoba v. Rambhaji, 9 Bom. H. C. Rep., 12. 
 
 ' Juggodumba Dossee v. Puddomoney Dossee, 15 B. L. R., 318 ; East 
 Indian Railway Co. v. The Bengal Coal Co., I. L. R., 1 Calc., 95 ; The 
 Delhi and London Bank i: "\Vordie, I. L. R., 1 Calc.. 249 ; Kellie v. Fraser, 
 I. L. R., 2 Calc., 445 ; Juggernauth Doss v. Brijnath Doss, I. L. R., 
 4 Calc., 322. 
 
 8 Bagram v. Moses, 1 Hyde, 284 ; see also Juggodumba Dossee v. 
 Puddomoney Dossee, 15 B. L. R., 318 ; Broughton v. Mercer, 14 B. L. 
 R., 442 ; Treepoora Soondery Dossee v. Debendronath Tagore, I. L. R., 
 2 Calc.. 52. 
 
 9 Rajmohun Boser. The East Indian Railway Co., 10 B. L. R., 241. 
 
 10 Cookney v. Anderson, 31 Beav., 452, 642. 
 
 11 Act X of 1877, s. 89. 
 
 12 Ibid, and see Maunder v. Lloyd, 2 J. and H.. 718. 
 11 L. R., 9 Ch., 495. 
 
LAND IN FOREIGN COUNTRY. 29 
 
 money payable in England. The trustees were served out LECTURE 
 of the jurisdiction, appeared and answered, and entered 
 into evidence ; and it was held, that as they had not 
 demurred, or pleaded, or moved to discharge the order for 
 service, the Court of Chancery had jurisdiction to deter- 
 mine the questions between the parties. 
 
 The Court, in enforcing equitable rights over, or titles to Court of 
 land situated without the limits of its jurisdiction, oper- ?<i uu y acts 
 
 f> i i r i i tn P ergo ~ 
 
 ates upon the conscience ot the defendant or in personam, nam and 
 not upon the property or in rem, and the decree, therefore, not * nren - 
 does not directly affect the property ; 2 but a trust of such 
 land is supported against a trustee resident within the juris- 
 diction by a decree operating in personam. 3 It is imma- Land may 
 terial whether the lands are situated within the limits of * e *"* 
 the British empire or are in a foreign country. The country. 
 Court of Equity will exercise its authority if the defendant 
 is within its jurisdiction 4 In Angus v. Angus, 5 a bill was Angus v. 
 brought for possession of lands in Scotland, and for a dis- A "^ us - 
 covery of the rents and profits, deeds and writings, and fraud 
 in obtaining the deeds was charged. The defendant pleaded 
 the 19th article of the Treaty of Union, and that the 
 lands in question, and the matter prayed by the bill, 
 were out of the jurisdiction of the Court. Lord Hard wicke 
 said : " This Court acts upon the person as to the 
 fraud and discovery, therefore the plea must be overruled. 
 To have made this a good plea, there ought to have been 
 a further averment, that the defendant was resident in 
 Scotland. This had been a good bill as to fraud and 
 discovery if the lands had been in France, if the persons 
 were resident here ; for the jurisdiction of the Court 
 as to frauds is upon the conscience of the party." 6 Of 
 course the Court of one country has no jurisdiction over 
 the Ccurt of another. In Lord Cranstotun v. Johnston, 1 LordCrans- 
 the plaintiff sued to set aside a sale made in pursuance j ^" s t' on 
 of a decree fraudulently obtained in the absence of the 
 debtor by the creditor, who himself purchased the pro- 
 perty at the execution-sale. The property was situated 
 
 1 Toller r. Carteret, 2 Vern., 494. 
 
 2 Earl of Kildare v. Eustace, 1 Vern., 421 ; Roberdeau v. Rous, 1 Atk., 
 543 : Carteret r. Petty, 2 Sw. ( 323. 
 
 3 Perm r. Lord Baltimore, 1 Ves., 4.j4. 
 
 4 Earl of Kildare r. Eustace. 1 Vern., 421. 
 s 1 West, 23. 
 
 6 See Scott r. Nesbitt, 14 Ves., 438. 
 ' 3 Ves.. 170. 
 
30 LAND IN FOREIGN COUNTRY. 
 
 I 
 
 LECTURE in the Island of St. Christopher in the West Indies. 
 * Sir R. P. Arden, AL R., said : " Upon the whole it comes 
 to this, that, by a proceeding in the Island, an absentee's 
 estate may be brought to sale, and for whatever inter- 
 est he has, without any particular upon which they are 
 to bid ; the question is, whether the Court will permit 
 the transaction to avail to that extent. It is said, this 
 Court has no jurisdiction, because it is a proceeding in the 
 West Indies. It has been argued very sensibly that it is 
 strange for this Court to say, it is void by the laws of the 
 Island, or for want of notice. I admit I am bound to say 
 that, according to those laws, a creditor may do this. To 
 that la\v he has had recourse, and wishes to avail himself of 
 it : the question is, whether an English Court will permit 
 such an use to be made of the law of that Island or of any 
 other country. It is sold, not to satisfy the debt, but in 
 order to get the estate, which the law of that country 
 never could intend, for a price much inadequate to the 
 real value, and to pay himself more than the debt for 
 which the suit was commenced, and for which only the 
 sale could be holden. It was not much litigated that the 
 Courts of Equity here have an equal right to interfere 
 with regard to judgments or mortgages upon lands 
 in a foreign country as upon lands here. Bills are 
 often filed upon mortgages in the West Indies. The 
 only distinction is, that this Court cannot act upon 
 the land directly, but acts upon the conscience of the 
 person living here. 1 Those cases clearly show that, with 
 regard to any contract made, or equity, between persons 
 in this country respecting lands in a foreign country, 
 particularly in the British dominions, this Court will hold 
 the same jurisdiction as if they were situated in England. 
 Lord Hardwicke lays down the same doctrine. 2 Therefore, 
 without affecting the jurisdiction of the Courts there, or 
 questioning the regularity of the proceedings as in a 
 Court of Law, or saying that this sale would have been 
 set aside either in law or equity there, I have no diffi- 
 culty inlaying, which is all I have to say, that this credi- 
 tor has availed himself of the advantage he got by the 
 nature of those laws, to proceed behind the back of the 
 
 1 Archer r. Preston, Lord Ardglasse r. Muschamp, Lord Kildare *. 
 Eustace, 1 Eq. Abr., 1 ; 1 Vern., 75, 135, 419. 
 
 2 3 Atk., 589. 
 
INJUNCTION. 31 
 
 debtor upon a constructive notice which could not operate LECTURE 
 to the only point to which a constructive notice ought, 
 that there might be actual notice without wilful default : 
 that he has gained an advantage, which neither the law 
 of this nor of any other country would permit. I will lay 
 down the rule as broad as this : this Court will not permit 
 him to avail himself of the law of any other country to 
 do what would be gross injustice." 
 
 Acting upon these principles, the Court of Chancery in 
 England has decided questions relating to trusts of lands 
 in Ireland, 1 in the Island of Sark, 2 in South America, 3 
 and in the West Indies. 4 It has ordered a sale of lands 
 abroad, 5 and has given relief against a fraudulent convey- 
 ance. 6 In Paget v. Ede, 7 it was held, that a foreclosure 
 decree being a decree in personam depriving the mortgagor 
 of his personal right to redeem, the Court had jurisdiction 
 to make such a decree in respect of a mortgage between an 
 English mortgagor and mortgagee of land in one of the 
 colonies. 
 
 There must be a privity between the plaintiff and de- Privity, 
 fendant, and it must appear that some contract or personal 
 obligation has been incurred moving directly from the one 
 to the other. 8 
 
 The jurisdiction of the Court is founded like all other injunction 
 iurisdiction of the Court, not upon any pretension to the restrai " in g 
 
 f j- i ] j j. ' j.- T-J. T. j i- a. proceeding 
 
 exercise 01 judicial and administrative rights abroad, but i>y other 
 on the circumstance of the person of the party on whom Courts, 
 the order is made being within the power of the Court. 
 And, acting upon the foregoing principles, it can restrain 
 the party within the limits of its jurisdiction from doing 
 anything abroad, whether the thing forbidden be a convey- 
 ance or other act in pais, or the instituting or prosecution 
 of an action in a foreign Court. 9 
 
 And therefore the Court of Chancery in England has 
 restrained persons within the jurisdiction from suing in 
 
 1 Earl of Kildare v. Eustace, 1 Vern., 421 ; Cartwright v. Pettus, 2 Ch. 
 Ca., 214 ; Earl of Ardglasse r. Muscharup, 1 Vern., 75. 
 
 2 Toller r. Carteret. 2 Vern., 495. 
 
 3 Cood v. Cood, 33 Beav., 314. 
 
 4 Lord Cranstown f. Johnston, 3 Ves., 182. 
 
 5 Roberdeau v. Rous, 1 Atk., 543. 
 
 6 Earl of Ardglasse v. Muschamp, 1 Vern., 75. 
 
 7 L. R.. 18 Eq.. 118. 
 
 8 Norris r. Chambres. 29 Beav., 246254. 
 
 9 Lord Portarlington i: Soulby. 3 M. & K., 108. 
 
32 
 
 OBJECT OP TRUST. 
 
 LECTURE the Ecclesiastical Court, 1 the Admiralty Court, 2 in th 
 I% Courts in Ireland, 3 Scotland, 4 and the Colonies, 5 and ha 
 restrained a defendant from taking possession. 6 
 
 If, however, a contract relating to land situated out c 
 the jurisdiction be one which the lex loci rei sitae render 
 incapable of fulfilment, the Court will not enforce the cor 
 tract against the proceeds of a sale of such land coming t 
 the possession of parties within the jurisdiction, thoug 
 they take such proceeds bound by the same equities a 
 affected the party to the contract under whom they claim.' 
 
 The decree of the Court does not, as we have seen, affec 
 the property directly. It is a personal decree ordering th 
 defendant to do certain things. If he neglects or refuse 
 to obey these orders, he can be imprisoned for an indefinit 
 period for contempt of Court, and his property within th 
 jurisdiction can be seized, and thus " his conscience is opei 
 ated upon." If, however, he is able to evade the proces 
 of the Court for arrest and has no property in the countr 
 which can be seized, the decree is of course practically use 
 less. 8 
 
 Moveable property has no locality, but is subject to th 
 law which governs the person of the owner. Accord 
 ingly, moveable property abroad belonging to a British sut 
 ject may become the object of a trust, which will be recog 
 nized in this country. 9 
 
 I shall now deal with the object for which the trust i 
 created. We have seen already, ante, p. 19, that trusts ma 
 be divided into lawful and unlawful, and that all lawfi 
 trusts may be enforced by a Court of Equity, and that, as 
 rule it may be laid down, that a trust is lawful until th 
 contrary is shown ; and that where a trust is unlawfu 
 and fraudulent, a Court of Equity will remain neutral, am 
 
 Trusts of 
 moveable 
 property 
 abroad. 
 
 Object 
 must be 
 lawful. 
 
 1 Hill v. Turner, 1 Atk., 516 ; Sheffield r. The Duchess of Buckingharr 
 shire, 3 M. and K.. 628. 
 
 2 Blad v. Bamfield, 3 Swanst.. 604 ; Jarvis r. Chandler, 1 T. & R.. 319. 
 
 3 Lord Portarlington v. Soulby, 3 M. & K., 104 ; Booth r. Leycestei 
 1 Keen. 519. 
 
 4 Kennedy v. Earl of Cassilis, 2 Swanst., 313 ; Innes r. Mitchel 
 4 Drewry, 57. 
 
 5 Bunbury ?. Bunbury. 1 Beav., 318. 
 
 6 Cranstown r. Johnston, 5 Ves., 278 ; Hope v. Carnegie, L. R., 1 Ch. 
 320. 
 
 7 Waterhouse r. Standfield, 9 Hare, 234 ; 10 Hare, 254 ; Norris i 
 bres, 29 Beav.. 246. 
 
 See Norris v. Chambres. 29 Beav., 246. 253. 
 
 9 Hill on Trustees. 3 ; Hill v. Reardon. 2 Russ., 608. 
 
TRUST MUST BE LEGAL. 33 
 
 will neither enforce the trust nor relieve the person creat- LECTURE 
 ing it, unless the illegal purpose fails to take effect. In 
 considering whether the object of the trust is one per- 
 mitted by the law, the general rule to be followed is, General 
 that the intention of the author of the trust is to be rule for 
 carried into effect, where it is not against good policy ; l j^ 06 ^,"' 
 " it is the intention of the party that creates and governs ther trust 
 uses and trusts," 2 " a trust is created by the contract lawful - 
 of the party, and he may direct it as he pleaseth." 3 
 " What the Court looks at in all charities " (and the 
 rule applies equally to all other trusts) said Romilly, 
 JVI. R., 4 " is the original intention of the founder, and apart 
 from any question of illegality and various other questions, 
 this Court carries into effect the wishes and intentions 
 of the founder of the charity : and where it sees that 
 those intentions have not been carried into effect, it 
 rectifies the existing administration of the charity 
 for that purpose. If it cannot cany them into effect 
 specifically, it carries them into effect as nearly as may be, 
 and with as close a resemblance to them as it can." This 
 rule has been applied to trusts created by Hindus. 5 
 
 In considering whether the object of a trust is legal or Indian 
 not, it will be useful to bear in mind the provisions 
 s. 23 of the Indian Contract Act : 
 
 " The consideration or object of an agreement is lawful, unless 
 
 it is forbidden by law, or is of such a nature that, if permitted, 
 it would defeat the provisions of any law ; or 
 
 is fraudulent ; or 
 
 involves or implies injury to the person or property of 
 another ; or 
 
 the Court regards it as immoral or opposed to public policy. 
 
 lu each of these cases, the consideration or object of an agree- 
 ment is said to be unlawful. Every agreement of which the 
 object or consideration is unlawful is void. 
 
 Illustrations. 
 
 (a.) A agrees to sell his house to B for 10,000 rupees. Here, B's 
 promise to pay the sum of 10,000 rupees is the consideration for 
 
 1 Burgess r. Wheate, 1 Eden, 195. 
 
 '-' The Attorney-General v. Sands. Hardres, 494. per Lord Hale. 
 
 s Pawlett r. The Attorney-General, Hardres. 469, per Lord Hale. 
 
 4 Attorney-General r. Dedham School, 23 Beav., 355. 
 
 s Jatiudra Mohan Tagore r. Ganendra Mohan Tagore, 9 B. L. R., 377. 
 
34 CONTRACT ACT. 
 
 LECTUEE A's promise to sell the house, and A's promise to sell the house is 
 I- the consideration for B's promise to pay the 10,000 rupees. 
 These are lawful considerations. 
 
 (b.) A promises to pay B 1,000 rupees at the end of six 
 months, if C, who owes that sum to B, fails to pay it. B pro- 
 mises to grant time to C accordingly. Here the promise of each 
 party is the consideration for the promise of the other party, and 
 they are lawful considerations. 
 
 (c.) A promises for a certain sum paid to him by B to make 
 good to B the value of his ship, if it is wrecked on a certain 
 voyage. Here, A's promise is the consideration for B's payment, 
 and B's payment is the consideration for A's promise, and these 
 are lawful considerations. 
 
 (d.) A promises to maintain B's child, and B promises to 
 pay A 1,000 rupees yearly for the purpose. Here, the promise 
 of each party is the consideration for the promise of the other 
 party. They are lawful considerations. 
 
 (e. ) A, B, and C enter into an agreement for the division 
 among them of gains acquired, or to be acquired, by them by 
 fraud. The agreement is void, as its object is unlawful. 
 
 (/*.) A promises to obtain for B an employment in the public 
 service, and B promises to pay 10,000 rupees to A. The agree- 
 ment is void, as the consideration for it is unlawful. 
 
 (g.) A, being agent for a landed proprietor, agrees for money, 
 without the knowledge of his principal, to obtain for B a lease 
 of land belonging to his principal. The agreement between A 
 and B is void, as it implies a fraud by concealment by A on his 
 principal. 
 
 (h.) A promises B to drop a prosecution which he has insti- 
 tuted against B for robbery, and B promises to restore the value 
 of the things taken. The agreement is void, as its object is 
 unlawful. 
 
 (z.) A's estate is sold for arrears of revenue under the provi- 
 sions of an Act of the Legislature, by which the defaulter 
 is prohibited from purchasing the estate. B, upon an under- 
 standing with A, becomes the purchaser, and agrees to convey 
 the estate to A upon receiving from him the price which B 
 lias paid. The agreement is void, as it renders the transaction 
 in effect a purchase by the defaulter, and would so defeat the 
 object of the law. 
 
 (;'.) A, who is B's inukhtar, promises to exercise his influence, 
 as such, with B in favour of C, and C promises to pay 1,000 
 rupees to A. The agreement is void, because it is immoral, 
 
 (.) A agrees to let her daughter to hire to B for concubi- 
 nage. The agreement is void, because it is immoral, though 
 the letting may not be punishable under the Indian Penal 
 Code." 
 
ILLEGAL TRUSTS. 35 
 
 It appeare, therefore, that if the object of the trust is LECTURE 
 contrary to the policy of the law, or if it is founded 
 upon an illegal or immoral contract, it will be void. 1 For Trusts con- 
 example, if the trust is based upon a transaction forbidden trar y to 
 by the law, 2 or is intended as a fraud upon an act of {^ W 1C ^ 
 the Legislature, 3 such for instance, as a fictitious and fraudu- founded 
 lent conveyance for the purpose of obtaining a property gaUon- " 
 qualification to enable the grantee to vote at elections, 4 tract void, 
 it will be void. In May v. May, 5 a conveyance of pro- 
 perty by a father to his son, to give him a qualification 
 to vote, was held not invalid, but a bounty. In Groves 
 v. Groves, 6 property was purchased by one person and con- 
 veyed to another in order to give the latter a vote at 
 Parliamentary elections, and the Court refused to assist 
 the purchaser, and a suit by him, seeking to make the 
 grantee a trustee, was dismissed. 7 So an assignment Assign- 
 of the half pay of an officer in the army is bad. For ment"of 
 half pay is intended by the State to provide decent half paj% 
 maintenance for experienced officers, both as a reward for 
 their past services, and to enable them to preserve such a 
 situation that they may always be ready to return into 
 actual service. It materially differs, therefore, from the 
 general case of expectancies, which may be assigned ; for 
 in the latter case, no public interest is thwarted. Thus 
 a pension is equally uncertain as half pay ; but as no future 
 benefit is meant to arise to the State from granting it, a 
 material difference arises between them. 8 So also an 
 attempt by a Hindu to create any estate, such for instance, 
 as an estate tail, which is unknown and repugnant to the 
 Hindu law, is void. 9 
 
 Among trusts which, according to English law, are void Trusts for 
 as being contrary to public policy, may be mentioned ^l"^^ 16 " 
 those to provide for future illegitimate children. Such children, 
 trusts are held to be void, because they tend to encourage 
 immorality. The law on this point, so far as regards per- 
 
 1 See Attorney-General r. Pearson, 3 Mer.. 399 ; Hamilton v. Waring, 
 2 Bligh., 209 : Earl of Kingston r. Lady Pierepont. 1 Vern., 5. 
 
 2 Exparte Dyster, 1 Mer.. 172. * Curtis r. Perry. 6 Ves.. 739. 
 
 * Childera r. Childers, 3 K. and J., 310 ; 1 De G and J., 482 ; Ash- 
 worth r. Hopper, L. R., 1 C. P. D., 178. 
 5 33 Beav., 8J. 6 3 Y. & J.. Ifi3. 
 
 7 See Rex r. Portington, 1 Salk., 162 ; Adlington r. Cann, 3 Atk., 154. 
 
 8 Stone v. Lidderdale. 2 Anst.. 533. 
 
 9 Soorjeemoney Dossee r. Denobundoo Mullick, 6 Moo. I. A.. 526 : 
 Jatiiidra Mohan Tagore v. Ganendra Mohan Tagore. 9 B. L It.. 377. 
 
36 
 
 ILLEGITIMATE CHILDREN. 
 
 LECTURE sons subject to English law, will be found in the case of 
 L Occleston v. Fullalove. 1 
 
 There a testator, who had gone through the ceremony 
 of marriage with Margaret Lewis, his deceased wife's sister, 
 who had two daughters, Catherine and Edith, by him, and 
 who was enceinte with a third at the date of the will, gave 
 a moiety of his property to trustees in trust for Margaret 
 Lewis for life, and after death, for his reputed children 
 Catherine and Edith, and all other children which he might 
 have or be reputed to have by Margaret Lewis, then born 
 or thereafter to be born. The third child, Margaret, was 
 born before the testator's death, and was acknowledged by 
 him as his child. Wickens, V. C., considering that the case 
 was governed by, the decision in Pratt v. Mathew, 2 held 
 that Margaret was not entitled to share in the testator's 
 property. On appeal, Lord Selborne, L. C., differing from 
 James and Mellish, L. JJ., agreed with the decision of 
 Wickens, V. C., thinking that he was bound by the authori- 
 ties. The Lord Justices, however, held, that there was 
 nothing in the authorities to prevent a child coming into 
 existence between the date of execution of the will and the 
 death of the testator from taking under the will, and that 
 Margaret was entitled to share. 
 
 The principle of the decision is, that a gift by a testator 
 or testatrix to one of his or her children by a particular 
 person, is perfectly good, if the child has acquired the repu- 
 tation of being such a child as described in the will before 
 the death of the testator or testatrix. 3 
 
 But a tinst for an illegitimate child in being, or en venire 
 sa m ^ re > a ^ the time of the creation of the trust, is good if the 
 child is clearly designated as the object of the gift. 4 " In 
 order," said Stuart, V. C., 5 " that any legatee whether the 
 legacy be to a class or to an individual may take, it is 
 necessary that the person or the class should be clearly 
 described. Where a gift is made to a child or to children as 
 a class, the natural and proper meaning of the word ' child ' 
 or ' children ' is legitimate child or legitimate children ; but 
 if the object of the gift is clearly described and clearly ascer- 
 tainable from the words of the will, it matters nothing 
 
 1 L. R.. 9 Ch., 147. 2 22 Beav, 328. 
 
 1 In re Goodwin's Trust. L, R., 17 Eq.. 346. See also Ellis r. Houston, 
 L. R.. 10 C. D., 236 ; Megson r. Hindle, L. R., 15 C. D., 198. 
 4 Medworth r. Pope, 27 Beav., 71. 
 * Holt r. Sindrey, L. R., 7 Eq., 173. 
 
 Trust for 
 
 being, or 
 en venire 
 sa mere. 
 
TRUST FORBIDDEN BY LAW. 37 
 
 whether the object of the gift be legitimate or illegitimate, LECTURE 
 because an illegitimate child, or a number of illegitimate 
 children as a class, if properly described, may be a legatee or 
 legatees just as well as legitimate children." 1 It is merely 
 a question of designation. 2 The principle which may fairly 
 be extracted from the cases upon the subject is this, the term 
 ' children ' in a will primd facie means legitimate children ; 
 and if there is nothing more in the will, the circumstance 
 that the person whose children are referred to has illegiti- 
 mate children will not entitle those illegitimate children to 
 take. But there are two classes of cases in which that primd 
 facie interpretation is departed from. One class of cases is, 
 where it is impossible from the circumstances of the par- 
 ties that any legitimate children could take under the 
 bequest. The other class of cases is, where there is, upon 
 the face of the will itself, and upon a just and proper 
 construction and interpretation of the words used in it, an 
 expression of the intention of the testator to use the term 
 ' children ' not merely according to its primd facie meaning 
 of legitimate children, but according to a meaning which 
 would apply to, and would include, illegitimate children. 3 
 In order to interpret the words of the will, it is always not 
 only allowable, but it is the duty of the Court, to obtain the 
 knowledge which the testator had of the state of his family, 
 so as to ascertain whether the testator intended illegitimate 
 children to take under general expressions used in the will. 4 
 
 A trust for a purpose which is forbidden by law is unlawful. Trust for- 
 As an example may be mentioned section 13 of Beng. Regu- bidden b 7 
 lation of 1793, which forbids Collectors from conferring on 
 their public officers any private trust relating to their per- 
 sonal concerns. 5 
 
 Another class of trusts, which are void as being against Trusts 
 public policy, are those in which an attempt is made to postp 01111 ^ 
 
 .i- 7 ' . f f i r> , enjoyment 
 
 postpone the enjoyment ot property tor an indefinite of property 
 period, or to prevent the alienation of property for ever. ? r restram- 
 
 fa i. -j j j i L *ii_ j f*S ahena- 
 
 iSuch trusts are considered to be injurious to the good ot tion. 
 
 1 See also Clifton v. Goodbun. L. R., 6 Eq., 278 ; Savage v. Robertson, 
 L. R.. 7 Eq. ( 176. z Lepine v. Bean. L. R., 10 Eq., 160. 
 
 3 Hill . Crook, L. R., 6 E. & L, App., 265, per Lord Cairns. See also 
 In re Brown's Trust. L. R., 16 Eq., 239. 
 
 4 Hill v. Crook. L. R., 6 E. & I., App., 265 ; Dorin r. Dorin, L. R., 
 7 E. & L, App., 568. 
 
 5 See also the Indian Contract Act, IX of 1872, ss. 2628, which 
 declares agreements in restraint of marriage, trade or legal proceedings 
 to be void. 
 
38 ACCUMULATION. 
 
 LECTURE the State, and will not be enforced. 1 " A perpetuity," said 
 Lord Guildford,- " is a thing odious in law, and destructive 
 to the commonwealth : it would put a stop to commerce, 
 and prevent the circulation of the riches of the kingdom ; 
 and therefore is not to be countenanced in equity." 3 
 
 In England the rule is, that no remainder can be 
 given to the unborn child of a living person for his 
 fife, followed by a remainder to any of the issue of such 
 unborn person, the latter of such remainders being 
 absolutely void. 4 The effect of this rule is to forbid the 
 tying up of lands for a longer period than can elapse 
 until the unborn child of some living person shall come 
 of age ; that is, for the life of a party now in being, 
 and for twenty-one years after, with a further period 
 of a few months during gestation, supposing th6 child 
 should be of posthumous birth. In analogy, therefore, 
 to the restriction thus imposed on the creation of 
 contingent remainders, the law has fixed the following 
 limits to the creation of executory interests : it will allow 
 any executory estate to commence within the period of 
 any fixed number of now-existing lives, and an additional 
 term of twenty-one years ; allowing further for the period 
 of gestation, should gestation actually exist. This addi- 
 tional term of twenty-one years may be independent or 
 not of the minority of any person to be entitled ; and if 
 no lives are fixed on, then the term of twenty-one years 
 - only is allowed. 6 By the Statute 39 and 40 Geo. Ill, c. 98, 
 the accumulation of income is forbidden for any longer 
 term than the life of the grantor or settlor, or twenty-one 
 years from the death of any such grantor, settlor, devisor, 
 or testator, or during the minority of any person 
 living, or en venire sa mere, at the death of the grantor, 
 devisor or testator, or during the minority only of any 
 person who, under the settlement or will, would for the 
 time being, if of full age, be entitled to the income so 
 
 1 See the Duke of Norfolk's case. 3 Ch. Ca., 20, 28, 35, 48. 
 
 2 Duke of Norfolk ?. Howard. 1 Yern... 164. 
 
 3 For instances of attempt to create perpetuities by the creation of 
 terms, see Floyer v. Bankes, L. R., 8 Eq., 115; Sykes r. Sykes. L. 11., 
 13 Eq, 56. 
 
 4 Hay r. The Earl of Coventry. 3 T. R., 86 ; Brudenell r. Elwes, 1 East. 
 452: Cole r. Sewell, 2 H. L. C.. 186 ; Moneypenny '-. Dering. 2 D. M. 
 G.. 145. 
 
 5 Cadell r Palmer, 7 Bligh, N. S., 202. 
 
 6 Williams on Real Property, 9th Ed.. 305. 
 
SUCCESSION ACT. 39 
 
 directed to be accumulated. The law was the same as LECTURK 
 regards trusts created by will in India up to the passing 
 of the Indian Succession Act, X of 1865. By section 101 of 
 that Act it is provided as follows : 
 
 " No bequest is valid whereby the vesting of the thing be- 
 queathed may be delayed beyond the lifetime of one or more 
 persons living at the testator's decease, and the minority of some 
 person who shall be in existence at the expiration of that period, 
 and to whom, if he attains full age, the thing bequeathed is to 
 belong. 
 
 Illustrations. 
 
 (a.) A fund is bequeathed to A for his life, and after his 
 death to B for his life, and after B's death, to such of the sons 
 of B as shall first attain the age of 25. A and B survive the 
 testator. Here the son of B, who shall first attain the age of 25, 
 may be a son born after the death of the testator ; such son 
 may not attain 25 until more than 18 years have elapsed from 
 the death of the longer liver of A and B ; and the vesting of 
 the fund may thus be delayed beyond the lifetime of A and B, and 
 the minority of the sons of B. The bequest after B's death is void. 
 
 (b.) A fund is bequeathed to A for his life, and after his 
 death to B for his life, and after B's death to such of B's sous 
 as shall first attain the age of 25. B dies in the lifetime of 
 the testator, leaving one or more sons. In this case the sons of 
 B are persons living at the time of the testator's decease, and 
 the time when either of them will attain 25 necessarily falls 
 within his own lifetime. The bequest is valid. 
 
 (c.) A fund is bequeathed to A for his life, and after his death 
 to B for his life, with a direction that, after B's death, it shall 
 be divided amongst such of B's children as shall attain the age of 
 18 ; but that if no child of B shall attain that age, the fund shall 
 go to C. Here the time for the division of the fund must arrive 
 at the latest at the expiration of 18 years from the death of B, a 
 person living at the testator's decease. All the bequests are valid. 
 
 (d.) A fund is bequeathed to trustees for the benefit of the 
 testator's daughters, with a direction that if any of them marry 
 under age, her share of the fund shall be settled so as to devolve 
 after her death upon such of her children as shall attain the 
 age of 18. Any daughter of the testator to whom the direction 
 applies must be in existence at his decease, and any portion of 
 the fund which may eventually be settled as directed, must vest 
 not later than 18 years from the death of the daughter whose 
 share it was. All these provisions are valid." 
 
 The rule in this section, it will be seen, does away alto- 
 gether with the absolute term of twenty-one years, and, 
 
40 RESTRAINT ON ALIENATION. 
 
 LECTUBE owing to the definition of minority, reduces to eighteen 
 years (or to eighteen and the period of gestation when the 
 person in being is unborn) the twenty-one years which 
 went to make up the period according to the English law. 1 
 This section of the Succession Act 2 applies to Hindus, 
 Jains, Sikhs, and Buddhists. 
 
 Perpetui- According to Hindu law, a perpetuity, save in the case of 
 ties among religious and charitable endowments, is illegal. Thus trusts 
 Hindus. Q accumu l a te property for ninety-nine years, 3 to accumulate 
 until the fund reached three lakhs, 4 and to postpone enjoy- 
 ment until the testator's children reached the age of twenty- 
 one, 5 have been held to be void ; and the rule cannot be 
 avoided by means of a colourable dedication to an idol. 6 The 
 law of wills among Hindus is analogous to the law of gifts ; 
 a person capable of taking under a will must be such a 
 person as could take a gift inter vivos, and therefore must 
 either in fact or in contemplation of law be in existence 
 at the death of the testator, and therefore a gift to an 
 unborn child, except in the case of an infant in the 
 womb, or an adopted son, is void. 7 And what cannot 
 be done by a gift, cannot be done by the intervention of a 
 trust. 8 So a trust for the maintenance of a family for 
 ever is void. 9 But a father may delay the rights of his 
 issue by interposing a valid estate previous to theirs. 10 
 
 Restraint It is against the policy of the law to permit a trust to be 
 on aliena- crea t e( j with a condition restraining alienation of the 
 interests of the cestui que trust generally. For instance, a 
 devise to trustees upon trust for daughters for their " sepa- 
 rate and inalienable use" is too remote and void. 11 And 
 
 I Stokes's Succession Act, 82. 2 Act XXI of 1870, s. 2. 
 
 3 Kumara Asima Krishna Deb v. Kumara Kumara Krishna Deb, 
 2 B. L. R., 0. C., 11. 
 
 4 S. M. Krishnaramani Dasi v. Ananda Krishna Bose, 4 B. L. R., 
 O. C., 231. 
 
 5 S. M. Bramamayi Dasi v. Jages Chandra Dutt, 8 B. L. R.. 400. 
 
 6 Promotho Dossee v. Radhika Persaud Dutt, 14 B. L. R., 175. 
 
 7 Jatindra Mohan Tagore v. Ganendra Mohan Tagore. 9 B. L. R., 377 ; 
 Soudaminey Dossee v Jogesh Chunder Dutt, I. L. R., 2 Calc., 262 ; 
 Bhoobun Mohini Debia p. Hurish Chunder Chowdhry, I. L. R., 4 Calc., 27 ; 
 Kherodemoney Dossee v. Doorgamoney Dossee, I. L. R., 4 Calc., 455 ; 
 Chundramoney Dossee v. Motilal Mullick. 5 Calc., 496. 
 
 8 Krishnaramani Dasi r. Ananda Krishna Bose, 4 B. L. R., 0. C., 
 231 ; Rajender Dutt v. Sham Chand Mitter, I. L. R., 6 Calc., 106 ; Kally 
 Prosono Mitter v. Gopee Nauth Kur, 7 Calc., 241. 
 
 9 Chundramoney Dossee v. Motilal Mullick, 5 Calc., 496. 
 
 10 Hurrosoondery . Cowar Kistonauth, Fult.. 393. 
 
 II Armitage v. Coates, 35 Beav., 1 ; In re Cunynghame's Settlement, 
 L. R., 11 Eq., 324 ; In re league's Settlement, L. R., 10 Eq., 564. 
 
INSOLVENCY. 41 
 
 such a restriction is void by both Hindu and Mahomedan LECTUBK 
 law. Thus, when a father, during his son's minority, gave 
 certain property to him, and on delivery of possession got 
 from him a document stipulating that he would not 
 alienate the property, and that, on his death, the property 
 should return to the father, it was held, that the condition 
 against alienation was absolutely void. 1 So, trusts prohibit- 
 ing or restricting the light of partition are void. 2 Aliena- 
 tion to a particular person may be restrained, but aliena- 
 tion generally, being repugnant to the estate, cannot. 3 So a 
 trust may be created in favour of a man, to determine and 
 go over on his bankruptcy, 4 but a trust to continue after 
 bankruptcy would be void. 5 For instance, a proviso in 
 a will that the cestui que tnist shall not have power to 
 sell, mortgage or anticipate the income of the trust fund, 
 will not prevent the assignee from taking the income on 
 the bankruptcy of the cestui que trust. 6 Such a con- 
 dition is inconsistent with, and repugnant to, the gift. 
 It is one of the incidents of property that it shall vest 
 in the assignees of a bankrupt for the benefit of his 
 creditors, and this incident cannot be taken away by the 
 author of the trust. 7 So the right of alienation is one of the Condition 
 incidents of the absolute ownership of property ; and there- ^fen*^on 8 
 fore, if an absolute gift without the intervention of trus- after ai>so- 
 tees is followed by a condition restricting the right of lute e ift - 
 alienation, the condition is wholly void. 8 
 
 Where trustees have a discretion as to the manner of insolvency, 
 the application of the trust-fund for the benefit of the 
 cestui que trust, but no power to apply it otherwise 
 than for his benefit during his life, the discretion is a dis- 
 cretion subject to the incidents of property, and is conse- 
 quently terminable upon the insolvency of the cestui que 
 
 1 Nabob Amiruddaula Muhammad v. Nateri Srinivasa Charlu, 6 Mad. 
 H. C. R.. 356. See Kumara Asima Krishna Deb v. Kumara Kumara 
 Krishna Deb, 2 B. L. R., 0. C , 25 ; Nitai Charan Pyne v. S. M. Ganga 
 Dasi, 4 B. L. R., 0. C., 26 ; Promotho Dossee v. Radhika Pershaud Dutt, 
 14 B. L. R., 175. 
 
 2 Mayne. 328, 356. 410. 
 
 Co. Litt., ss. 360, 361, 362. 
 
 ' Brandon v. Robinson, 18 Ves., 433. 
 
 Graves v. Dolphin, 1 Sim., 66. 
 
 Green r. Spicer. 1 R. & M.. 395 ; Snowdon r. Dales, 6 Sim., 524. 
 
 7 Brandon v. Robinson. 18 Ves.. 433 ; Bird v. Johnson, 18 Jur., 976. 
 
 8 Bradley v. Peixoto. 3 Vee., 324; Ross r. Ross. 1 Jac. & W.. 154 ; Ware 
 r. Cann, 10 B. and C., 433; Hood r. Oglander, 34 Beav., 513; Hunt- 
 Foulston r. Furber, L. R., 3 C. D., 285. 
 
 6 
 
42 INSOLVENCY. 
 
 LECTURE trust. The life-interest enures for the benefit of the credi- 
 tors, and any attempt to continue the insolvent in the 
 enjoyment of the property is in fraud of the law. 1 
 
 But where a testatrix bequeathed a share of her residue 
 in trust for her nephew for life, and by a codicil, after recit- 
 ing that her nephew had become bankrupt and m.snne. 
 she directed the trustees to appty during his life the whole 
 or such part of the interest of the fund, at such times, in 
 such proportions, and in such manner, for the maintenance 
 and support of her nephew, and for no other purpose what- 
 soever, as they, in their discretion, should think most expedi- 
 ent, it was held, that the nephew's assignees were not 
 entitled to any portion of the provision made for him. The 
 cases of Green v. Spicer, 2 Snowdon v. Dales, 3 and Piercy v. 
 Roberts 4 were distinguished, on the ground, that in those 
 cases the gift took effect before the donee became bankrupt, 
 and the income of the fund was either to be paid to the 
 donee or to be applied for his benefit generally. Whereas 
 in the case now under consideration, the trustees were only 
 to apply such sums as they thought fit for maintenance and 
 support, there was a trust created for the mere special pur- 
 pose of supporting and maintaining the nephew, and under 
 such a trust the assignees could take no interest. 5 
 
 If a trust is created for the benefit of two or more persons, 
 and one becomes bankrupt or insolvent, the assignee will be 
 entitled only to his proportionate part. In Page v. Way* 
 freehold and personal property belonging to the husband was 
 conveyed to trustees upon trust to receive the rents and pro- 
 fits, " and pay and apply the same when received, unto or for 
 the maintenance and support of the husband, his wife, and 
 children, or otherwise if the trustees should think proper, 
 to permit the same to be received by the husband during 
 his life, without power to charge or anticipate." The hus- 
 band became bankrupt, and in a suit by the assignees claim- 
 ing the whole income of the trust-property, it was held, 
 that a trust had been created for the maintenance and sup- 
 port of the wife and children out of the property during 
 the husband's life. Lord Langdale, M. R., said : " I am of 
 opinion that, so long as the wife and children were main- 
 
 1 Green v. Spicer, 1 R. and M., 395 ; Piercy v. Koberts, 1 M. and K, 4 ; 
 Snowdon v. Dales. 6 Sim., 524 ; Younghusband v. Gisborne, 1 Coll., 400. 
 
 2 1 R. and M., 395. 3 6 Sim., 524. 4 1 M. and K., 4. 
 
 5 Twopeny v. Peyton. 10 Sim., 487. See Re Sanderson's Trust, 3 K. 
 and J., 497. 6 3 Beav., 20. 
 
INSOLVENCY. 43 
 
 tallied by the husband, the trustees had a discretion to give LECTURE 
 him the whole income, but that it was their duty to see 
 that the wife and children were maintained. The assignees 
 take everything subject to what is proper to be allowed for 
 the maintenance of the wife and children." Again, where 
 property was vested in trustees upon trust to pay the 
 rents and profits to a certain person for life, provided that, 
 if he became bankrupt, the trustees should apply the rents 
 and profits in or towards the maintenance, clothing, lodging, 
 and support of the cestui que trust, and his then or any 
 future wife and his children, or any of them, as the trustees 
 should, in their discretion, think fit, it was held, on the 
 bankruptcy of the cestui que trust, that his life-estate was 
 forfeited at the time of his discharge, that, from the date 
 of the vesting order to the time of the discharge, the rents 
 and profits of the estate belonged to the assignee ; that, upon 
 the discharge taking place, the discretionary powers given 
 to the trustees by the settlement might be exercised by 
 them in favour of the insolvent, his wife, and children 
 collectively, or in favour of any of those persons to the 
 exclusion of the others, and that to whatever extent the 
 power might be exercised in favour of the insolvent, the 
 benefit which he would take by the appointment would 
 vest in the assignee. 1 
 
 Again, where a testator bequeathed his residuary estate 
 to trustees, and, after making a provision out of it, for the 
 benefit of his son and for his life, and, after the son's death, 
 for his wife and children, directed that, if his son should 
 assign or charge the interest to which he was entitled for 
 life, or attempt or agree to do any act. whereby the same, 
 or any part thereof, might, if the absolute property thereof 
 were vested in him, be forfeited to, or become vested in, 
 any person or persons, then the trustees should pay and 
 apply the said interest for the maintenance and support of 
 his son and of any wife and child or children he might have, 
 as the trustees in their discretion should think fit, it was 
 held, on the bankruptcy of the son, that the trust for the 
 benefit of the son, his wife, and children was valid, and 
 that the assignees were not entitled to any part of the 
 pi-ovision. Shadwell, V. C., said: " There is nothing in 
 point of law to invalidate such a gift that I am aware 
 
 ' Lord c. Burn, 2 Y. and C. C.C.. 98. See also Holmes f. Penney, 3 K. 
 aud J.,-90. 
 
44 INSOLVENCY. 
 
 LECTURE of. It does not follow that anything was of necessity 
 to be paid ; but the property was to be applied ; and 
 there might have been a maintenance of the son, 
 and of the wife, and of the children, without their receiv- 
 ing any money at all. For instance, the trustees might 
 take a house for their lodging, and they might give direc- 
 tions to tradesmen to supply the son and the wife and 
 the children with all that was necessary for maintenance : 
 and, therefore, my opinion is, that I am not at liberty to 
 take this as a mere gift for the benefit of the son simply ; 
 but it is a gift for his benefit in the shape of maintenance 
 and support of himself jointly with his wife and children : 
 and if that is the true construction of the gift in question, 
 the result is, that the assignees are not entitled to any- 
 thing." l In Kearsley v. Woodcock? Wigram, V. C., in a 
 similar state of circumstances said, that it was not of neces- 
 sity that any part of the trust-funds, under such a gift, must 
 be applicable for the separate benefit of the bankrupt ; 
 the whole property might not be more than sufficient for 
 the support and maintenance of the wife and children ; 
 and the benefit which the bankrupt derived from the pro- 
 perty might not be capable of severance ; it might be of 
 such a kind that no definite portion of the principal or 
 income could, in respect thereof, be diverted from its appli- 
 cation for the benefit of the other members of the family, 
 e.g., the joint occupation of a house, which was necessary 
 for the habitation of the wife and children, the expense 
 of which was not increased by the circumstance, that it 
 was also the abode of the bankrupt. 3 
 
 A trust for the benefit of a person until his bankruptcy 
 or insolvency, then in the discretion of the trustees for the 
 subsistence of himself and family, was held in Rippon v. 
 Norton* on the insolvency taking place, to entitle his three 
 children to three-fourths of the fund, and the assignees to 
 the remaining fourth. This case goes further than Page v. 
 Way 5 and Kearsley v. Woodcock. 6 In Wallace v. Ander- 
 son, 1 the trustees were, after the bankruptcy of the hus- 
 band and the death of the wife, to pay the income in 
 such manner, for the maintenance and support, or other- 
 wise for the benefit of the husband and the issue, as they 
 
 1 Godden v. Crowhurst, 10 Sim., 642. 2 3 Hare, 185. 
 
 * See also Wallace r. Anderson, 16 Beav., 533. 4 2 Beav., 63. 
 3 Beav., 20. 3 Hare, 185 ' 16 Beav., 633. 
 
INSOLVENCY. 45 
 
 might think proper. It was held, that the discretionary LECTURE 
 
 power of the trustees, as to the application of the income, 
 
 was not taken away by the bankruptcy, so as to entitle 
 
 the objects to take equally. An inquiry was directed as 
 
 to what had been properly applied for the maintenance of 
 
 the issue, and the assignees were declared to be entitled to 
 
 the surplus. Romilly, M. R., said : " I am not satisfied that 
 
 the point which has arisen in the present case was argued 
 
 in Rippon v. Norton. 1 To say that the discretion of the 
 
 trustees as to the application of the income was gone by 
 
 the bankruptcy, is to say that it never arose, and the 
 
 object of the trust would therely be defeated. I am not 
 
 sure that the Court would not, in a case like the present, 
 
 follow the rule laid down in Kearsley v. Woodcock""* 
 
 Although, as appears from the above authorities, a trust Tru9t to 
 restraining alienation of the interests of the cestui que ba'nk- 
 trust generally, or attempting to continue the interest off u P tc J r r r 
 the cestui que trust after his bankruptcy, is void, yet there "'' 
 is no objection to a trust to determine, in case the cestui 
 que trust shall become bankrupt or insolvent, 3 or shall 
 attempt to assign or incumber his interest. 4 The interest 
 of the cestui que trust in such a case determines as soon as 
 the act forbidden is done, even though the interest is still 
 in expectancy. Thus, where property was settled in the year 
 1823 on a wife for life, with remainder to the husband, 
 " until he should make any composition with his creditors 
 for the payment of his debts, although a commission of 
 bankruptcy should not issue against him ;" and in 1842, 
 the husband's principal creditors agreed to take a composi- 
 tion on their debts secured by bills, and the wife did not 
 die until 1852, it was held, that the composition, though 
 it was not made with the whole of the husband's creditors, 
 and was made during the wife's life, and did not affect 
 the trust-property, nevertheless operated MS a forfeiture of 
 the husband's interest. 5 So the interest will determine upon 
 the execution of a composition deed by the cestui que 
 
 1 2 Beav.. 63. 2 3 Hare, 185. 
 
 3 Lockyer r. Savage. 2 Str.. 947 ; Ex parts Oxley. 1 B. and B., 257 ; 
 Etparte Hinton. 14 Ves., 598 ; Cooper v. Wyatt. 5'Mad., 482 ; Yarnold r. 
 Moorehouse. 1 R. and M.. 364 ; Lewes v. Lewes. 6 Sim., 304 ; In re Ayl- 
 win's Trusts. L. R., 16 Eq., 585. 
 
 4 Stanton r. Hall. 2 R. and M., 175 ; Stephens v. James, 4 Sim., 499 ; 
 Oldham v. Oldham. L. R.. 3 Eq., 404. 
 
 s Sharp r. Cosserat, 20 Beav., 470. 
 
4G FORFEITURE. 
 
 LECTURE trust, even though he does not become bankrupt or insol- 
 vent, or execute any assignment of the property for the 
 benefit of his creditors. 1 If a sum of money is left for 
 the purpose of purchasing an annuity for a particular per- 
 son, with a condition that it shall determine if the annui- 
 tant shall at any time sell, assign, incumber, or in anywise 
 dispose of or anticipate the same, the annuitant will not 
 be entitled to the value of the annuity. 2 The rules to 
 be followed in determining questions of this class were 
 thus laid down by Turner, V. C., in Rochford v. Hackman: 3 
 First, that property cannot be given for life any more than 
 absolutely, without the power of alienation being incident 
 to the gift ; and that any mere attempt to restrict the power 
 of alienation, whether applied to an absolute interest or to 
 a life-estate, is void, as being inconsistent with the interest 
 given ; and secondly, that although a life-interest may be 
 expressed to be given, it may be well determined by an 
 apt limitation over. And he also expressed an opinion that 
 the life-interest might be well determined by a proviso for 
 cesser, although it be not accompanied by any limitation 
 over, for no greater effect could, he thought, be given to 
 a limitation over than to an express declaration that the 
 life-interest should cease. This latter point was expressly 
 decided by Wood, V. C., in Joel v. Mills* 
 
 Trust to A clause providing for the determination of the interest 
 happening f the cestui que trust upon the happening of a particular 
 of parti- event within a specified time, whether the tims is certain 
 cuiar event. Qr uncer t a j ri) j s good, e.g., a clause providing against dispo- 
 sition during the life of a third person, 5 or before attaining 
 a certain age. 6 
 
 When property is settled on A for life, and after her 
 death on B for life, until he shall become insolvent, and 
 then over, the gift over takes effect on B*s insolvency iu 
 A's lifetime. 7 
 
 Clauses of Clauses of forfeiture will be construed strictly, and there- 
 forfeiture f ore th e very act provided against must have been done. 
 
 construed >. . ? . . . 
 
 strictly. Ihus a proviso giving property over, it the cestui que trust 
 should alienate, or attempt to alienate, it does not come 
 
 1 Billson r. Crofts, L. R., 15 Eq., 314. 
 
 2 Hatton r. May, L. R., 3 C. D., 148. 
 
 3 9 Hare, 480. 4 3 K. and J., 458. 
 
 5 Kearsley v. Woodcock. 3 Hare, 185. 
 
 6 Churchill r. Marks. 1 Coll., 441. 
 
 7 Re Muggeridge's Trust, Johns.. 625. 
 
FORFEITURE. 47 
 
 into effect on his bankruptcy, which is an alienation by LECTUBE 
 operation of law, and not a voluntary act. 1 It would, how- 
 ever, come into effect if he presented a petition in insol- 
 vency, see infra, note 10 ; and the penalty of forfeiture on 
 bankruptcy is not incurred by a composition with creditors. 2 
 The words of the clause, however, may be so wide as to 
 show that the author intended that it should come into 
 effect upon the cestui que trust doing any act which would 
 affect the life-estate. 3 
 
 So the giving a warrant of attorney will not work a 
 forfeiture, unless done as a contrivance to evade the prohi- 
 bition against alienation; 4 nor, even in England, will the 
 marriage of a feme sole cause a forfeiture of an annuity 
 which is to determine upon the annuitant's doing any act 
 by which the property " should be vested or become liable 
 to be vested in any other person." 5 So a charge on arrears 
 of an annuity is good, 6 or a charge on the income as it 
 accrues. 7 
 
 A general assignment of property will not include pro- 
 perty liable to forfeiture. 8 
 
 Where there is a clause of forfeiture on bankruptcy, 
 and the cestui que trust becomes bankrupt, and the 
 bankruptcy is annulled before any beneficial interest in 
 the property has come to the assignee, the clause will not 
 take effect. 9 
 
 The presentation of a petition in insolvency by the insol- 
 vent himself is a voluntary a-t, and as the property of 
 the insolvent vests in the Official Assignee, the presentation 
 of a petition would be an alienation of his property, and 
 would work a forfeiture. 10 
 
 The owner of property, whether moveable or immove- 
 
 1 Lear v. Leggett, 2 Sim., 479 ; Whitfield v. Prickett, 2 Keen, 
 608. 
 
 - Montefiore r. Enthoven, L. R., 5 Eq., 35. 
 
 3 Exparte Eyston L. R ., 7 C. D., 145. 
 
 4 Avison v. Holmes. 1 J. and H., 530 ; Barnett v. Blake, 2 Dr. and Sm., 
 117 ; Montefiore r. Beheens. 35 Beav., 95. 
 
 s Bonfield v. Harsell, 32 Beav., 217 ; see, however, Craven r. Bradley, 
 L. R.. 4 Ch. App., 296. 
 
 6 Be Stretz's Trusts, 4 D. M. G., 404. 
 
 7 Cox v. Bockett, 35 Beav., 48. 
 
 8 Fausset v. Carpenter. 2 Dow. and Cl.. 232. 
 
 9 Ancona r. Waddell, L. R., 10 C. D., 157. 
 
 10 See Shee v. Hale. 13 Ves.. 404 ; Brandon v. Aston, 2 Y. and C. C. C., 
 24 ; Churchill v. Marks. 1 Coll.. 441 ; Martin r. Margham, 14 Sim., 230; 
 Townsend r. Early. 34 Beav.. 23. 
 
48 
 
 FAILURE OF TRUST. 
 
 Trust for 
 
 immoral 
 
 purposes. 
 
 Failure of 
 trust. 
 
 LECTURE able, cannot create a trust of it for his own benefit to go 
 over in case of his bankruptcy or insolvency. 1 
 
 Any trust, as well as any contract for immoral purposes, 
 is of course void. 2 
 
 If the purpose for which the trust is created fails, 
 because it is unlawful or fraudulent, a Court of Equity 
 will not act. It cannot enforce the trust in favour of the 
 cestui que trust, for that would be to declare the trust to 
 be good ; and it will not restore the property to the author 
 of the trust, because a man cannot be allowed as plaintiff to 
 plead his own wrong. A right of action cannot arise out of 
 fraud. In such a case, therefore, if the property has got 
 into the hands of the trustee, the author of the trust is 
 without remedy, for where there is an equal wrong, the title 
 of the holder shall prevail. 3 But though the author of an 
 unlawful or fraudulent trust cannot recover the property 
 from the trustees, persons claiming through him may sue 
 for the purpose. " There is a great difference," said Lord 
 Eldon, " between the case of an heir coming to be relieved 
 against the act of his ancestor in fraud of the law, and of a 
 man coming upon his own act under such circumstances." 4 
 A defendant cannot set up the fraud of his ancestor. 
 
 There is an exception to the general rule that where a 
 trust has been created for an unlawful or fraudulent pur- 
 pose, the Court will not interfere; for it will do so where 
 the illegal purpose fails to take effect, and nothing is done 
 under ifc. The mere intention to effect an illegal object will 
 not deprive the author of the trust of his right to recover 
 the property. 6 
 
 1 In re Murphy, t Sch. and Lef., 44 ; In re Meaghan. i,b., 179 ; Higin- 
 botham v. Holme, 19 Ves., 88. As to settlements on marriage, see Lewiu, 
 7th edn., 94. 
 
 2 See Contract Act, I of 1872, s. 23, illus. (&) ; Thornton v. Howe, 
 31 Beav., 14. See as to dancing-girls, Chinna Ummayi v. Tegarai Cbetti, 
 I. L. R.. 1 Mad., 168 ; Mathura Naikin v. Esu Naikin, I. L. R., 4 Bomb., 545. 
 
 9 Cottington v. Fletcher, 2 Atk., 155 ; Chaplin v. Chaplin, 3 P. Wms., 
 229 ; Muckleston v. Brown, 6 Ves., 68 ; Ottley v. Browne, 1 B. and B., 
 360 ; Groves v. Groves, 3 Y. and J.. 163; Hamilton v. Ball, 2 Ir. Eq., 191 ; 
 Davies v. Obty, 35 Beav., 208 ; Haigh v. Kaye, L. R., 7 Ch., 469. 
 
 4 Muckleston v. Brown, 6 Ves., 68 ; Joy v. Campbell, 1 Sch. and Lef., 
 328 ; Matthew v. Hanbury, 2 Vern.. 187 ; Brackenbury v. Brackenbury, 
 2 Jac. and W., 391 ; Groves v. Groves, 3 Y. and J , 163 ; Miles v. Durnford, 
 2 D. M. G., 641 ; Childers v. Childers, 3 K. and J., 310 ; 1 DeG. and 
 J.. 482. 
 
 * Doe d. Roberts v. Roberts, 2 B. and Aid., 367 ; Bessey v. Windham, 
 6 Q. B , 166 ; Phillpotts r. Phillpotts, 10 C. B., 85. 
 
 Davies v. Otty, 35 Beav., 208 ; Symes v. Hughes, L. R., 9 Eq.. 475 ; 
 Manning v. Gill, L. R., 13 Eq., 485 ; Haigh r. Kaye, L. R., 7 Ch., 469. 
 
 Illegal 
 
 purpose 
 
 failing. 
 
TRUST PARTLY LAWFUL. 49 
 
 If the defendant wishes to rely on the illegality of the LECTUBE 
 transaction as a defence, he must plead it in distinct terras. 1 
 
 In order to a complete trust, there must be a cestui que Must be a 
 trust, a person to be benefited by the trust, otherwise the cestui que 
 trust fails, and the property appropriated for the purpose irust " 
 results to the author of the trust or his representatives. 
 In England, it has been repeatedly held, that a trust, 
 merely for the purpose of keeping up tombs or buildings, 
 which are of no public benefit, but only an individual 
 advantage, is not a charitable use, but a perpetuity, and is 
 void. 2 
 
 The object of a trust must, as we have seen, ante, p. 33, Trust part- 
 be lawful. Where the object is clearly unlawful, no difficulty and^nly 
 arises, for the Court will not enforce an illegal trust. But unlawful, 
 the object may be in part lawful and in part unlawful, 
 and the question then arises as to whether the whole trust 
 fails, or whether the lawful part remains good. In Eng- 
 land the rule is, that if property be given to trustees, to 
 apply part thereof for an unlawful purpose, and to hold 
 or apply the residue for a lawful purpose, then, unless the 
 amount intended to be applied for the unlawful purpose 
 can be ascertained, the whole gift will fail ; but the fact 
 that the amount to be applied for the unlawful purpose 
 has not been expressly stated in the gift, will not make 
 the whole gift void ; and the Court will, if it be practicable, 
 ascertain the amount which would have satisfied the unlaw- 
 ful purpose, and hold the gift good as to the residue. 3 
 The Contract Act 4 provides, that where persons recipro- 
 cally promise, firstly, to do certain things which are legal, 
 and secondly, under certain specified circumstances, to do 
 certain other things which are illegal, the first set of pro- 
 mises is a contract, but the second is a void agreement ; and 
 that, in the case of an alternative promise, one branch of 
 which is legal, and the other illegal, the legal branch alone 
 can be enforced. 
 
 If a trust is created of immoveable property in a Trust of 
 foreign country, the better opinion seems to be that the ""[j! p V r "_ 
 
 perty in 
 
 1 Haigh v. Kaye, L. R., 7 Ch., 469. foreign 
 
 2 Lloyd v. Lloyd, 2 Sim., N. S.. 255 ; Thomson ?'. Shakespeare, Johns, country. 
 612 ; 1 De. G. F. and J., 399 ; Fowler v. Fowler, 33 Beav.. 616 ; Fisk r. The 
 Attorney-General. L. R., 4 Eq., 521 ; Hunter v. Bullock, L. R., 14 Eq., 45 ; 
 Dawson v. Small, L. R , 18 Eq., 114 ; Gott c. Nairne, L. R., 3 C. D., 278 ; 
 
 lie Williams, L. R., 5 C. D., 735. 
 
 3 See Lewin on Trusts, 7th Edn., 97. 
 
 4 IX of 1872, ss. 57, 58. 
 
50 IMMOVEABLE PROPERTY ABROAD. 
 
 LECTURE trusts must conform to the laws of the laud where the 
 property is. la Nelson v. Bridport, 1 an estate in Sicily 
 had been granted to Lord Nelson with power to appoint 
 a successor, and it was held that the incidents to real 
 estate, the right of alienating it, and the course of succes- 
 sion to it, depend entirely upon the law of the country 
 where the estate is situated. 
 
 1 8 Beav., 547. 
 
LECTURE II. 
 
 DECLARATION OF TRUST. 
 
 Declaration of trust Intention to create trust must be shown Valuable con- 
 sideration Consideration not necessary Transmutation of possession 
 Voluntary settlements If incomplete, not enforced against settlor If 
 nothing more to be done by settlor, trust is complete Assignment by 
 cestui que trust Notice What amounts to a valid declaration of 
 trust Ineffectual assignment Chose-in-action Subsequent disclaimer 
 by trustee Settlor cannot revoke voluntarily Setting aside voluntary 
 settlement Defrauding creditors To what property Statute applicable 
 Question of fraud is one of fact Assignment by way of mortgage 
 Valuable consideration not support when malajides Sale to defeat 
 Crown Assignment in favour of one creditor Voluntary settlements 
 within Statute Indebtedness of settlor Secured debts Consideration 
 paid to third person Voluntary settlement only void as against exist- 
 ing creditors Unless fraud How far settlement void Insolvent Act, 
 s. 9 Section 24 Defrauding purchaser Statute does not extend to 
 personal estate When settlor may defeat settlement Subsequent pur- 
 chase must be for value How far voluntary settlement defeated 
 Personalty settled Subsequent will Conveyances with power of re- 
 vocation Effect of Statute Valuable consideration Marriage Ex- 
 trinsic evidence admissible to show consideration Settlement not set 
 aside as against grantors Voluntary settlement in expectation for 
 death Rectifying settlement Enforcement On whom binding Cre- 
 ditors' deeds how far reyocable Johns v. James Execution of deed 
 by creditors Deed not communicated to creditors Trust by will for 
 payment of debts. 
 
 I NOW propose to treat of the manner in which a trust Declaration 
 may be declared. of trust. 
 
 As regards moveable property beyond the limits of the 
 ordinary original civil jurisdiction of the High Courts, 
 whether belonging to European British subjects, Hindus or 
 Mahomedans, trusts may be declared by parol, or by an 
 instrument in writing, which may be either testamentary or 
 non-testamentary. The Hindu law, in no transaction, abso- 
 lutely requires a writing j 1 nor, so far as I am aware, does 
 
 1 Crinivasammal v. Vijayammal, 2 Mad. H. C. R., 37 ; Krishna v. Ray- 
 appa. 4 Mad. H. C. R., 98 ; M. S. Rookho v. Madho Dass, 1 N. W. P. 
 H.. C^ R., 63 ; Jivandas Keshavji r. Framji Nanabhai, 7 Bom. H. C.. O. J., 
 51 ; Hurpurshad r. Sheo Dyal, L. R., 3 I. A., 259. See, however, Sirdar 
 Satney v. Piran Singh, I. L. R., 3 All., 466. 
 
52 
 
 INTENTION TO CREATE TRUST. 
 
 LECTUEE the Mahomedan law. With regard to European British 
 II- subjects resident without the limits of the jurisdiction of the 
 High Courts, it is doubtful whether they would be governed 
 by the Statute of Frauds or not. 1 If not, they would be 
 governed by the English Common Law as it stood before 
 the Statute, and at Common Law a trust, whether of real or 
 personal property, was averable, that is, might be declared 
 by parol. So much of the Statute of Frauds as relates 
 to the creation of trusts is still in force within the 
 Presidency-Towns, and trusts of lands created by European 
 British subjects must conform to the provisions of the 
 Statute. The seventh section provides that all declarations 
 or creations of trusts or confidences of any lands, tenements, 
 or hereditaments shall be manifested and proved by some 
 writing to be signed by the party who is by law enabled to 
 declare such trust, or by his last will in writing, or else 
 they shall be utterly void and of none effect. Trusts of 
 moveable property are not within the Statute, and may 
 therefore be declared by parol. 3 
 
 It is only necessary that the person creating the trust 
 sna ^ clearly show his intention to create the trust, 4 
 
 be shown, and shall point out the subject-matter of the trust and 
 the persons who are to benefit by it. Technical words are 
 not necessary, but if they are used, their technical meaning 
 must be given to them. 5 Where there is valuable consi- 
 Deration, and a trust is intended to be created, formalities 
 are of minor importance, since, if the transaction cannot 
 take effect by way of trust executed, it may be enforced 
 by a Court of Equity as a contract. 6 Where immoveable 
 property was given into the possession of the defendant 
 under an order of a revenue officer, which directed the 
 defendant to sell the crops, and after payment of the 
 Government dues, to account for the profits to the plaintiff 
 on his claiming it, it was held that the defendant was not 
 a depositary, but a trustee. 7 
 
 Intention 
 
 Valuable 
 gn ' dera ~ 
 
 1 See Gardiner r. Fell, 1 Moo. I. A., 299 ; Freeman r. Fairlie, '&., 305 ; 
 Mayor of Lyons r. East India Co., ib., 175 ; Stokes's Older Statutes, i. 
 
 2 See Lewin, 7th Ed., p. 47. 
 
 8 Fordyce v. Willis, 3 Bro. C. C., 587 ; MTadden v. Jenkyns, 1 Hare, 
 461 ; Peckham v. Taylor, 31 Beav., 250. 
 
 As to the formalities requisite in order to comply with the Statute of 
 Frauds, ace Lewin, 7th Ed., p. 49 ; and as to the Statute of Wills, see p. 53. 
 
 4 Lewin, 7th Ed., p. 74. 5 Ibid. 99. 6 Ibid. ()_'. 
 
 7 Vital Vishva Nath Prabhu v. Ilam Chandra Sadashiv Kirkire, 
 7 Bom. H. C., 149. 
 
VOLUNTARY SETTLEMENTS. 53 
 
 It is not necessary there should be any consideration to LECTUBB 
 support a trust. 1 If a trust has been -perfectly created, n - 
 it is not necessary that there should have been a trans- considera- 
 mutation of possession, and it cannot afterwards be de- tion not 
 feated by any act of the settlor. 2 As a general rule, it 11 
 may be laid down that, in order to make a voluntary , r ,1"n"~ 
 declaration of trust binding upon the author of the trust, possession, 
 he must have completely parted with all his interest in 
 the property to the trustee, or have declared himself to 
 be a trustee of the property for the benefit of the cestuis 
 que trustent? It is not necessary, in order that the trust 
 may be binding, that it should be communicated to, or 
 accepted by, the volunteer. 4 
 
 The leading case with reference to settlements and trusts Voluntary 
 in favour of a volunteer, that is to say, a person who has segments 
 not given any consideration, is Ellison \. Ellison. 5 " I 
 take the distinction to be," said Lord Eldon, " that, if you 
 want the assistance of the Court to constitute you cestui 
 que trust, and the instrument is voluntary, you shall not 
 have that assistance for the purpose of constituting you 
 cestui que trust ; as upon a covenant to transfer stock, 
 &c., if it rests in covenant and is purely voluntary, this 
 Court will not execute that voluntary covenant. But if 
 the party has completely transferred stock, &:c., though it 
 is voluntary, yet the legal conveyance being effectually 
 made, the equitable interest will be enforced by this Court. 
 ... If the actual transfer is made, that constitutes the 
 relation between trustee and cestui que trust, though vo- 
 luntary, and without good or meritorious consideration." 
 
 But although a voluntary settlement or grant may be if incom- 
 valid as against creditors and purchasers, it may be incom- P l 1 ) e / ern ? t 
 plete ; and then will not be enforced against the settlor." 6 against 
 
 settlor. 
 
 1 Lewin, 7th Ed., 62 ; see also Suttaprosunno Ghosal r. Rakhalmoney 
 Dossee, Boul., 706. 
 
 - Jamsetji Jijibhai r. Sona Bhai, 2 Bom. H. C. R., 143 ; and see Lewin, 
 7th Ed.. 62. 
 
 1 Milroy r. Lord. 4 D. F. & J., 274 ; Warriner r. Rogers. L. R . 16 Eq., 
 340 ; Richards r. Delbridge. L. R., 18 Eq., 11 ; Heartley v. Nicholson, 
 L. R., 19 Eq., 233. As to what amounts to a complete transfer, see Parnell 
 r. Kingston, 3 Sm. & G.. 337 ; Wheatley r. Purr, 1 Keen., 551 ; Stapleton 
 v. Stapleton. 14 Sim., 186 ; Moore v. Darton, 4 DeG. & Sm., 517 ; Gee r. 
 Liddell, 35 Beav.. 621. 
 
 4 Me Way, 2 D. J. & S., 365 ; Lambe r. Orton, 1 Dr. & Sm., 125 ; Tate 
 v. Leithead. Kay. 658. 
 
 5 6 Ves., 656 ; 1 W. & T. L. C., 245, 4th Ed. 
 
 6 Antrobus r. Smith, 12 Ves.. 46 ; Ellison r. Ellison, 6 Ves., 662 ; 
 Jeffreys r. Jeffreys, Cr. & Ph., 138 ; Ex parte Pye. 18 Ves., 149. 
 
54 VOLUNTARY SETTLEMENTS. 
 
 LECTURE A volunteer has no equity to enforce a mere voluntary 
 ** promise to assign against the assets of the person who 
 made the promise. 1 A voluntary covenant to transfer 
 stock is a mere imperfect gift which equity will not 
 assist. 3 So is a voluntary covenant to transfer shares. 3 
 A voluntary settlement is incomplete unless the interest 
 of the donor has been completely parted with, and there- 
 fore a voluntary agreement to declare a trust will not be 
 enforced. 4 Even if the settlor has executed a deed pur- 
 porting to pass his interest, and he intends to carry out 
 the transaction, yet if, for any reason, he has not in fact 
 parted with his interest, the trust cannot be executed. 5 
 But when a covenant or other . instrument creates such a 
 complete obligation on the part of the covenantor, that 
 damages would be recoverable in case of breach, effect will 
 be given to it, as when a person covenants to pay a sum 
 of money or an annuity. 6 So a settlement or gift by 
 the bond of the settlor may be enforced against the obli- 
 gor's estate ; 7 and a person claiming under such a bond is 
 within the Statute 13 Eliz., c. 5, and is entitled to the 
 protection of the Statute like any other creditor. 
 
 In Hervey v. Audland* it was held that a covenantee 
 under a voluntary covenant for further assurance could 
 not prove under an administration suit against the cove- 
 nantor's estate. But, in Cox v. Barnard? this was allowed, 
 upon the ground that though the Court might not specifi- 
 cally execute the covenant as damages were wanted, it 
 could give damages. 10 The delivery of property or securi- 
 ties passing by delivery is valid. 11 
 
 1 Marler r. Tommas, L. R., 17 Eq.. 8, 13. 
 
 2 Ellison v. Ellison, 6 Ves.. 656 ; Ward r. Audland. 8 Sim.. 571. 
 
 3 Dillon v. Coppin, 4 M. and C., 647 ; Dillwyn v. Llewelyn, 4 D. F. J., 
 617. 
 
 4 Evelyn v. Templar, 2 Bro. C. C., 148 ; Coleman v. Sarrel, 1 Ves., J., 60 ; 
 Jeffreys v. Jeffreys. Cr. and Ph., 138. 
 
 s Garrard v. Lord Lauderdale, 2 R. & M., 452 ; Meek v. Kettle-well, 
 1 Hare., 469 ; Richards v. Delbridge, L. R., 18 Eq., 11 ; Heartley r. Nichol- 
 son, L. R., 19 Eq., 233 ; Batstone v. Salter, L. R., 10 Ch., 431 ; Bulbeck v. 
 Silvester, 45 L. J.. Ch., 280. 
 
 ' Fletcher v. Fletcher, 4 Hare, 67 ; Watson v. Parker, 6 Beav., 283 ; 
 Clough r. Lambert, 10 Sim., 174 ; Hales v. Cox, 32 Beav., 118 ; Bonfield 
 r. Hassell. ib., 217. 
 
 7 Dening v. Ware. 22 Beav., 184 ; Hall v. Palmer, 3 Hare, 532. 
 
 8 14 Sim., 531. " 8 Hare, 310. 
 
 10 See Patch v. Shore, 2 Dr & Sm., 589. 
 
 11 Irons v. Smallpiece, 2 B. & Al.. 551 ; M'Culloch v. Bland, 2 Giff., 
 428. 
 
VOLUNTARY SETTLEMENTS. 55 
 
 If, however, the grantor adopts some other mode of transfer LECTUBE 
 than that which is necessary to effect a complete assignment IL 
 of the property, the transferee will not be entitled unless the 
 instrument can be construed as a declaration of trust. For 
 instance, an attempt to transfer shares or property of that 
 description by some other mode than that which is effec- 
 tual by the rules of the company or society in which the 
 shares are held is not an effectual transfer : as, for instance, 
 where the owner of shares endorsed on the certificates the 
 words, " I hereby assign, &c.," to others, but no transfer 
 was executed, he was held to have a locus pcenitentice 
 so long as the gift was incomplete. So a power-of-attorney 
 given to the trustee to transfer will not be sufficient unless 
 he acts upon it. 1 Again, where the transfer is in other res- 
 pects imperfect and does not operate on the whole property, 2 
 and if the assignment or other mode of gift or settlement 
 is incomplete and the gift is intended to take effect by it, 
 the Court will not construe it as a declaration of trust, and 
 upon this ground give effect to it, for then every imperfect 
 instrument would be made effectual by being converted 
 into a perfect trust. 3 Where a cheque was given to one 
 in trust for another, with a verbal direction that the 
 amount was to be in trust instead of a legacy given by will 
 to the proposed cestui qui trust, the declaration was held to 
 be inoperative ; 4 and where a cheque was given by the 
 owner to his young child with a declaration before wit- 
 nesses, but was afterwards retained by the owner till his 
 death, 5 no trust was created. But an instrument executed 
 as a present and complete assignment (not being a mere 
 covenant to assign at a future time) is equivalent to a 
 declaration of trust ; therefore, such an instrument will pass 
 promissory notes of the grantor, though neither specifically 
 mentioned in the deed, nor indorsed by him. 6 This case, 
 and the observations in Grant v. Grant, 1 would seem, to a 
 
 1 Milroy r. Lord, 4 D. F. J., 264 ; Antrobus v. Smith, 12 Ves.,39 ; Dillon 
 r. Coppin, 4 M. and Cr., 647 ; Searle v. Law, 15 Sim., 95 ; Cunningham r. 
 Plunket, 2 Y. and C.C.C., 245 ; Weale v. Ollive, 17 Beav., 252 ; Moore v. 
 Moore. L. R., 18 Eq., 474. 
 
 2 Woodford v. Charnley. 28 Beav.. 96. 
 
 3 Milroy r. Lord. 8 Jur. X. S.. 806 ; Richards r. Delbridge, L. R., 18 Eq., 
 11 ; Heartley r, Nicholson, L. R.. 19 Eq., 233 ; Bottle v. Knocker, 46 L. J., 
 Ch., 159 ; Baddley v. Baddley, L. R., 9 Ch. Div., 113 ; Fox v. Hawkes, L. R., 
 13 Ch. Div., 822. 
 
 4 Hughes f. Stubbs. 1 Hare, 476. ' Jones >. Lock, L. R., 1 Ch.. 25. 
 6 Richardson v. Richardson, L. R., 3 Eq., 686. ' 34 Beav., 623, 
 
5G 
 
 VOLUNTARY SETTLEMENTS. 
 
 LECTUEE 
 II. 
 
 If nothing 
 more to be 
 done by 
 settlor, 
 trust is 
 complete. 
 
 Assign- 
 ment by 
 cestui que 
 trust. 
 
 Notice. 
 
 certain extent, to modify the doctrine in Milroy v. Lord, 1 
 which, however, was a decision of the Lords Justices. And 
 if nothing more remains to be done or can be done by the 
 grantor or donor, if, as far as he is concerned, the convey- 
 ance or assignment is complete, and he has done all that 
 is necessary to be done, having regard to the nature of the 
 property, the assignment or other assurance will be valid 
 in equity. 2 Thus, an assignment of a policy of assurance 
 by deed is valid, although the grantor may retain the 
 deed and give no notice of the assignment to the office. 3 
 And where there was a voluntary assignment of a chose-in- 
 action, followed by a power-of-attorney to receive it, this 
 would seem to be sufficient to give a right in equity to 
 have the deed enforced even after the death of the assignor. 4 
 
 After a valid declaration of trust, the fact that the trust- 
 fund is found at the settlor's death mixed up with his own 
 moneys, does not affect the validity of the trust. 5 
 
 When property is vested in a trustee, the cestui que trust 
 may make a valid assignment of his beneficial interest, and 
 the assignee will have the right to enforce it by proceeding 
 against the trustee. 6 Notice to the trustee is not necessary 
 to perfect the trust, even as against a subsequent volunteer 
 who does give notice. As against the settlor an equitable 
 interest is perfectly transferred without notice. 7 But a 
 voluntary assignment of a mere expectancy in an equitable 
 interest, not communicated to the trustees, does not amount 
 to the creation of a trust. 8 If notice is not given, the 
 trustee will be justified in paying over the fund to the 
 grantor. 9 And if the settlor conveys his equitable interest 
 
 1 8 Jur., N. S., 806. 
 
 2 Sloane v Cadogan. Sugd. V. and P.. llth Ed.. App ; Edwards r. Jones, 
 1 M. and C., 238 ; Milroy r. Lord, 8 Jur, N. S., 806. 
 
 3 Fortescue r. Barnett, 3 M. and K.. 36 ; Pearson ??. Amicable Assurance 
 Co., 27 Beav., 229 ; Pedder v. Mosely, 31 Beav., 159 ; Kekewich r. Manning, 
 1 D. M. G., 187. 
 
 4 Kiddill v. Farnell, 3 Sm. and G-., 428 ; Weale r. Ollive, 17 Beav., 252 ; 
 Woodfor<? v. Charnley. 28 Beav.. 96. 
 
 5 Thorpe . Owen, 5 Beav., 224. 
 
 6 Sloane r. Cadogan, Sugd. V. and P., llth Ed., App; Kekewich v. 
 Manning, 1 D. M. G., 176; Donaldson v. Donaldson. Kay, 711: Voylet'. 
 Hughes, 2 S. and G., 18 ; Pearson v. Amicable Assurance Co.. 27 Beav., 
 229 ; He Way, 2 D. J. and S., 365 : In re King L. R., 14 C. D., 179. 
 
 7 Burn v. Carvalho. 4 M. and Cr., 690 ; Donaldson r. Donaldson. Kay, 
 711; Sloper v. Cottrell, 6 E. and B., 504 ; Gilbert r. Overton, 2 H. and 
 M., 110. 
 
 8 Meek v. Kettlewell, 1 Hare, 464 ; affd. 1 Phillips. 342 ; Penfold v. 
 Mould, L. R.. 4 Eq.. 564. 
 
 3 Donaldson v. Donaldson, Kay, 711. 
 
VOLUNTARY SETTLEMENTS. 57 
 
 to trustees, and directs them to hold it upon trust for ano- LECTURE 
 
 ther, that will be as effectual as if he had declared himself 
 
 a trustee. 1 So it will be sufficient if he directs his trustees 
 
 to stand possessed of the property upon the new trusts, 2 
 
 or even if he assigns it to the new cestui que trust without 
 
 the intervention of a trustee. 3 
 
 A voluntary settlement may be effected by a declaration what 
 of trust, by which the owner of property declares either am """ ts to 
 himself, or another person in whom the property is vested, deciaratioa 
 a trustee for the voluntary grantee. 4 A declaration of oflrusu 
 trust is not confined to any express form of words, but may 
 be indicated by the character of the instrument. 5 If the 
 settlor shows no intention of keeping a control over the 
 settled property otherwise than as a trustee for the objects 
 of his bounty, the trust will be effectual. 6 The tendency of 
 modern decisions is to construe a voluntary settlement or 
 gift inoperative, as a complete transfer of the property as 
 a declaration of trust, if this can be done consistently with 
 the previous authorities. 7 
 
 A direction by the beneficial owner of property to his 
 trustees to hold it for others than himself acted upon by 
 the trustees is valid as a declaration of trust. Thus, where 
 the cestui qui trust of money in the hands of a trustee, 
 by deed without consideration, directed part of the divi- 
 dends to be paid by him for the maintenance of an infant, 
 or stranger, and covenanted to indemnify him, and agreed 
 to allow the same out of the dividends, and the trustee 
 accepted the new trust and acted upon the deed, it was 
 held that there was a valid executed trust created which 
 could not be revoked. 8 
 
 A receipt in the form " received of A, for the use of B, 
 100, to be paid to B at A.'s death" is a sufficient declaration 
 
 1 Gilbert v. Overton. 2 H. and M., 110 
 
 2 Rycroft v. Christy. 3 Beav. 238 ; M'Fadden r. Jenkins, 1 Hare, 458 ; 
 Lambe v. Orton. 1 Dr. and S.. 125. 
 
 * Cotteen r. Missing, 1 Mad., 176; Collinson v. Pattrick. 2 Keen, 123; 
 Godsal i: Webb, ?>., 99. 
 
 4 Collinson r. Pattrick, 2 Keen. 123. 
 
 5 Kekewich r. Manning. 1 D. M. G., 176. 
 
 6 Wheatley v. Purr. 1 Keen. 551 ; Vandenberg v. Palmer, 4 K. and 
 J.. 204. 
 
 7 See Kekewich r. Manning, 1 D. M. G., 176 ; Richardson r. Richard- 
 son. L. R., 3 Eq.. 686. 
 
 8 Rycroft v. Christy, 3 Beav., 238 ; and see Bentley v. Mackay, 15 
 Beav., 12 ; M'Fadden v. Jenkyns 1 Ph., 153 ; Meekv. Kettlewell, lb., 342 ; 
 Gilbert r. Overton, 2 H. and M., 110. 
 
 8 
 
58 VOLUNTARY SETTLEMENTS. 
 
 LECTURE of trust. 1 In Grant v. Grant- Lord Romilly said, that if A, 
 II- having a sum of consols, were to say to B, " I give you that 
 sura," or to C " I have given that sum to B," that would 
 be sufficient to make A trustee for B. See also Milroy v. 
 Lard? In Morgan v. Malleson* the donor made and 
 signed a memorandum, " I hereby give and make over to 
 A a bond," specifying it, but retaining it in his own posses- 
 sion ; and it was held, that there had been a sufficient 
 
 i declaration of trust in favour of A. 5 
 
 A banker, who debits himself in his books with money 
 in favour of another, thereby declares himself a trustee of 
 it. 6 So, where a person deposits securities for money in 
 the hands of a trustee, stating that he intends them as a 
 provision for the voluntary grantee. 7 
 
 Ineffectual An assignment, or attempted assignment, by the grantor, 
 
 assign- o f property, in a way which is ineffectual to pass the in- 
 terest, will be good if the assignment is upon trust for the 
 grantee in such terms that the Court can construe it as a 
 declaration of trust by the grantor. 8 
 
 C hose-in- An assignment of a chose-in-action, with a power-of- 
 
 actwn ' attorney to enforce payment, coupled with a declaration 
 that the fund shall be held upon certain trusts for the benefit 
 of the assignor, and ultimately of the assignee, is valid. 9 
 And a declaration of trust will be valid though the 
 settlor may retain a control over the fund 10 or keep the 
 instrument declaring the trust in his possession. 11 A mere 
 expression of intention to be carried into effect by some 
 future act does not amount to a declaration of trust. 12 
 
 Subsequent If a settlor conveys his property to a trustee in such a 
 manner as to completely divest himself of it, and the 
 
 1 Moore v. Darton, 4 DeG. and Sm., 517 ; see also Paterson r. Murphy. 
 11 Hare. 88. 
 
 2 34 Beav.. 623. 3 8 Jur., N. S., 809. 4 L. R., 10 Eq., 475. 
 
 5 In re Bellasia' Trusts, L. R., 12 Eq., 218 ; Warriner r. Rogers, L. R.. 
 16 Eq., 349. 
 
 Stapleton v. Stapleton. 14 Sim., 186. 
 
 7 Watson, 284, citing Arthur c. Clarkson, 14 W. R. (Eng.), 754. 
 9 Airey v. Hall, 3 Sm and G., 315 ; Parnell v. Kingston, ib., 337. 
 
 9 Parnell t. Kingston. 3 Sm. and G., 337 ; see also Lewin, 7th Edn., 
 p. 64, and In re King, L. R., 14 C. D., 179. 
 
 10 Wheatley . Purr, 1 Keen, 551 ; Vandenberg v. Palmer, 4 K. and 
 3., 204. 
 
 11 Re Way's Trust, 2 DeG. J. S., 365 ; Fletcher v. Fletcher, 4 Hare, 
 67 ; Hope v. Harman, 11 Jur., 1097. 
 
 12 Bayley v. Boulcott, 4 Russ., 345, 
 
DEFRAUDING CREDITORS. 59 
 
 trustee subsequently disclaims, the accident of the dis- LECPUBE 
 claimer has been held not to vitiate the deed, but the 
 Court will appoint a new trustee. 1 
 
 If the person in whose favour a voluntary gift is made 
 incurs expense in respect of the property, the subject of 
 the gift, with the sanction of the donor, he may call for a 
 conveyance of it. 2 
 
 A complete voluntary settlement cannot be revoked by Settlor 
 a subsequent voluntary settlement, even if the property J^",* 
 becomes re-vested in the settlor, for he will then take it voiuuta- 
 not absolutely, but as a trustee. 3 nl J"- 
 
 According to Shiah law, a man who devotes property 
 to charitable or other uses, and transfers the proprietary 
 right therein to a trustee, cannot, at his pleasure, take it 
 back from the trustee, whom he has constituted the owner, 
 and give it to another person, unless, on the creation of the 
 trust, he has reserved to himself the right to do so in 
 express terms. 4 
 
 But if a person, without the privity of any one, and 
 without receiving consideration, makes a disposition as 
 between himself and trustees for purposes connected with 
 himself, he is merely directing the mode in which his 
 own propert} T shall be applied for his own benefit, and the 
 deed will operate merely as a power to the trustees and 
 will be revocable by the party making it, for the settlor 
 being the only cestui que trust, may direct the disposi- 
 tion of his own trust-fund. 5 
 
 If a voluntary settlement has been obtained by fraud Setting 
 or undue influence, or has been executed under a mistake, voluntary 
 it may be set aside. 6 settlement 
 
 A voluntary settlement made with the intention of Defrauding 
 defrauding creditors will be void as against them under creduors - 
 the Statute 13 Eliz., cap. 5. 7 This Statute is in force in the 
 
 1 Lewin, 7th Ed.. 64, citing Jones r>. Jones. W. N., 1874, p. 190. 
 
 2 Dillwyn r. Llewelyn, 4 DeG. F. and J., 517. 
 
 3 Xewton v. Askew, 11 Beav.. 145; Ellison v. Ellison. 6 Ves., 656; 
 Smith r. Lyne, 2 Y. & C. C. C.. 345 ; Paterson v. Murphy, 11 Hare, 88. 
 
 4 Hidait-oon-nissa r. Syud Afzul Hossein, 2 N. W. P., 420. 
 s Kanye Dass Byragee v Ramgopal Ghose. 16 S. D. A., 23. 
 
 6 Huguenin v. Barley, 14 Ves , 273 ; Forshaw r. Welsby, 30 Beav., 243 ; 
 Nanney r. Williams. 22 Beav.. 4.52 ; Davies v. Otty, 35 Beav., 208 ; Bindly 
 r. Molloney, L R., 7 Eq.,343 ; Manning v. Gill, L. R., 13 Eq., 485 ; Rujabai 
 v. Ismail Ahmed, 7 Bom.. 35. 
 
 r Gooche's case, 5 Rep.. 60, a ; and Xunn r. Wilson, 8 T. R., 521 ; 
 Doe r. Ball, 11 M. & W., 531. 
 
60 DEFRAUDING CREDITORS. 
 
 LECTURE Presidency-Towns. 1 In Sham Kissore Shaw v Coivie- it 
 IL was held to be applicable to persons other than European 
 British subjects ; and in Gnanablvii v. Srinivasa PiMaif, 
 the Court say that the principles applied in the English 
 cases may fully be made applicable to voluntary trans- 
 actions between natives. 4 But in Asimunnissa Begum v. 
 D:de, 5 Bittleston, J., seemed to think that the Statute did 
 not apply. 
 
 The absence of consideration is taken to be comprised 
 in the term 'fraudulent,' though the Act does not speci- 
 ally refer to voluntary conveyances in so many words." 
 But the extent of the value given is not taken into 
 consideration; the question is, whether the transaction was 
 one of bargain or of gift merely, and the fact that some 
 value, e.g., a covenant to indemnify against expenses, was 
 given, may be proved aliunde.' Volunteers, who are 
 creditors, tor instance, under bonds or obligations given 
 without valuable consideration, are as much entitled to 
 the benefit of the Statute as any other creditors. 8 
 To what An assignment of property which cannot be taken in 
 Sntm" 7 execution is not, within the words of the Statute, an 
 applicable, assignment of property with the intent to delay creditors, 
 inasmuch as creditors could never have had execution or 
 satisfaction out of such property. 9 An assignment of 
 choses -in-action is not within the Statute during the life- 
 time of the assignor, except as regards such as can be 
 taken in execution. 10 
 
 Question The question as to whether the assignment was with the 
 c" intent to hinder, dela} 7 , or defraud creditors, is one of 
 fact; circumstances of suspicion do not amount to proof of 
 fraud, 11 even when the conveyance is absolute and the 
 grantor remains in possession, though this is generally 
 
 1 See Stokes's Older Statute. In trod., iv. 
 
 2 2 Ind. Jur.. 7. 3 4 Mad. H. C.. 84. 
 
 4 And see Soodheekeena Chowdrain r. Gopee Mohun Sein. 1 W. R., 
 41 ; Judah r. Mirza Abdool Kurreem. -22 \V. II.. 60. 
 
 5 6 Mad. H. C.. 474. 
 
 6 Doe r. Manning. 9 East, 59 ; Doe v. Rusham, 17 Q. B.. 723 ; Willats 
 . Busby, 5 Beav., 193. 
 
 7 Pott v. Todhunter, 2 Coll.. 76 ; Townend r. Toker. L. R.. 1 Ch . 446. 
 Adames r. Hallett. L. R., 6 Eq., 468. 
 
 Rider r. Kidder. 10 Ves.. 360: Norcutt r. Dodd, Cr. and Ph.. 100; 
 Barrack i: McCulloch, 3 K. and J., 110 ; Stokoe r. Cowan. 29 Beav.. 637. 
 
 10 Xorcutt r. Dodd. Cr. and Ph.. 100. 
 
 11 Martindale v. Booth. 3 B. and Ad.. 498 ; Hale r. Saloon Omnibus Co.. 
 4 Drew., 492. 
 
DEFRAUDING CREDITORS. 61 
 
 considered to be an indication or badge of fraud. 1 But LECTUBE 
 where the conveyance is not absolute, to take effect imme- 
 diately, as in the case of mortgage, and the mortgagee is 
 not to take possession until a default in the payment of 
 the mortgage-money, then, as the nature of the transaction 
 does not call for any ti'ansmutation of possession, the 
 absence of such transmutation seems to be no evidence 
 of fraud. 2 If it be found as a fact that there was no 
 fraud, the conveyance will, as a rule, be good under the 
 Statute 3 
 
 When the assignment is not absolute, but by way of AssiVn- 
 mortgage, as the retention of the possession by the mort- " V 1 ^" t "jy 
 gagor until default in payment is in accordance with the mortgage, 
 deed, the assignment is not fraudulent. 4 
 
 A valuable consideration will not support a conveyance if Valuable 
 there be mala fides, and an intent to delay or defraud ere- tiTn'not*' 
 ditors. Even an ante-nuptial marriage settlement may be support 
 set aside. Of course, those who undertake to impeach for ^' en mala 
 mala fides a deed which has been executed for valuable 
 consideration, have a task of great difficulty to discharge. 5 
 So, if the object of the conveyance be to place the property 
 beyond the reach of process, or to defraud future creditors, 
 it will be void, though it may be, or may purport to be, 
 for value. 6 An assignment by a prisoner, on the eve of Sale to de- 
 trial for felony, of all his effects upon certain trusts, is feat Crown * 
 within the Statute, and void as against the Crown ; 7 but 
 otherwise, if made bond fide and for value, for instance, to 
 secure an existing debt. 8 
 
 A sale of property for good consideration is not fraudu- Assign- 
 lent and void, merely because it is made with the intention l n nt '" 
 to defeat the expected execution of a judment-creditor. 9 one credi- 
 And a bond fide assignment for the benefit of creditors tor - 
 
 1 Twyne's case. 3 Rep., 80 ; Martindale v. Booth. 3 B. & Ad., 498. 
 
 - 1 Sin. L. C., 15. 
 
 s Marfcindale r. Booth, 3 B. and Ad., 498 ; Freeman v. Pope, L. R., 
 6 Ch.. 538. 
 
 4 Edwards v. Harben. 2 T. R.. 587. 
 
 5 Harman v. Richard. 10 Hare. 89 ; Strong . Strong. 18 Beav., 408 ; 
 Bott r. Smith. 21 Bear.. 511 ; Columbine v. Penhall. 1 Sm. and G., 228; 
 Acraman r. Corbett, 1 J. & H , 410 ; Bulmer r. Hunter, L. R., 8 Eq., 46. 
 
 6 Barling r. Bishopp. 29 Beav.. 4 17; Reese River Co. r. Attwell. L.R., 7Eq., 
 347 ; Blenkinsopp r. Blenkinsopp. 1 D. M. G.. 495. See. however. Darvill 
 r. Terry. 6 H. and N.. 807 ; Hale r. Saloon Omnibus Co.. 4 Drew., 492. 
 
 7 Saunders r. Watson. 4 Giff., 179. 
 
 Chowne r. Baylis. 31 Beav., 351. 
 9 Wood r. Dixie. 7 Q. B. , 892. 
 
62 
 
 DEFRAUDING CREDITORS. 
 
 LECTURE generall 
 
 
 within 
 Statute. 
 
 Indebted- 
 ness of 
 
 settlor. 
 
 is not within the Act, though made with the 
 intent to delay an individual creditor. 1 But an absolute 
 assignment, in consideration of a past debt, of property of 
 much greater amount than the debt, by a person in a 
 dying state, is void as against other creditors under the 
 Statute. 2 The Statute only mentions feigned and fraudu- 
 ^ en * ^ s anc ^ conveyances. But, however, voluntary con- 
 veyances or settlements have been held to be within the 
 Statute if made to hinder or defraud creditors. The mere 
 fact that the settlement is voluntary will not invalidate 
 it. The principle is this : The language of the Act being, 
 that any conveyance of property is void against creditors 
 if made with intent to defeat, hinder, or delay creditors, 
 the Court is to decide in each particular case whether, on 
 all the circumstances, it can come to the conclusion, that 
 the intention of the settlor in making the settlement was 
 to defeat, hinder, or delay his creditors. 3 Nor will the fact 
 that the settlement comprises all the settlor's property be 
 sufficient ground for setting it aside. 4 And extrinsic evi- 
 dence is admissible to show, that valuable consideration 
 was in fact given for a deed which appears on the face of 
 it to be voluntary, 5 or that the settlement was bond fide, 
 though the practice of framing deeds so as not to show the 
 real nature of the transaction carried out by them ought 
 to be discouraged. 6 The indebtedness of the settlor at 
 the time of the settlement is usually relied upon as 
 showing the intent to delay and defraud creditors ; but 
 it is only one of the circumstances which the Court has 
 to consider. 7 The indebtedness need not be to the extent 
 of insolvency, though this was formerly held to be neces- 
 sary. 8 But this is not the law now. " With respect to vo- 
 luntary settlements," said Wood, V. C., 9 " the result of the 
 
 1 Pickstock v. Lyster. 3 M. & S.. 371 ; Harland v. Binks, 15 Q. B., 713 ; 
 Evans r. Jones, 3 H. & C., 423. 
 
 2 Stokoe v. Covran. 7 Jur.. N. S.. 901. As to the right of a creditor to 
 follow the assets of a deceased Hindu into the hands of a purchaser for 
 value, see Jamyalram Ramchandra r. Parbudhas Hathi. 9 Bom.. 116. 
 
 3 Thompson v. Webster. 4 Drew. 632 : Holloway c. Millard, 1 Madd., 
 414 ; Holmes v. Penney, 3 K. & J., 90. 
 
 4 Alton r. Harrison. L. R.. 4 Ch.. 622: Allen r. Bonnett, L. R., 5 Ch., 
 677; Expartc Games, L. R., 12 C. D.. 314. 
 
 s Gale r. "Williamson. 8 M. and AV.. 405. 
 Thomson r. Webster, 4 DeG. and J., 600. 
 
 7 Richardson r. Small wood. Jac.. 556. 
 
 8 Lush v. Wilkinson. 5 Ves., 384. 
 
 9 Holmes r. Penney. 3 K. and J.. 90 : Crosslcy r. Elsworthy, L. R,. 
 12 Eq., 158 ; Taylor r. Coenen, L. R.. 1 Ch. Div., 636. 
 
DEFRAUDING CREDITORS. 63 
 
 authorities is, that the mere fact of a settlement being volun- LECTCBB 
 tary is not enough to render it void against creditors : but 
 there must be unpaid debts which were existing at the 
 time of making the settlement, and the settlor must have 
 been at the time not necessarily insolvent, but so largely 
 indebted as to induce the Court to believe that the inten- 
 tion of the settlement, taking the whole transaction to- 
 gether, was to defraud the persons who, at the time of 
 making the settlement, were creditors of the settlor. 1 
 
 On the other hand, although indebtedness to this extent 
 may not exist, and the property of the grantor, not subject 
 to the conveyance, may be enough to pay his debts existing 
 at the time of the conveyance, it will not necessarily be 
 good. " If," said Lord Westbury, C., 2 " the debt of the 
 creditor by whom the voluntary settlement is impeached 
 existed at the date of the settlement, and it is shown that the 
 remedy of the creditor is defeated ordelayed by the existence 
 of the settlement, it is immaterial whether the debtor was or 
 was not solvent after making the settlement. But if a 
 voluntary settlement or deed of gift be impeached by sub- 
 sequent creditors whose debts had not been contracted at the 
 date of the settlement, then it is necessary to show either 
 that the settlor made the settlement with express intent ' to 
 delay, hinder, or defraud creditors,' or that, after the settle- , 
 ment, the settlor had no sufficient means or reasonable 
 expectation of being able to pay his then existing debts, 
 that is to say, was reduced to a state of insolvency ; in 
 which case the law infers that the settlement was made 
 with intent to delay, hinder, or defraud creditors, and is 
 therefore fraudulent and void. It is obvious that the fact 
 of a voluntary settlor retaining money enough to pay the 
 debts which he owes at the time of making the settlement, 
 but not actually paying them, cannot give a different 
 character to the settlement or take it out of the Statute. 
 It still remains a voluntary alienation or deed of gift, 
 whereby in the event the remedies of creditors are delayed, 
 hindered, or defrauded." 
 
 The mere fact that the settlement has in the event pre- 
 vented a creditor, who was such when it was made, from 
 
 1 See also Skarf r. Soulby, 1 Mac. and G., 375 ; Thompson v. Webster, 
 4 DeG. and J., 600; affd.. 7 Jur. ,N. S.), 531; Kent r. Riley, L. R., 
 14 Eq.. 190 ; Gnanabhai r. Srinivasa Filial, 4 Mad. H. C., 84. 
 
 2 Spirett r. Willows, 3 D. J. and S , 283* 
 
64 DEFRAUDING CREDITOR. 
 
 LECTURE obtaining payment of his debt, is not of itself sufficient to 
 
 n - enable him to set it aside. 1 
 
 Secured Although the settlor may be indebted, yet if the debts 
 Uebu. are secured, 2 or if they do not exceed such ordinary debts 
 as ever}' person must incur, as for instance, for ordinary 
 household expenses, and if the settlor has the means of 
 paying them, 3 the settlement will not be void, and d fortiori 
 the settlement will be good, if the settlor was solvent at 
 the time he made it. 4 
 
 Considera- A conveyance, if otherwise within the Statute, will not 
 to th'iVd be taken out of it merely because the consideration for 
 persou. it is not for the benefit of the grantor, but of another 
 person. Thus, where a person in insolvent circumstances 
 sold his business in consideration, in part, of an annuity 
 to his wife, it was held that the wife was not entitled to 
 the annuity as against her husband's creditors. 5 
 Voluntary A merely voluntary settlement would seem to be void 
 on'i'vvoid 1 on ly as against existing creditors, 6 but subsequent creditors 
 as against may sue to set it aside if any of the antecedent debtors 
 ex "d'" lg remain unsatisfied. 7 If it can be shown that the settlor, 
 though indebted at the time he made the settlement, has 
 since paid every debt, it is difficult to say that he executed it 
 with an intention to defeat or delay creditors, since his subse- 
 quent payment shows that he had not such an intention. 8 
 Unless A deed, in fact fraudulent, and executed expressly to 
 
 hinder and delay future creditors, may be impeached by 
 them, though there were no creditors at the date of the 
 deed, or they have subsequently been paid. And it may be 
 set aside without proof of actual intention to defeat or 
 delay creditors, if the circumstances are such that it would 
 necessarily have that effect. 9 
 
 1 Freeman c. Pope. L. R., 5 Ch., 538. See also Crossly v. Elsworthy, 
 L. R.. 12 Eq., 158 ; Mackay v. Douglas. L. R.. 14 Eq.. 106; Cornish v. 
 Clark. L. R.. 14 Kq.. 184 ; Azim-nn-Nissa Eegum r. Dale. 6 Mad. H. C.. 469. 
 
 2 Stephens v. Olive. 2 Bro. C. C., 90 ; Skarf c. Soulby. 1 Mac. & G., 375. 
 
 3 Skarf r. Soulby, 1 Mac. & G., 375 ; Lush r. Wilkinson, 5 Ves., 387 ; 
 Kent r. Riley. L. R.. 14 Eq.. 190. 
 
 4 Kent v. Riley, L. R.. 14 Eq.. 190. 
 
 5 French r. French, 6 D. M. G., 95 ; Xeale r. Day. 4 Jur., Jf. S., 1225. 
 
 * Kidney r. Coussmaker. 12 Ves., 136 ; Townsend r. Westacott, 4 Beav., 
 68 ; Spirett r. Willows. 3 DeG. J. and S., 293. 
 
 7 Richardson r. Smallwood, Jac.. 558 ; Ede . Knowles. 2 Y. and C. C. C., 
 172 ; Jenkyn c. Vaughan. 3 Drew., 419 ; Freeman r. Pope, L. R., 5 Ch., 538. 
 
 8 Jenkyn r. Vaughan, 3 Drew., 425. 
 
 9 Barling r. Bishopp. 29 Beav., 417 : Reese River Company r. Atwell, 
 L. R., 7 Eq., 347 ; Ware r. Gardner, L. R., 7 Eq., 317 ; Freeman v. Pope, 
 L. R., 5 Ch., 538. 
 
INSOLVENCY. C5 
 
 It is not necessary that a creditor should have obtained LECTUBE 
 a judgment, lien, decree or charging order; without any 
 of these he may sue to impeach the validity of a fraudulent 
 conveyance. But he must have obtained such a judgment, 
 .V'c., before he can have execution against the property 
 comprised in the deed. 1 
 
 The settlement is only void to the extent necessary to How far 
 deal with the estate for the satisfaction of the creditors, v * f id lement 
 the creditors of the settlor, 2 and is good as against the 
 grantor and his assignees, 3 parties who assent to, and concur 
 in, it ; 4 such as volunteers claiming under him, for instance, 
 devisees 5 and strangers. 6 
 
 In all other respects it is good, and will not be set aside 
 merely because it is voluntary. 7 
 
 If the conveyance or settlement be voidable, the volun- 
 tary grantee may, before it is avoided, make a valid transfer 
 to a purchaser for value. 8 
 
 The Insolvent Act 11 and 12 Viet., cap. 21, provides, insolvent. 
 section 9, that if any person who would be deemed a trader Act) s< 9 * 
 liable to become bankrupt, with intent to defeat or delay his 
 creditors, shall make any fraudulent gift, grant, conveyance, 
 delivery, or transfer of any of his lands, tenements, money, 
 goods, or chattels, such an act may be deemed an act of 
 insolvency on which his creditors may petition. 
 
 Section 24 of the Insolvent Act provides, " that if any in- Section 24. 
 solvent who shall file his petition for his discharge under the 
 Act, or who shall be adjudged to have committed an act of 
 insolvency, shall voluntarily convey, assign, transfer, charge, 
 deliver, or make over any estate, real or personal, security 
 for money, bond, bill, note, money, property, goods, or 
 effects whatsoever to any creditor, or to any other person, 
 in trust, for or to, or for the use, benefit, and advantage of 
 any creditor, every such conveyance, assignment, transfer, 
 charge, delivery, and making over, if made when in in- 
 
 1 Reese River Company v. Atwell. L. R.. 7 Eq., 347 ; Cohnan r. Croker, 
 1 Ves.. J.. 161 : Goldsmith v. Russell, 5 D. M. G., 547 ; Collins v. Burton, 
 4 D. and J.. 612. 
 
 2 Curtis v. Price. 12 Ves., 89. 
 
 8 Robinson r. M'Donnell, 2 B. and Aid., 134. 
 
 4 Olliver v. King, 2 Jur., N. S., 312. 
 
 5 Villiers r. Beaumont. 1 Vern., 100. 
 
 6 Bessey r. "Windham, 6 Q. B., 166. 
 
 7 Bill r. Cureton, 2 M. and K., 503 : De Hoghton r. Money, L. R., 
 1 Eq.. 1.54. 
 
 8 Morewood v. South Yorkshire Railway Company, 3 H. and N., 798 ; 
 Daubeny r. Cockburn, 1 Her., 626. 
 
 9 
 
66 FRAUDULENT PREFERENCE. 
 
 LECTURE solvent circumstances, and within two months before the 
 II- date of the petition of such insolvent, or of the petition 
 on which an adjudication of insolvency may have proceed- 
 ed, as the case may be, or if made with the view or inten- 
 tion, by the party so conveying, assigning, transferring, 
 charging, delivering, or making over, of petitioning the 
 said Court for his discharge from custody under this Act, or 
 of committing an act of insolvency, shall be deemed, and is 
 hereby declared to be, fraudulent and void as against the 
 assignees of such insolvent." 
 
 To constitute a fraudulent preference, two things must 
 concur 1st, the act of preference must be voluntary on the 
 part of the debtor ; 2ndly, it must have been done by him 
 when in such a state of insolvency, as that, it may or 
 must be inferred, that bankruptcy was then in his consider- 
 ation. And therefore when an assignment or conveyance 
 is made by a debtor to a creditor upon the demand of the 
 latter for payment or security, it will not be fraudulent. 1 
 Defrauding The Statute 13 Eliz., cap. 5, with which we have been 
 purchaser, Dealing, re lates to creditors. Another Statute of the same 
 reign, which applies in India to the same extent as 13 Eliz., 
 cap. 5 2 (27 Eliz., cap. 4), made perpetual by 30 Eliz., cap. 18, 
 section 3, relates to purchasers. This Statute, in substance, 
 enacts, that all conveyances, grants, charges, leases, estates, 
 incumbrances, and limitations of use or uses, of, in, or out 
 of any lands, tenements, or other hereditaments whatsoever, 
 made for the intent to defraud and deceive such person or 
 persons, bodies politic or corporate, as had purchased, or 
 should purchase, in fee-simple, fee-tail, for life, lives or 
 years, the same lands, tenements, or hereditaments, or any 
 part thereof, or to defraud and deceive such as had or 
 should purchase any rent or commodity in or out of the 
 same or any part thereof, shall be deemed or taken only as 
 against that person and persons, bodies politic and corpo- 
 rate, his and their representatives, and persons claiming 
 under them for good consideration, utterly void, frustrate, 
 and of none effect, any pretence, colour, feigned consider- 
 ation, to the contrary notwithstanding. 
 
 The Statute (s. 4) does not extend to defeat any con- 
 
 1 E,rj>arte Tempest. L. R., 10 Eq.. 648; affd., L. R.. 6 Ch., 70. As to a 
 loan made on the eve of insolvency, see In re Bungseedhur Khettry. I. L. R n 
 2 Calc., 359 ; and as to a pledge of goods by an insolvent and re-delivered 
 to him on commission sale, see In re Murray. I. L. It., 3 Calc., 68. 
 
 2 See ante, p. 59. 
 
DEFEATING SETTLEMENT. 67 
 
 veyance, assignment of lease, assurance, grant, charge, lease, LECTURE 
 estate, interest or limitation of use, of, on, or out of any n - 
 lands, &c., for good consideration and bond fide. 
 
 The Statute does not extend to settlements of personal statute 
 estate, 1 being in this respect unlike the 13 Eliz., cap. 5 ; and extend to 
 therefore a voluntary settlement of chattels, personal, will personal 
 not be defeated by a subsequent sale. 2 Mortgagees 3 and *" 
 lessees 4 are purchasers pro tanto ; but a judgment-creditor 
 is not, and has, therefore, no title on that ground to set 
 aside a prior voluntary settlement. 5 
 
 The settlor himself cannot defeat the settlement by an when 
 admission of the receipt of money, 6 and if he has con- ^ eltlor ma y 
 tracted to sell, the contract may be specifically enforced settlement, 
 against him ; 7 but a Court of Equity will not, as against an 
 unwilling purchaser, assist a vendor to defeat a prior 
 voluntary settlement made by himself, though it will if 
 the purchaser is willing to complete on having a good 
 title, 8 or if there has been part performance by the pur- 
 chaser receiving possession and payment of part of the 
 purchase-money; 9 and notice to the purchaser of the settle- 
 ment is immaterial. 10 But the purchaser may sue the vendor 
 and trustees and cestius que trustent to enforce specific 
 performance, 11 though he cannot require the voluntary deed 
 to be delivered up to him to be cancelled. 12 The voluntary 
 grantee has no equity to the purchase-money as against the 
 vendor. 13 
 
 To avoid a prior conveyance, however, to a volunteer, Subsequent 
 the subsequent purchase must be for value, and the con- {^us^be" 
 sideration must not be grossly inadequate, or a presumption for value, 
 
 1 Jones r. Croucher. 1 S. and S.. 315. 
 
 - Bill r. Curetoii. ~2 M. and K., 503 ; M'Donnell r. Hesilrige, 1C Beav., 
 346 ; Meek r. Kettlewell, 1 Hare. 473. 
 
 3 Doc v. Webber, 1 A. and K. 733 ; Dolphin v. Aylward, L. R., 4 H. L., 
 486 ; Ede v. Knowles, 2 Y. and C. C. C., 173. 
 
 4 Goodright r. Moses. 2 W. Bl., 1019. 
 
 5 Beavan r. Lord Oxford, 6 D. M. G.. 507. 
 8 Doe r. Webber, 1 A. and E.. 733. 
 
 7 Buckle v. Mitchell, 18 Ves., 100 ; Dakin v. Whimper, 26 Beav., 568. 
 See Azimunnissa Begum ;. Dale, 6 Mad. H. C.. 474. 
 
 8 Smith r. Gaiiaud. 2 Mer.. 123 ; Clarke i: Willott, L. R., 7 Ex., 313 ; 
 Peter v. Nicholls. L. R., 11 Eq.. 391. 
 
 9 Peter r. Xicholls. L. R.. 11 Eq., 391. 
 
 10 Buckle r. Mitchell, 18 Ves.. 100 ; Doe v. Manning. 9 East, 59. 
 
 11 Daking r. Whimper, 26 Beav., 568 ; Townend v. Toker, L. R., 1 Ch., 
 447. 
 
 13 De Hoghton v. Money, L. R., 1 Eq., 154. 
 w Dakin r. Whimper, 26 Beav,, 568. 
 
68 REVOCATION OF SETTLEMENT. 
 
 LECTURE of fraud and collusion will arise. 1 When the subsequent 
 n< conveyance is a mortgage, the voluntary grantees will be 
 entitled, subject to the mortgage. 2 There is an exception 
 to the rule in the case of charities, for a voluntary endow- 
 ment of a charity will not be defeated by a subsequent 
 conveyance for value. 3 
 
 How far The operation of the Statute is to destroy the estates 
 voluntary crea ted by the voluntary conveyance as against the pur- 
 defeated, chaser, who cannot, therefore, be affected by the trusts of 
 those estates. 4 But the voluntary settlement will be 
 defeated so far only as may be necessary to give effect 
 to the subsequent conveyance. 5 A purchaser from the heir 
 or devisee of a person who has made a voluntary settle- 
 ment is not entitled to set aside the settlement. 6 
 Personalty If personalty be settled on certain specified trusts in 
 settled. favour of volunteers, and the trusts are acted upon, the 
 settlement cannot be altered by any subsequent settlement. 7 
 Subsequent As a person claiming under a will is a volunteer, a vo- 
 Wl11 - luntary settlement will not be revoked by a subsequent 
 will disposing of the settled property, even if the object is 
 the payment of the settlor's debts ; 8 And a purchase in the 
 name of a wife or child is not within this Statute. 9 
 Conveyan- The 5th section of the Statute 27 Eliz., cap. 4, in sub- 
 powerof stance declares, that if any person shall make any convey - 
 revocation. ance, gift, grant, devise, charge, limitation of use or assurance 
 of, in or out of any lands, tenements, or hereditaments, 
 with any clause of revocation, determination, or alteration 
 at his will or pleasure, and after such conveyance, gift, &c., 
 shall convey or charge lands, &c., for money or other good 
 consideration the said first conveyance or grant not being 
 revoked the said former conveyance, grant, &c., shall, as 
 against those claiming under the latter conveyance, &c., be 
 deemed void. 
 
 1 Doe r. Routledge, Cowp., 705 ; Metcalfe r. Pulvertoft, 1 V. & B., 184. 
 
 2 Hales v. Cox, 32 Beav., 118. 
 
 3 Corporation of Newcastle v. The Attorney-General. 12 C. and F., 
 402. 
 
 4 Currie v. Nind, 1 M. and Cr., 17. 
 
 s Croker v. Martin, 1 Bligh., N. S., 573 ; Dolphin v. Aylward, L. K., 
 4 H. L., 486. 
 
 6 Doe v. Rusham, 17 Q. B.. 723 ; Lewis v. Rees. 3 K. and J.. 138. 
 
 7 Newton i: Askew, 11 Beav., 145 ; Rycroft r. Christy. 3 Beav., 238. 
 
 8 Bale i: Newton, 1 Vern., 464 ; Jeffreys r. Jeffreys. Cr. and Ph., 138. 
 
 9 Christy v. Courtenay, 13 Beav., 96 ; Barrack t: M'Culloch, 3 K. & J., 
 110 ; Drew v. Martin, 2 H. and M., 130. 
 
CONSIDERATION. 69 
 
 The Act does not apply to mortgages made bond fide and LECTURE 
 for value (s. 6). It avoids the first conveyance, though 
 to a purchaser for value, 1 and cannot be evaded by making Eff ec t of 
 the exercise of the power apparently conditional, as that statute. 
 the consent of a third person appointed by the grantor 
 shall be obtained. 2 
 
 The reservation of an unlimited power of leasing is in 
 effect a general power of revocation. So, a power to mort- 
 gage, unless it be limited to a specified sum upon an estate 
 of much greater value. 4 
 
 A settlement with power of revocation is void as against 
 a subsequent purchaser, although the settlor has released 
 or extinguished the power previously to the sale ; 5 unless 
 the release was for value, the settlement containing the 
 power being also for value. 6 
 
 Conveyances or settlements will not be void as against Valuable 
 purchasers or creditors if supported by a valuable consi- i n n sldera ~ 
 deration, except in cases where a power of revocation is 
 reserved to the settlor, the mere quantum of consideration. 
 is in general not material. 7 
 
 Marriage, according to English law, is a valuable consi- Marriage, 
 deration, and will support a settlement. 8 Though, as a 
 general rule, a settlement after marriage even upon a wife 
 or children is voluntary, there being merely a moral con- 
 sideration which will not support a promise or settlement. 9 
 But an additional portion received by the wife after the 
 marriage will support a post-nuptial settlement on her and 
 her children. 10 
 
 A release by a wife of the past income of property 
 settled to her separate use, or her concurrence in a parti- 
 cular settlement, 11 or the release of her jointure, 12 or right 
 
 1 Hungerford r. Earle, 2 Vern., 261. 
 
 2 Standen v. Bullock, 3 Rep., 82, b; Lavender i: Blackston, 3 Keb., 
 627. 
 
 3 Lavender r. Blackston, 3 Keb., 527. 
 
 4 Jenkins r. Keymis, 1 Lev., 150. 
 
 5 Bullock r. Thome, cited in Sag. V. & P., 722. 
 
 6 Sug. V. and P., 722. 
 
 7 Townend v. Toker, L. R., 1 Ch., 446 ; Bayspoole v. Collins, L. R., 
 6 Ch.. 228. 
 
 8 Ford v. Stuart. 15 Beav., 499 ; Fraser r. Thompson, 4 D. and J., 661. 
 
 9 Jeffrey r. Jeffrey, 1 Cr. and Ph., 138 ; Moore v. Crofton, 3 J. and 
 Lat.. 438. 
 
 10 AVard r. Shallett, 2 Ves., 18 ; Ramsden v. Hvlton, ibid, 308. 
 
 11 Harman r. Richards, 10 Hare. 81, 
 
 12 Ball r. Burnford, Prec. Ch., 113. 
 
70 EVIDENCE TO PROVE CONSIDERATION. 
 
 LECTURE of dower, 1 or a charge by her upon her own estate, 2 will 
 IL support a settlement by her husband. So the payment of 
 the settlor's debts by a third person is a good consideration 
 for a settlement upon his wife and children, 3 and a loan 
 to him will be a good consideration for a settlement upon 
 himself for life with remainder to his children. 4 
 
 So if a person incur expenses on the faith of a settle- 
 ment, and in addition enters into a covenant to indemnify 
 the settlor against certain incumbrances, there will be a 
 good consideration for a settlement. 5 
 
 The release or surrender of a voluntary bond is a good 
 consideration to support a substituted bond, unless with a 
 fraudulent design, as by an insolvent to substitute an avail- 
 able security for one that could not avail against creditors. 6 
 Settlements founded upon immoral considerations are 
 of course void. See ante, p. 48. 
 
 Extrin- A settlement in form voluntary may be shown from 
 S1C evi ~ extrinsic evidence to have been made for valuable con- 
 to sideration. 7 And, if necessary, an inquiry may be directed 
 
 show con- as t o whether the settlement was founded on any and what 
 valuable consideration, for the consideration need not actu- 
 ally appear. 8 
 
 In Bayspoole v. Collins? the owner of property, which 
 was worth, beyond an incumbrance to which it was sub- 
 ject, about 1,300, was persuaded by A, a relative of his 
 wife, to make a post-nuptial settlement of it on his wife 
 and children. As an inducement to do this, A lent him 
 150 on his promissory note. The settlement was execut- 
 ed, but no mention was made in it of the advance of 
 150. It was held, that the loan was a sufficient valuable 
 consideration to support the settlement against a subse- 
 quent mortgagee of the settlor. 
 
 A conveyance to a trustee in trust to pay the debts of 
 the grantor, although it may be void as regards them, will, 
 
 1 Jones v. Boulter, 1 Cox. 288. 
 
 2 Lady Arundel v. Phipps, 10 Ves.. 139. 
 
 3 Holmes r. Penny, 3 K. and J., 90 ; Scott v. Scott, 4 H. L. Cas., 106.3. 
 
 4 Thompson v. Webster, 7 Jur., N. S.. 531. 
 
 5 Townend t>. Toker, L. R., 1 Ch., 446. 
 
 6 Exparte Berry, 19 Ves.. 218. 
 
 7 Pott v. Todhunter, 2 Coll.. 76. 
 
 8 Kelson v. Kelson. 10 Hare, 385 ; Gully v. The Bishop of Exeter. 
 2 Moo. and P.. 266 : Mildmay's case. 1 Rep., 176 ; Leifchild's case, L. R., 
 1 Eq., 231 ; Tull r. Parlett, M. and M., 472. 
 
 L. K., 6 Ch., 228. 
 
SETTING ASIDE SETTLEMENT. 71 
 
 nevertheless, entitle the assignee to take proceedings against LECTURE 
 persons in possession of the property which is assigned. 1 
 
 Where a settlement or conveyance, whether by transfer settle^" 
 of property or declaration of trust respecting it, is effectual, >ent not 
 and not open to objection upon any of the foregoing *tafnsf e "* 
 grounds, the grantor cannot avoid it, nor will the Court grantors, 
 set it aside. Although the Court will not assist the comple- 
 tion of voluntary deeds, it does not lay down, as a rule, that 
 they are always void ; the mere alteration of intention is 
 not sufficient to induce the Court to interfere and cancel 
 an instrument which was fully understood and deliberately 
 executed by the grantor. 2 
 
 And a settlement will not be revoked though the trus- 
 tees of the property re-convey it to the grantor, 3 in which 
 case they will be guilty of a breach of trust. 4 
 
 So the settlement will remain in force, though the settled 
 property may come back into the hands of the settlor. 5 
 
 In Forshavj v. Welsby* it was held, that a voluntary Voinntnrr 
 settlement containing no power of revocation, made by a j*** 1 
 person in expectation of death, ought to be set aside at his t!onfor 
 instance, as it was not intended to be operative in the event death, 
 of his recovery. Each case, however, must depend upon 
 its own circumstances. The absence of a power of revo- 
 cation in voluntary settlements is an important circum- 
 stance in considering them. When they are not intended 
 to be irrevocable, such a power should be inserted. Where 
 it is wanting, the argument is usually urged that the 
 non-insertion is contrary to the intention of the settlor, 
 particularly where the settlement is for the benefit of per- 
 sons to be ascertained at a future time. 7 
 
 The party taking a benefit under a voluntary settlement 
 or gift containing no power of revocation has thrown upon 
 him the burden of proving that there was a distinct 
 intention on the part of the donor to make the gift irre- 
 
 1 Glegg v. Rees, L. R . 7 Ch.. 71. 
 
 2 Bill v. Cureton. 2 M. aud K, 503 ; Toker v. Toker, 31 Beav., G29 ; affd., 
 3 DeG. J. and S.. 487 ; Shafto v. Adams. 4 Giff.. 492. 
 
 3 Ellison v. Ellison. 6 Ves., 656 ; Smith r. Lyne, 2 Y. and C. C. C., 345 ; 
 Paterson r. Murphy, 11 Hare, 88. 
 
 4 M'Donnell v. Hesilrig, 16 Bear.. 346. 
 
 5 Smith r. Lyne, 2 Y. and C. C. C., 345 ; Gilbert v. Overton, 2 H. and 
 M.. 110. 
 
 6 30 Beav., 243 : and see Phillips v. Mailings, L. R., 7 Ch., 244. 
 
 7 Forshaw v. Welsby. 30 Beav., 243: and see Nanney -c. Williams, 
 22 Beav.. 452 ; Hall v. Hall, L. R., 8 Ch., 430. 
 
72 
 
 RECTIFYING SETTLEMENT. 
 
 Rectify- 
 Set 6 " 
 
 Enforce- 
 ment. 
 
 LECTURE vocable : and where the circumstances are such that the* 
 
 IJ - donor ought to be advised to retain a power of revocation, 
 
 it is the duty of a solicitor to insist upon the insertion of 
 
 such a power, and the want of it will, in general, be fatal 
 
 to the deed. 1 
 
 The Court will not rectify a voluntary settlement at 
 ^ ne instance either of the grantor or of the grantee, unless 
 there has been a mistake common to all parties : 2 and 
 where it does not express the intention of the parties, 
 and is impeached, it cannot be reformed except with the 
 consent of the donor. 3 
 
 The mere retention of the instrument of settlement or gift 
 by the settlor is immaterial, if there is nothing to show 
 that the settlor did not intend it to operate immediately. 4 
 
 So is its destruction and the non-communication of its* 
 contents to the trustees or cestui que trust, 5 and if found 
 cancelled among the papers of the grantor after his death, 
 it will be enforced against his representatives upon the 
 presumption that it was improperly cancelled. 6 
 
 An instrument vesting property in trustees for the 
 benefit of the grantor for his life, and after his decease, 
 for the benefit of other persons, with a power of revocation, 
 is valid, and is not testamentary. 7 
 
 A settlement complete and valid, having regard to the 
 abovenientioned rule, is binding on the settlor or grantor, 
 and on his heirs and legal representatives and devisees, 8 
 and persons claiming under them though for value. 9 
 
 A person who takes by title paramount to the settle- 
 ment, who does no act to repudiate it, will, in general, be 
 considered to have acquiesced in it. 10 
 
 All who claim under the instrument or trust are enti- 
 tled to the benefit of it, and a settlement in favour of 
 
 On whom 
 binding. 
 
 1 Coutts . Ackworth, L. R., 8 Eq.. 558. See Prideanx v. Lonadale, 
 1 D. J. and S., 433 ; Woollaston v. Tribe, L. R., 9 Eq., 44. 
 
 2 Bentley v. Mackay, 31 Beav., 143 ; Broun r. Kennedy, 33 Beav., 
 133 ; Thompson v. Whitmore, 1 J. and H., 268 ; Lister r. Hodgson, L. R,, 
 4 Eq., 30. 
 
 3 Phillipson v. Kerry. 32 Beav.. 628. 
 
 4 Doe v. Knight, 5 B. and C., 671. 
 
 5 Fletcher v. Fletcher, 4 Hare, 67 ; Re Way, 2 D. J. andS., 365. 
 
 6 Sluysken v. Hunter. 1 Mer., 40. 
 
 7 Tompson r. Brown, 3 M. and K.. 32. 
 
 8 Jeffreys v. Jeffreys. Cr. and Ph., 138 ; Hales v. Cox, 32 Beav., 118 ; 
 Gilbert v. Overton. 2 H. and M., 110. 
 
 9 Lewis r. Rees. 3 K. and J.. 132 ; Doe r. Rusham, 17 Q. B., 723. 
 10 Thompson v. Finch, 22 Beav., 316. 
 
 
REVOCATION OF CREDITORS* DEEDS. 73 
 
 unborn children is, according to English law, binding and LECTUBE 
 irrevocable unless a power of revocation be reserved. 1 
 
 A. question frequently arises how far deeds for the creditors' 
 payment of creditors are revocable. As to this it has deeds how 
 been held, that a conveyance for the benefit of creditors M^ revoca ~ 
 is revocable if it has not been communicated to them, 2 
 but not if communicated to them, or some of them, and 
 they assent to it. 3 A conveyance even to one creditor 
 in trust for himself and others cannot be revoked after 
 it has been communicated to him unless he has dissented. 4 
 
 The principles applicable to creditors' deeds were fully Johns v. 
 discussed by the Lords J ustices in the recent case of Johns v. James. 
 James? There a debtor conveyed all his property to the 
 defendants upon trust to pay thereout a sum of 5,000, 
 which they were to raise on his behalf, and all other debts 
 due from the assignor, including a debt due to the plaintiff. 
 The defendants realized the property of the assignor, and 
 alleged that they had paid some of the debts out of the 
 proceeds. The plaintiff brought an action against the de- 
 fendants, asking for an account of the property, and that 
 the debts of the plaintiff and the other creditors might be 
 satisfied thereout. The statement of claim contained no 
 allegation that the assignment had been communicated to 
 the plaintiff. It was held, that the defendants were not 
 trustees for the plaintiff. James, L. J., said : " It appears to 
 me to be too late now to question the principle of Garrard v. 
 Lord Lauderdale? That case seems to me to have proceed- 
 ed upon the plainest notion of common sense. It is quite 
 obvious that a man in pecuniary difficulties having a great 
 number of debts which he could not meet, might put his 
 property in the hands of certain persons to realize and pay 
 the creditors in the best way they could. It was held by 
 the Vice-Chancellor, and it has been affirmed, that really 
 after all that is only making those particular persons who 
 are called trustees his agents or attorneys. There might 
 be a power-of -attorney from him to realize all his property, 
 and relieve him from the difficulties he was in. If it were 
 
 1 Petrer. Espinasse, 2 M. and K, 496 ; Bill r. Cureton, ib., 503. 
 
 2 Acton v. Woodgate, 2 M. and K., 492 ; Walwyn v. Coutts, 3 Mer., 
 707 ; Browne r. Cavendish. 1 J. and L., 606. 
 
 3 Griffith v. Ricketts, 7 Hare, 307 ; Nicholson r. Tntin, 2 K. and J., 18 ; 
 Bamonji Manikiji v. Maroj Palanji. 1 Bom. H. C., 233. 
 
 4 Siggers r. Evans, 5 E. and B., 367 ; Montefiore v. Brown, 7 H. 
 L. C., 241. 
 
 * L. E., 8 Ch. Div., 744. 2 E. and M., 451. . 
 
 10 
 
74 BEVOCATION OF CREDITORS' DEEDS. 
 
 LECTURE supposed that such a deed as that created an absolute 
 n - irrevocable trust in favour of everyone of the persons who 
 happened at the time to be a creditor, the result might have 
 Johns v been very often monstrous. It would give him no oppor- 
 James. ' tunity of paying a creditor who was pressing ; no opportu- 
 nity of settling an action; no opportunity of getting any 
 goods for himself or his family the next day, or redeeming 
 property pledged. So, where there was an actual convey- 
 ance on trust, it was held in Walhvyn v. Coutts, 1 that 
 where it was for all the creditors, it must be assumed from 
 the very nature of the transaction, and from the position 
 of the assignor, that it was a thing for his own benefit, and 
 not for the benefit of numbers of persons whom the trus- 
 tees would probably have no means of ascertaining, and 
 whose debts the trustees would probably have no means of 
 knowing. If you once assumed that this was an absolute 
 trust in favour of every creditor, every person who had a 
 right to claim to be a creditor, or had some demand against 
 him, everyone of those might have filed a bill, and the 
 unfortunate trustee under those circumstances (who might 
 have acted the part of a friend to the impecunious person) 
 might have been liable to a thousand bills in Chancery, for 
 he could not stop any of them until u decree was made in 
 favour of all the creditors. 
 
 Those are some of the reasons that appear to me to have 
 led the Court to say that such a deed as this is to be con- 
 strued as a mandate, the same sort of mandate that a man 
 gives when he gives his servant, money, with directions to 
 pay it in a particular way ; it does not create any equitable 
 or legal right in favour of a particular creditor. The right 
 to the direction of the money is the right of the person 
 who has put the money in the hands of his agent or 
 steward, or whoever he may be. Wallwyn v. Coutts 1 laid 
 that down as the law where the deed was for creditors gene- 
 rally. Garrard v. Lord Lauderdale 2 only extended it to 
 the case where the names of the creditors were scheduled, 
 and the amounts due were scheduled, and that was held 
 not to make any difference ; and from that time to this 
 I believe that has been the doctrine of the Court. The 
 deed itself does not create a trust in favour of all and every 
 or any of the creditors. But circumstances may have occur- 
 ,red, circumstances may have existed, which did make the 
 
 1 3 Mer., 707. 2 2 K. and M., 451. 
 
KE VOCATION OF CREDITORS' DEEDS. 75 
 
 assignment a trust or an obligation in favour of some par- LECTURE 
 ticular person. If the creditor has executed the deed him- IL 
 self, and been a party to it, and assented to it if he has 
 entered into obligations upon the faith of the deed, of course 
 that gives him a right, just as in the case where a man 
 receives money from a person, on a direction from his credi- 
 tor to pay some other person instead of paying him, and he 
 communicates it to this person. The person to whom he 
 communicates it of course has a legal right to have the 
 money so applied, but that does not enure for the benefit of 
 any other person or persons to whom no such communication 
 has been made. It seems to me that on principle you 
 cannot create a right in A where the deed has not giveu 
 him a right, because something has occurred giving B a 
 right, who originally was in the same position as A. That 
 was in fact the principle of the decision in Acton v. 
 Woodgate, 1 for in that case there being beyond all ques- 
 tion a trust deed in favour of all the creditors, including 
 certain post obit creditors, whom the settlor was after- 
 wards minded not to put on the same footing as his other 
 creditors, the settlor directed that they should be excluded 
 from the benefit of the deed ; and it was held by the 
 Court that it was perfectly in his power to do so, and the 
 deed remained still as a deed to be executed in favour 
 of all the creditors except the post obit creditors, and they 
 were not cestuis que trustent by the deed. It has been called 
 a partial revocation. It is not a case of revocation in one 
 sense ; you cannot revoke the deed, and cannot get the 
 property out of the hands of the trustee until, at all 
 events, you have satisfied all the charges and expenses he 
 has incurred, and any right he has acquired in the pro- 
 perty. It is not a revocation of the deed, but it is a 
 revocation of the directions given by the deed to the 
 assignor's agent as to what he shall do with the proceeds. 
 It appears to me that this is clearly a case of the same 
 kind as Wallwyn v. Coutts? and Garrard v. Lord Lauder- 
 dah? viz., the case of a creditor to whom no communica- 
 tion has been made, who has never been induced to act 
 by anything that occurred by reason of the execution of 
 the deed." 
 
 If a time be limited for the execution of the deed by the Ex ecntion 
 creditors, those who refuse to execute it will be excluded ^editors. 7 
 
 1 2 My. & K., 192. - 3 Mer., 7Q7. 2 B. & My., 451, 
 
76 TRUST BY WILL FOR PAYMENT OF DEBTS. 
 
 LECTUBE from its benefits. 1 So if they claim adversely to it, 2 or act 
 
 n - inconsistently with it. 3 And a creditor cannot be said to 
 
 have acceded to the provisions of a composition deed unless 
 
 he has put himself in the same situation with regard to the 
 
 debtor as if he had actually executed the deed. 4 
 
 But mere delay in executing the deed by creditors who 
 nevertheless act under it will not disentitle them to parti- 
 cipate in its benefits, 5 if they do eventually execute the deed 
 or show in some way that they accept it. 6 
 
 A creditor having security, who assents to, and executes, 
 the deed, which contains a release by the creditors of the 
 debts due to them, must share rateably with the other 
 creditors and give up his security, unless the deed provides 
 for his retaining it. 7 
 
 Deed not If there has been no communication to creditors, the 
 
 catwUo" 1 " trust, if not fully executed at the time of the settlor's 
 
 creditors, death, would seem then to be at an end, subject to any 
 
 special interest of the trustee himself; but not if the deed 
 
 has been communicated to the creditors and acted upon, 
 
 as this would constitute them cestuis que trustent, and 
 
 make the deed irrevocable. 8 
 
 Trilst by A trust by will for the payment of the debts of a third 
 for person in the discretion of trustees applies, it has been 
 ne ld, f r the benefit of creditors subsequent to the death 
 of the testator. 9 A debt barred by limitation will not 
 be revived by a direction to pay debts ; 10 but if not barred 
 at the date of the deed or time of the death, the trust 
 will prevent the operation of the Statute afterwards. 11 
 
 A trustee of an estate devised for payment of debts, al- 
 though he is executor, has no right of retainer, but must 
 share rateably with the other creditors. 12 
 
 1 Johnson v. Kershaw, 1 DeG. & Sm., 260. 
 
 2 Watson i: Knight, 19 Beav.. 369. 
 
 * Field v. Lord Donoughmore. 1 Dr. & War., 227. 
 4 Forbes v. Limond. 4 D. M. G.. 298. 
 
 s Nicholson t\ Tutin.2 K. & J., 18; Raworth r. Parker, ib., 163 ; Whit- 
 more r.Turquand, 3 D. F. & J.. 107 ; Me Baber's Trust L. R., 10 Eq., 554. 
 6 Biron v. Mount, 24 Beav., 642. 
 
 * Buck r. Shippam. 1 Ph., 694 ; Cullingworth v. Loyd, 2 Beav., 385. 
 As to the case of a creditor having the security of a surety, who himself 
 holds security of the debtor, see Midland Bank r. Chambers, L. R., 4 
 Ch., 398. 
 
 8 Harland w. Binks, 15 Q. B., 713 ; Cosser v. Radfords. 1 D. J. & S., 
 685 ; Siggers v. Evans. 5 E. & B.. 367 ; Wilding r. Richards. 1 Coll., 655. 
 
 * Joel v. Mills, 7 Jur.. N. S.. 389. 
 
 10 Burke v. Jonas, 2 V. & B.. 275 ; Joel v. Mills, 7 Jur.. N. S.. 389. 
 
 M Crallan v. Oulton, 3 Beav!. 1. ' 2 Bain v. Sadler, L. R., 12 Eq., 570. 
 
LECTURE III. 
 
 IMPLIED AND RESULTING TRUSTS. 
 
 Implied Trusts Precatory Trusts Objects, property, and trust must be 
 described Words of recommendation and entreaty Intention to give 
 absolutely Intermediate class of cases Maintenance Agreement to 
 settle property Vendor trustee for vendee Resulting Trusts Undis- 
 posed of interest Excluding heirs Parol evidence to rebut presump- 
 tion Illesal purpose Trust to sell Trusts vague No trust declared 
 Trust declared of part only of estate Transfer of stock or money into 
 name of another Purchase in name of trustees Purchase in name of 
 stranger Expression of wish Delay Rule applies to joint purchase 
 To personal as well as real estate Purchase in fictitious name Parol 
 evidence admissible on part of person paying purchase-money Parol 
 evidence on behalf of person to whom conveyance made To rebut pre- 
 sumption as to part of the property Statute of Frauds Conveyance to 
 stranger without consideration Purchases in the name of a wife or 
 child no resulting trust Reputed wife Person in loco parenlis 
 Purchase by a mother Purchase in name of nephew Fiduciary rela- 
 tionship Purchases void as against creditors Rules apply to personal 
 estate Surrounding circumstances to be considered Purchase-money 
 unpaid Joint tenancy when created Purchase in the name of a child 
 and a stranger Evidence to rebut presumption of advancement Sub- 
 sequent acts and declarations Possession by father Dividends received 
 by father Devise, bequest, or lease Child fully advanced. 
 
 HITHERTO we have dealt with express trusts only. A implied 
 person, however, may show an intention to create a trust, tr 
 and this will be earned out by the Court by means of an 
 implied trust. 
 
 The general rule as to implied trusts is thus laid down 
 by Mr. Lewin, 1 " Wherever a person having a power of 
 disposition over property, manifests any intention with 
 respect to it in favour of another, the Court, where there 
 is sufficient consideration, or in a will where consideration 
 is implied, will execute that intention through the medium 
 of a trust, however informal the language in which it 
 happens to be expressed." 
 
 1 Lewin on Trusts, 7th Ed., p. 118. 
 
78 PRECATORY TRUSTS. 
 
 LECTURE An implied trust may be created in a will or deed 1 by 
 
 II- words expressive of recommendation, direction, or entreaty, 
 
 Precatory as where the author of the trust gives property and 
 
 Trusts. directs, 2 confides, 3 or trusts aud confides, 4 hopes, 5 doubts not, 6 
 
 recommends, 7 well knows, 8 entreats, 9 desires, 10 or wills and 
 
 desires, 11 requests, 12 or wishes aud requests, 13 or requires 
 
 and entreats, 14 wills, 15 wishes and desires, 16 most heartily 
 
 beseeches, 17 orders and directs, 18 authorizes and empowers, 19 
 
 is well assured, 20 has the fullest confidence, 21 trusts, 22 well 
 
 knows, 23 has full assurance and confident hope, 24 is under 
 
 the firm conviction, 25 or in the full belief, 26 or expresses 
 
 his belief, that the legatee will give 2; the property in a 
 
 particular manner. In such cases the Court will enforce the 
 
 implied trust in favour of the person named or indicated, 28 
 
 I Liddard v. Liddard, 28 Beav., 266. 2 White r. Briggs, 2 Ph.. 583. 
 
 3 Griffiths v. Evans. 5 Beav.. 241 ; Shepherd v. Nottige, 2 J. & H., 7C6. 
 
 4 Wood v. Cox, 1 Ke., 317 ; Palmer v. Simmonds, 2 Drew., 224 ; Mac- 
 nab v. Whitbread. 17 Beav., 299 ; Pilkington v. Boughey, 12 Sim.. 414. 
 
 5 Harland v. Trigg, 1 Bro. C. 0.. 142. 
 
 6 Paul v. Compton. 8 Ves., 380 ; Parsons r. Baker, 18 Ves., 476 ; Taylor 
 v. George, 2 V. & B., 378 ; Sale v. Moore, 1 Sim.. 534. 
 
 7 Horwood v. West, 1 S. & S.. 387 ; Paul v. Compton. 8 Ves.. 380 ; 
 Tibbits v. Tibbits, 19 Ves.. 656 ; Malim . Keighley, 2 Ves. J., 335 ; Hart 
 v. Tribe, 18 Beav., 215 ; Meggisou v. Moore, 2 Ves. J., 630 ; Meredith o. 
 Heneage, 1 Sim., 553. 
 
 8 Briggs v. Penny, 3 Mac. & G., 546. 
 
 9 Prevost v. Clarke, 2 Mad., 458 ; Meredith v. Heneage, 1 Sim., 553 ; 
 Taylor v. George. 2 V. & B., 378. 
 
 10 Harding -v. Glyn. 1 Atk.. 469 ; Bonser v. Kinnear, 2 Giff., 195 ; 
 Cary v. Cary. 2 Sch. and Let'.. 189. 
 
 II Eeles v. England, 2 Vern., 466 ; Birch v. Wade, 3 V. & B., 198 ; 
 Forbes v. Ball, 3 Mer., 437. 
 
 12 Pierson v. Garnett, 2 Bro. C. C., 38, 226 ; Bernard v. Minshull, Johns, 
 276. 
 
 13 Foley v. Parry, 2 M. & K., 138 ; Bernard v. Minshull. Johns, 276. 
 
 14 Taylor r. George, 2 V. & B., 378. 
 
 15 Bales v. England, Pr. Ch., 200 ; Clowdsley r. Pelham, 1 Vern., 411. 
 
 16 Liddard v. Liddard, 28 Beav., 266. 
 
 17 Meredith v. Heneage. 1 Sim., 553. 
 
 18 Cary v. Cary, 2 Sch. & Lef., 189 ; White v. Briggs, 2 Ph., 583. 
 
 19 Brown v. Higgs, 4 Ves.. 708 ; affd., 18 Ves., 192. 
 
 20 Macey v. Shumer, 1 Atk., 389 ; Ray v. Adams, 3 M. and K., 237. 
 
 21 Shovelton v. Shovelton, 32 Beav., 143 ; Curnick r. Tucker, L. R., 17 
 Eq., 320 ; Le Marchant v. Le Marchant, L. R., 18 Eq., 414. 
 
 22 Irvine v. Sullivan, L. R., 8 Eq.. 07.".. 
 
 23 Briggs y. Penny. 3 Mac. and G., 546. 
 
 24 Macnab v. Whitbread, 17 Beav., 299. 
 
 25 Barnes <:. Grant. 2 Jur.. N. S.. 1127. 
 
 Fordham v. Spreight. 23 W. R. (Eng.), 782. 
 
 27 Robinson v. Smith, 6 Madd., 194 ; Clifton r. Lombe, Amb., 519 : but 
 Bee Lechmere v. Lavie. 2 M. &. K., 198. 
 as Knight r. Knight, 3 Beav., 148, 172. 
 
PRECATORY TRUSTS. 79 
 
 and compel the person in whom the confidence is reposed LECTURE 
 to give etfect thereto. J* 1 - 
 
 The property must be described with certainty. 1 For objects, 
 the objects, property, and way in which it shall go must property, 
 be pointed out. 2 jj^'' 
 
 For instance, a bequest of property to a certain person described. 
 " hoping that he will continue it in the family," does not 
 create a trust, as the beneficiary is not indicated with 
 reasonable certainty. 3 So, for the same reason, a bequest 
 to A requesting him to distribute it amongst such members 
 of B's family as B shall think most deserving, does not 
 create a trust. 4 Again, a bequest to A desiring him to divide 
 the bulk of it among B's children, does not create a trust, 
 for the trust property is not indicated with sufficient 
 certainty ; 5 and a bequest of a shop and stock-in-trade to A 
 on condition that he pays the testator's debts and a 
 legacy to B, is a condition and not a trust for the testa- 
 tor's creditors and B. 6 So also a direction to remember 
 certain persons without specifying any sum or property, 7 
 or to make ample provision for them, 8 to give what shall 
 remain at the legatee's death, 9 or to divide and dispose of 
 the savings, 10 to consider certain persons, 11 or to be kind 
 to them, 12 will not create a trust. 
 
 Such words and expressions, however, as have been Words of 
 mentioned, particularly where they indicate recommend- j^endktion 
 ation or entreaty, are of a flexible character, and will not and entrea- 
 create a trust, if that is inconsistent with other positive tv< 
 provisions in the will. 13 And words of expectation do not 
 amount to a recommendation, and do not create a trust. 14 
 
 1 Lechmere v. Lavie, 2 M. & K.. 197 ; Russell v. Jackson, 10 Hare, 
 213 ; Palmer v. Simmonds. 2 Drew, 221. 
 
 2 Malim v. Keighley. 2 Ves. J., 335 ; Briggs v. Penny, 3 Mac. & G., 
 546 ; Bernard r. Minshull, Johns, 276. 
 
 3 Harland v. Trigg, 1 Bro. C. C., 142. 
 
 4 Green v. Marsden, 1 Drew, 646 ; White v. Briggs, 2 Ph., 583. 
 
 5 Palmer v. Simmonds. 2 Drew, 221. 
 
 6 Messenger v. Andrews, 4 Russ., 478. 
 
 7 Bardswell v. Bardswell, 9 Sim., 319. 
 
 8 Winch i: Brutton, 14 Sim., 379 ; Fox v. Fox, 27 Bear., 301. 
 
 9 Lechmere v. Lavie, 2 M. & K., 197. 
 
 10 Cowman v. Harrison, 10 Hare, 234. 
 
 11 Sale r. Moore, 1 Sim.. 534 ; Hoy v. Master, 6 Sim., 568. 
 
 12 Buggins r. Yates, 9 Mod.. 122. 
 
 13 Knott r. Cottee, 2 Ph., 192 ; Young r. Martin, 2 Y. & C C. C., 582 ; 
 Hood r. Oglander, 34 Beav., 513 ; Scott v. Key, 35 Beav., 291 ; Eaton v. 
 Watts, L. R., 2 Eq., 51. 
 
 14 Lechmere c. Lavie, 2 M. & K., 197. 
 
80 
 
 PRECATORY TRUSTS. 
 
 LECTURE 
 III. 
 
 Intention 
 to give ab- 
 solutely. 
 
 Interme- 
 diate class 
 of cases. 
 
 Mainten- 
 ance. 
 
 If it is clear that the author of the trust intended that 
 the devisee should take absolutely, precatory words will 
 not cut down the absolute gift, and create a trust ; they 
 are then regarded merely as the expression of a wish. 1 
 Thus where property is given to A for his own use, 
 benefit, and disposal absolutely, the author of the trust 
 nevertheless conjuring, 2 desiring, 3 or recommending 4 him 
 to make a particular disposition, no trust will be created. 5 
 
 If a testator has, by his will, recommended or desired 
 that a particular person shall be employed as an agent or 
 manager of an estate, or the like, this will not in general 
 impose a trust or obligation upon the devisee of the estate. 6 
 There would seem to be an intermediate class of c:isea 
 between those in which the Court holds that a trust has 
 been created and those in which it holds that it has not 
 been created. Thus there may be an absolute gift subject 
 only to the performance of a particular trust, and the 
 Court may look dehors the will to see what the trust is. 
 In Irvine, v. Sullivan 1 the testator bequeathed his pro- 
 perty to A absolutely, trusting that she would carry out 
 his wishes, but there was no further reference to them in 
 the will. A had written down what the testator desired 
 to give to various persons ; but the paper had not been 
 seen by the testator. It was held that A took beneficially 
 subject to the performance of the testator's wishes. 8 
 
 Occasionally the trusts of a will with reference to the 
 maintenance of children are so ambiguous that it is doubt- 
 ful whether the testator meant to create a trust, or merely 
 to indicate the motive of the gift. Thus, if a legacy be 
 given to a father that he may support himself and his 
 children, 9 or better to enable him to provide for his children, 10 
 or to assist his children or the like, 11 or if a legacy be given 
 
 1 Meredith v. Heneage, 1 Sim., 542 ; Wood v. Cox, 2 My. & Cr., 684. 
 
 2 Winoh v. Bruton. 14 Sim., 379. 
 
 8 McCullocli v. McCulloch, 1 1 W. R. (Eng.). 504. 
 
 4 Johnston v. Rowlands, 2 DeG. and Sm., 356. 
 
 5 See also Webb v. Wools, 2 Sim., N. S., 267 ; Abraham v. Alman, 1 
 Buss., 509 ; Reeves r. Baker, 18 Beav., 373. 
 
 6 Lawless v. Shaw, 5 C. & F., 129 ; Finden v. Stephens, 2 Ph., 142 ; 
 Williams v. Corbet, 8 Sim., 349. 
 
 7 L. R., 8 Eq.. 673. 
 
 9 See also Wood v. Cox, 2 M. & C., 684 ; Bernard v. MinshuU, Johns, 
 276 ; McCormick v. Grogan, L. R., 4 H. L., 82. 
 
 9 Thorp r. Owen, 2 Hare, 607. 
 
 10 Brown v. Casamajor, 4 Yes., 498 ; Wetherell v. Wilson, 1 Keen, 80. 
 
 11 Benson r. Whittam, 5 Sim., 22. 
 
TRUSTS FOR MAINTENANCE. 81 
 
 to A to maintain and bring up B, 1 the gift is absolute LECTUBE 
 without any trust or obligation being imposed on the 
 legatee. So no trust is created when there is an absolute 
 gift, having full confidence that the legatee will make 
 sufficient and judicious provision for the children, 2 or will 
 husband the means left for the children. 3 But a bequest 
 of the income of property that the legatee may use or 
 dispose of it for the benefit of himself and the maintenance 
 and education of his children, in general, creates a trust, 
 not exclusively, however, for the children, but for the 
 parent and children. 4 The trust is imperative to this 
 extent, that the parent must perform the obligation. Pro- 
 vided he does this, he may retain any surplus beyond what 
 is required for this purpose, for himself, and is not bound to 
 account for the application of the fund. 5 But failing in 
 the performance of the trust he will not be allowed to 
 receive the income. 6 Where there is a bequest of a fund 
 to A for the maintenance of her children, and there are 
 none, she will herself be entitled to the income. 7 So also 
 if they have since died. 8 The obligation to maintain the 
 children, if there are any, will not be at an end when they 
 attain twenty-one or marry. Whether it would, if they 
 ceased to reside under the parent's roof, is doubtful. 9 The 
 cases on this point are conflicting. 10 
 
 In Scott v. Key" under a bequest to the testator's widow 
 to be at her sole and entire disposal for the benefit of her- 
 self and children, it was held, that the trust for mainten- 
 ance did not cease absolutely on a daughter, an only child, 
 attaining twenty-one and marrying ; but that on her 
 becoming a widow and requiring maintenance, she would 
 be entitled to it. 
 
 ' Biddies v. Biddies. 16 Sim., 1 ; Jones v. Greatwood, 16 Beav., 627 ; 
 Wheeler v. Smith, 1 Giff., 300. 
 
 2 Fox v. Fox. 27 Beav., 301. 3 Scott v. Key, 35 Beav., 291. 
 
 4 Woods v. Woods, 1 My. & Cr., 401 ; Byne v. Blackburn, 26 Beav., 41 ; 
 Carr v. Living, 28 Beav., 644 ; Berry v. Briant, 2 Dr. & Sm., 1 ; Bird r. 
 Maybury, 33 Beav., 351. 
 
 s Hora v. Hora, 33 Beav., 88. 
 
 Castle v. Castle. 1 DeG. & J., 352. 
 
 7 Hammond v. Neame, 1 Swanst., 35. 
 
 8 Bushnell c. Parsons, Free. Ch., 219. 
 
 8 Longmore v. Elcum 2 Y. & C. C. C., 363 ; Staniland v. Staniland, 34 
 Beav., 536. , 
 
 10 See also Bowden v. Laing, 14 Sim., 113 ; Carr v. Living, 28 Beav., 
 644 ; Thorp v. Owen. 2 Hare, 612. 
 
 11 11 Jur., N. S., 819. 
 
 11 
 
82 TRUSTS FOR MAINTENANCE. 
 
 LECTUEE A direction that A shall reside with and be maintained 
 I 11 - by B, will not be enforced as a trust in the event of A not 
 choosing to reside with B, and although A may reside 
 with B, the trust will terminate at the death of the 
 latter. 1 Where an annuity was given to the testator's 
 widow (in addition to another provision for her) as long 
 as she and her son should live together, but if they ceased 
 to live together it should cease, it was held that the 
 annuity did not terminate upon the son's death in the 
 widow's lifetime. 2 There are cases, however, somewhat 
 varying in terms from those just noticed in which the 
 Court has come to the conclusion that the trustee or 
 parent was not intended to take any interest. As if there 
 is a gift to A to dispose of among his children, 3 or the 
 better to enable him to maintain his children until their 
 shares should become payable. 4 
 
 Again, the terms of the bequest may show that the parent 
 or trustee was intended to take jointly, or in common, 
 with the other objects of the trust, as where a fund is 
 given to a parent with her children for their joint main- 
 tenance. 5 And where the bequest was to the testator's 
 wife for the use and benefit of herself and all his children 
 by her, or by a former wife, it was held that the widow 
 and children took as joint tenants. 6 In some cases it 
 has been held, that where there is a gift to a parent to be 
 disposed of for the benefit of himself or herself and 
 children, the parent takes an estate for life with a power 
 of disposition in favour of the children. 7 But this cannot 
 be relied upon as a general rule. Where a testator gave 
 a house and all his estate to his widow " to be at her 
 disposal in any way she may think best for the benefit 
 of herself and family, " and the widow gave part to an 
 illegitimate son of one of the testator's children, the gift 
 was held valid. The Lords Justices without absolutely 
 
 1 Wilson 0. Bell, L. R., 4 Ch., 581. 
 
 2 Sutcliffe v. Richardson, L. R., 13 Eq., 606. 
 
 3 Blakeney v. Blakeney. 6 Sim., 52. 
 
 4 Wetherell v. Wilson, 1 Keen, 80 ; Brown v. Casamajor, 4 Ves., 498. 
 
 5 Wilson v. Maddison, 2 Y. and G. C. C., 372 ; Bibby v. Thompson, 32 
 Beav., 646. 
 
 6 Newill v. Newill, 7 W. N.. 25 ; Bellasis' Trusts, L. R.. 12 Eq., 218. 
 
 7 See Crockett v. Crockett, 2 Ph., 553 ; Costabidie v. Costabidie, 6 Hare, 
 410: Gully v. Cregoe, 24 Beav., 185 ; Jeffrey v. DeVitre, ib., 296 ; Shovel- 
 ton v. Shovelton, 32 Beav., 143; Armstrong v. Armstrong, L. R., 7 
 Eq., 518. 
 
RESULTING TRUSTS. 83 
 
 deciding the question, seem to have had little or no doubt LECTURE 
 that no trust at all was created by the testator's will. 1 
 
 An implied trust will arise when a person agrees for Agreement 
 valuable consideration to settle certain property, whether to settle 
 moveable or immoveable, 2 and the property may be fol- pl 
 lowed into the hands of a third person. 3 
 
 So if a person enters into a valid contract for the sale of Vendor 
 property, he is from that time a trustee of the property for trus j ee for 
 the purchaser, and must account for the rents and profits, 
 and will be liable in damages if he neglects the property, 
 for being a trustee he is bound to take care of the trust 
 estate, and commits a breach of trust if he does not do so. 4 
 
 The next class of trusts to consider are those created by Resulting 
 operation of law. These again may be subdivided into Trusts- 
 resulting trusts and constructive trusts. I will first deal 
 with the rules of English law as to resulting trusts, and 
 then with benami transactions. When the instrument 
 creating the trust, whether a deed or will, does not direct Undisposed 
 how the whole of the property, made subject to the trust, of interest, 
 is to be disposed of, the undisposed of interest results to 
 the settlor or his heirs or representatives. 5 If a will fails 
 to make an effectual and complete disposition of the whole 
 of the testator's real and personal estate, the undisposed 
 of interest devolves upon the person or persons on whom 
 the law, in the absence of disposition, casts that species of 
 property. So on the same principle, where lands are 
 devised upon particular purposes, as for payment of debts, 
 or with a direction to pay to A for life, and no further 
 trust is declared, all the unexhausted beneficial interest 
 results to the heir. This doctrine is so well settled, that 
 if the character of trustee be plainly and unequivocally 
 affixed to the devisee, no question can be raised respecting 
 its application ; but the difficulty in these cases generally 
 is to determine whether it is intended that the interest 
 
 . ' Lambe r. Eames, L. R., 6 Ch., 597. See also Mackett t?. Mackett. L. 
 R., 14 Eq., 49. 
 
 - Kennedy r. Daly, 1 Sch. and Lef., 355 ; Wellesley v. Wellesley, 4 M. 
 & Cr.. 561 : 'Lvster r. Burroughs. 1 Dr. and Wai., 149. 
 
 3 Lewis r. Madocks. 8 Ves.. 150. 
 
 4 Acland r. Gaisford, 2 Madd., 32 ; Wilson v. Clapham, 1 J. and W., 38 ; 
 Ferguson r. Tadman, 1 Sim.. 530 ; Foster v. Deacon, 3 Madd., 394. See 
 further Lewin, 7th Ed., 128, 129. 
 
 5 Culpepper v. Aston. 2 Ch. Cos.. 116 ; Cook r. Gwavas. cited in Roper 
 r. Radcliffe. 9 Mod.. 187 ; Lloyd r. Spillett, 2 Atk.. 150; Cottingtoii 9. 
 Fletcher, ib.. 15G ; ^orthen /. Carnegie, 4 Drew, 587 ; Mapp v. Elcock, 
 3 H. L. C., 492. 
 
84 RESULTING TRUSTS. 
 
 LECTURE in the land beyond the purpose to which it is devoted 
 shall belong to the devisees in a fiduciary character, or for 
 their own benefit. 1 
 
 Where the whole legal interest of a grantor is given for 
 the purpose of satisfying trusts expressed, and those trusts 
 do not in their execution exhaust the whole, so much of 
 the beneficial interest as is not exhausted results to the 
 grantor or to his heir or legal personal representatives. 
 But where the whole legal interest is given for a particular 
 purpose, with an intention to give to the grantee of the 
 legal estate the beneficial interest, if the whole is not 
 exhausted by that particular purpose, the surplus goes to 
 the grantee, and there is no resulting trust. Thus, a 
 devise to A and his heirs charged with the testator's debts 
 is a beneficial devise, subject to a particular purpose, and 
 there will be no resulting trust ; but if the devise is upon 
 trust to pay debts, that being a devise for a particular 
 purpose only, a trust will result for the heir. 2 
 
 In Lallulhai Bapubhai v. Mankuvarbai? Westropp, C.J., 
 said : " Where there is a devise upon trusts which do not 
 exhaust the property devised, the mere conferring of a 
 legacy, or other benefit, upon the heir does not prevent 
 there being a resulting trust of the residue for him, unless 
 there be other circumstances sufficiently strong to turn 
 the scale in favour of the devisee. On the same principle 
 the mere gift, by a testator, of an annuity to his wife has 
 been held not to be sufficient without other circumstances 
 demonstrative of his intention that she should not have 
 both it and dower, to induce the Courts in England to put 
 her to her election between the annuity and dower. Even 
 where there is an expressed intention to exclude the next- 
 of-kin from the residue of personalty, or the heir from 
 the residue of realty, there must be a distinct devise away 
 from them, otherwise there will be a resulting trust in 
 their favour." 
 
 Excluding In order to exclude the heir, the intention of the grantor 
 to exclude them must be apparent; mere conjecture 4 or 
 the fact that legacies have been given 5 will not be 
 
 1 1 Jarm., 529, 3rd Ed. 
 
 2 King v. Denison, 1 V. and B., 272, per Lord Eldon ; and aee Wood r. 
 Cox, 2 M. and C., 684 ; Rogers v. Rogers, 3 P. Wms., 193. 
 
 I. L. R., 2 Bom., 410. 
 
 4 Halliday v. Hudson, 3 Ves.,211 ; Phillips v. Phillips, 1 M. and K., 661. 
 
 * Salter v. Cavanagh, 1 Dr. and Wai., 668. 
 
RESULTING TRUSTS. 85 
 
 sufficient. 1 The trust results, not on the ground of inten- LECTURE 
 tion, but because the ancestor has declared no intention. 2 l u - 
 
 Even where there is an expressed intention to exclude 
 the next-of-kin or heir, there must be a distinct devise 
 away from them, otherwise there will be a resulting trust 
 in their favour. 3 
 
 Parol evidence is admissible to rebut the presumption p ar ol 
 of law in the 1 case of an instrument made inter vivos, evidence 
 and to show the settlor's intention to give the surplus preifump- 
 interest beneficially. 4 tion. 
 
 If property is assigned for an illegal purpose which is illegal 
 not carried into effect, and nothing is done under it, the purpose, 
 mere intention to effect an illegal object when the assign- 
 ment was executed, does not deprive the assignor of his 
 right to recover the property from the assignee who has 
 given no consideration for it. 5 
 
 Where estates are devised to executors upon trust, to Trust to 
 sell and to invest part of the proceeds of the sale for a sel1 - 
 particular purpose, but no trust is declared of the sum 
 so reserved after the purpose is satisfied, there will be a 
 resulting trust for the heir. 6 
 
 Under a devise of all the residue of the testator's estate 
 and effects whatsoever, and wheresoever, of what nature 
 or kind soever, to trustees upon trusts applicable only 
 to personal property, the real estate will pass with a 
 resulting trust for the heir. 7 But if the trusts may be 
 applicable to real estate, then the real estate will pass. 8 
 
 If the trusts declared are so vague that they cannot be 
 
 1 King v. Denison, 1 V. and B., 274 ; Amphlett v. Parke, 2 R. and M., 
 230. 
 
 2 Tregonwell v. Sydenham, 3 Dow.. 211 ; Lloyd v. Spillett, 2 Atk., 
 151 ; Habergham v. Vincent, 2 Ves. J., 225. 
 
 3 Fitch v. Weber, 6 Hare, 145 ; Johnson v. Johnson, 4 Bear., 318 ; 
 Lallubhai Bapubhai r. Mankuvarbai, I. L. R., 2 Bom., 410. 
 
 4 Fowkes r. Pascoe, L. R., 10 Ch., 843. As to admission of parol 
 evidence in case of wills, see Lewin, 7th Ed.. 56, 134. 
 
 5 Symes v. Hughes, L. R., 9 Eq., 475 ; Manning v. Gill, L. R., 13 Eq., 
 485 ; Haigh v. Kaye, L. R., 7 Ch., 469 ; Dawson v. Small, L. R., 18 Eq., 
 114. 
 
 6 Stonehouse r. Evelyn, 3 P. Wms., 252 ; Watson v. Hayes, 5,M. an d 
 C., 125 ; Page r. Leapingwell, 18 Ves., 463 ; Mariott v. Turner, 20 
 Beav., 557. 
 
 7 Dunnage v. White. 1 Jac. and W., 583 ; Lloyd v. Lloyd, L. R., 7 Eq., 
 458 ; Longley v. Longley, L. R.. 13 Eq., 133. 
 
 8 D'Almaine r. Moseley, 1 Drew., 629 ; Coard v. Holderness, 20 Beav., 
 147. 
 
86 RESULTING TRUSTS. 
 
 LECTURE executed, 1 or if they lapse, 2 or are void because of unlaw- 
 111 fulness, 3 or if property is devised on trusts to be thereafter 
 Trusts'" declared, and no declaration is made, 4 a trust will result, 
 vague. So also a trust will result when the instrument creat- 
 
 No trust ing the trust shows that it was not intended that the 
 declared. g ran t e e should take beneficial!} 7 , as where the conveyance, 
 devise, or bequest is to A " upon trust," and no trust is 
 declared. 8 
 
 Trust de- If & trust is declared of a part only of an estate, whether 
 
 C m C on" f ^7 conveyance, inter vivos, or by will, the undisposed of 
 
 of estate, interest results to the grantee or testator, or his heirs or 
 
 representatives. 6 According to English law, the undisposed 
 
 of residue, in the case of personalty, vests in the executors 
 
 beneficially. But that rule does not apply to Hindus. 7 
 
 Transfer of A trust will result where stock or money is transferred 
 
 stock or another, unless it can be inferred from the surroundim-- 
 
 money into . . 8 . . 
 
 name of circumstances that a gut was intended , and where the 
 another, transfer is into the joint names of the grantor and grantee, 
 
 the grantee will have a beneficial interest for life. 9 
 Purchase No trust will result where a person invests money in the 
 trustees 6 f liames f the trustees of his marriage settlement, the pre- 
 sumption being in such cases that he intended to benefit 
 the persons interested under the settlement. 10 
 
 Though cestuis que trustent may claim the whole of an 
 estate which is wholly purchased out of trust monies, they 
 can, if the estate be only partially purchased with trust 
 money, claim only a charge for the amount of the trust 
 monies employed in the trust. 11 
 
 1 Stubbs v. Sargon, 2 Keen., 255 ; 3 M. and C., 507; Williams r. Kershaw, 
 5 C. and F., 111. 
 
 2 Ackroyd v. Smithson, 1 Bro. C. C., 503 ; Williams r. Coade, 10 Ves.. 500. 
 
 3 Gibbs v. Rumsey, 2 V. and B., 234 ; Page v. Leapingwell, 18 Ves., 
 463 ; Tregonwell v. Sydenham. 3 Dow., 194. 
 
 4 Fitch v. Weber, 6 Hare. 145 ; Barrs r. Fewkes, 2 H. and M., 60 ; 
 Biddulph i: Williams, L. R.. 1 C. D., 203. 
 
 5 Dawson v. Clarke, 18 Ves.. 254 ; Penfold v. Bouch, 4 Hare, 271 ; 
 Attorney-General v. Dean and Canons of Windsor, 24 Beav., 679 ; 8 H. L. 
 C.. 369 ; Aston v. Wood, L. R.. 6 Eq., 419 ; Barrs v. Fewkes, 2 H. & M., 60. 
 
 8 Northen v. Carnegie. 4 Drew., 587 ; Nash r. Smith. 17 Ves., 29 ; 
 Mapp v. Elcock, 2 Phill.. 793 : 3 H. L. C., 492 ; Bird v. Harris, L. R., 9 
 Eq.. 204 ; Williams r. Arkle. L. R., 7 H. L., 606. 
 
 7 Lallubhai Bapubhai v. Mankuvarbai, I. L. R.. 2 Bom., 406. 
 
 8 Custauce r. Cunningham, 13 Beav., 363 : Fowkes r. Pascoe, L. R., 
 10 Ch., 340 ; Batstone r. Salter, L R.. 10 Ch., 431. 
 
 9 Fowkes v. Pascoe, L. R.. 10 Ch., 348. 
 
 10 Re Curteis's Trust, L. R., 14 Eq., 217. 
 
 11 Lane r. Dighton, Amb.. 409 ; Ryal r. Ryal, Amb., 411 ; Nogender 
 Chunder Ghose r. Greender Chunder Ghose, Boul., 389. 
 
PURCHASE IN NAME OF STRANGER. 87 
 
 Where property is bought by one person in the name LECTUBE 
 of a stranger, to whom the conveyance is made, there 
 will be a resulting trust for the person who paid the Purchase 
 purchase-money. " The clear result of all the cases," said in name of 
 Eyre, C. B., 1 "without a single exception, is, that the 8t: 
 trust of a legal estate, whether freehold, copyhold, or 
 leasehold ; whether taken in the names of the purchasers 
 or others jointly, or in the names of others without that of 
 the purchaser ; whether in one name or several ; whether 
 jointly or successive, results to the man who advanced the 
 purchase-money. This is a general proposition supported 
 by all the cases, and there is nothing to contradict it ; and 
 it goes on a strict analogy to the rule of the common law, 
 that where a feoffment is made without consideration, the 
 use results to the feoffor." 2 
 
 The person who advances the money must do so in the 
 character of purchaser. 3 
 
 No resulting trust will be created by the mere expres- Expres- 
 sion of a wish on the part of the grantor, that the purchase- ^h. f 
 money may be applied in a certain way. 4 
 
 The rights of a purchaser may be barred by negligence Delay, 
 or delay. 5 
 
 The rule that a trust results for the person who pays Rnie ap- 
 the purchase-money applies to the case of a joint purchase j 
 in the name of one. In Crop v. Norton, 6 Lord Hardvvicke chase, 
 seemed to think that the application of the rule was con- 
 fined to an advance by one individual. In Wray v. Stede, 1 
 however, Sir T. Plumer decided that a resulting trust arose 
 upon a joint advance, the purchase being taken in the 
 name of one. " Lord Hardwicke," said his Honour, " could 
 not have used the language attributed to him. What is 
 there applicable to an advance by a single individual, that 
 
 1 Dyer v. Dyer, 2 Cox, 93. 
 
 2 As to conveyances taken jointly, see ex parte Houghton, 17 Yes., 
 2">3 ; Rider v. Kidder, 10 Ves., 367. And as to several successive, see 
 Howe K. Howe, 1 Vern.. 415 ; Withers r. Withers, Amb., 151 ; Smith 
 v. Baker, 1 Atk.. 386 ; Prankard v. Prankard, 1 S. and S., 1. 
 
 3 Bartlett v. Pickersgill, 1 Eden, 516; Crop v. Norton, 9 Mod., 235 ; 
 Aveling F. Kuipe. 19 Ves.. 441. 
 
 4 Wheeler v. Smith. 1 Giff., 300. 
 
 5 Delane v. Delane. 7 Bro. P. C.. 279 ; Groves v. Groves, 3 Y. and J., 172 ; 
 Clegg v. Edinonsou. 8 D. M. G., 787 ; Peddamuthulaty v. Timma Reddy. 
 2 Mad. H. C..270. 
 
 6 2 Atk.. 74 : 9 Mod., 233 : Barn.. 184. 
 1 2 V. and B., 388. 
 
88 
 
 PAROL EVIDENCE. 
 
 LECTURE 
 
 To per- 
 sonai as 
 
 estate! " & 
 Purchase 
 
 Paroi evi- 
 
 mTssfbie d on 
 
 part of per- 
 
 8 urciiase S 
 money. 
 
 Parol evi- 
 
 behatf of 
 person to 
 
 made. 
 
 is not equally applicable to a joint advance under similar 
 circumstances ?' }1 
 
 The foregoing doctrines apply as well to personal as to real 
 estate, 2 even though when the property consists of shares 
 i Q a company, the rules of the company provide that there 
 shall be no benefit of survivorship. 3 
 
 Where money has been invested in the purchase of stock 
 i n a fictitious name, for the purpose of defrauding creditors, 
 the Court will order the fictitious name to be erased and 
 the stock to be transferred to the person who paid the 
 purchase-money. 4 Where an intestate had executed trans- 
 fers of railway shares and stock to a fictitious person, the 
 Court, in a suit by his administrator, declared that the 
 intestate used the fictitious name as another designation 
 of himself, and that the plaintiff, as administrator, was 
 entitled to a transfer of the shares and stock in question, 
 and to receive the dividends thereof. 5 
 
 Parol evidence is admissible on behalf of the person 
 P a yi n o ^ ne purchase-money to show that it belonged to 
 him. In Sir John Pecliys Co.se, 6 Sir E. Clarke, M. R., laid 
 ^ down, that if A sold an estate to C, and the consideration 
 was expressed to be paid by B , and the conveyance made to 
 B, the Court would allow parol evidence to prove that the 
 money was paid by C. 1 But such parol proofs must be very 
 clear. 8 
 
 Parol evidence is admissible on behalf of the person 
 to whom the conveyance is made, to rebut the presumption 
 O f a resulting trust for the person paying the purchase- 
 money. In Beecher v. Major, 9 A purchased and trans- 
 ferred 1,000 stock in the name of her niece, and wrote 
 her a letter, saying that she had done so, and that she 
 
 1 As to contribution, see Lewin. 7th Edn., 150. 
 
 2 Ebrand v. Dancer, 2 Ch. Ca.. 26 ; Lloyd r. Read, 1 P. Wins., 607 ; Mor- 
 timer v. Davies, 10 Ves., 363 ; Rider v. Kidder, 10 Ves., 360 ; Sidmouth 
 v. Sidmouth, 2 Beav., 447 ; Soar r. Foster. 4 K. and J., 152 ; Beecher v. 
 Major, 2 Dr. and Sm., 431 ; Batstone r. Sal'ter, L. R., 19 Eq.. 250 ; affd. 
 L. R., 10 Ch., 431. 
 
 3 Garrick r. Taylor, 29 Beav., 79 ; affd. 4 DeG. F. and J., 159. 
 
 4 Green v. Bank of England, 3 Y. and C. Exch., 722. 
 
 5 Arthur v. Midland Railway Company, 3 K. and J., 204. 
 
 6 Rolls, E. T., 1759 M. ; 6 Sugd V. and P. 
 
 7 See also Ryal r. Ryal, 1 Atk., 59 ; Amb., 413 ; Willis r. Willis. 2 Atk., 
 71 ; Bartlett r. Pickersgill, 1 Eden, 516 ; Lane v. Dighton, Amb., 409 ; 
 Groves v. Groves, 3 Y. and J.. 163. 
 
 8 Gascoigne v. Thwing, 1 Ver., 366 ; Willis v. Willis, 2 Atk., 71. 
 
 9 2 Dr. and Sm., 431. 
 
PAROL EVIDENCE. 89 
 
 intended it for the niece's benefit ; and in the letter A LECTURE 
 inclosed a bank-power, which she stated was to enable III< 
 her to receive the dividends for her life, which power she 
 requested the niece to execute and return to her, and also 
 to destroy the letter, both of which the niece accordingly did. 
 It afterwards turned out that the bank -power authorized 
 A to sell out stock as well as receive the dividends. It 
 appeared that A had always been very kind to the niece, 
 and by her will, made before the transfer, had given her 
 an annuity of 30. It was held, that parol evidence of 
 the contents of the letter was admissible to rebut the 
 presumption that the stock still belonged to A. 1 Parol T 
 evidence is admissible for the purpose of rebutting the p rJu m U p- 
 presumption of a resulting trust as to a part, as well as to tiou M to 
 
 Ii i i e j.r part of the 
 
 the whole ot the property." property. 
 
 In a suit between persons governed by English law statute of, 
 in the Presidency -towns, I apprehend that parol evidence Frauds> 
 would not be admissible to show that, where land has been 
 paid for by one person, the purchase was made on behalf 
 of another, for the seventh section of the Statute of Frauds 
 requiring declarations of trust to be in writing is still in 
 force there. This was decided in Bartlett v. Pickersyill, 3 
 where Lord Keeper Henley said : " I think the allowing 
 this evidence would be to overturn the Statute. The Sta- 
 tute says there shall be no trust of land unless by memo- 
 randum in writing, except such trusts as arise by operation 
 of law. Where money is actually paid, there the trust 
 arises from the payment of the money, not from any agree- 
 ment of the parties. But this is not like the case of money 
 paid by one man and the conveyance taken in the name of 
 another ; in that case the bill charges that the estate was 
 bought with the plaintiffs money. If the defendant says 
 he borrowed it of the plaintiff, then the proof will be whether 
 the money was lent or not ; if it was not lent, the plaintiff 
 bought the land ; but as here the trust depends on the 
 agreement if I establish the one by parol, I establish the other 
 also If the plaintiff had paid any part of the pur- 
 chase-money, it would have been a reason for me to admit 
 the evidence, or if there had been any fraud used by the 
 
 1 See also Groves i: Groves, 3 Y and J., 163. 
 
 2 Bellasis v. Compton, 2 Vern., 294 ; Beiibow r. Townsend, 1 M. aud 
 K., 506 ; Deacon r. Colquhoun. 2 Drew., 21 ; Garrick P. Taylor, 29 Beav., 
 79 ; affd., 4 DeG. F. and J., 163. 
 
 * 1 Eden. 516. See also Crop r. Norton, 9 Mod., 235 ; 2 Atk., 74; Barn., 
 179 ; Chadwick r. Maden, 9 Hare, 188. 
 
 12 
 
90 
 
 PURCHASE IN NAME OF WIFE OR CHILtT. 
 
 LECTURE 
 III. 
 
 Convey- 
 ance to 
 stranger 
 without 
 considera- 
 tion. 
 
 Purchases 
 in the 
 name of a 
 wife or 
 child no 
 resulting 
 trust. 
 
 defendant to prevent an execution of the agreement ; but 
 as it is, I think that it is a case within the Statute, and that 
 the bill must be dismissed with costs." 1 
 
 In some cases it has been held, that where a conveyance 
 is made to a stranger without any valuable consideration 
 being expressed, that a resulting trust arises for the gran- 
 tor. 2 In Young v. Peachy? Lord Hardwicke said : " If a 
 trust by implication was to arise in the present case, it 
 would be to contradict the Statute of Frauds ; for it might 
 be said in every case where a voluntary conveyance is 
 made, that a trust shall arise by implication ; but that is- 
 by no means the rule of the Court. 4 Trusts by implication, 
 or operation of law, arise in such cases, where one person 
 pays the purchase-money, and the conveyance is taken in 
 the name of another, or in some other cases of that kind ; 
 but the rule is by no means so large as to extend to every 
 voluntary conveyance." 
 
 Where a son conveyed an estate to his father nominally 
 as purchaser, but really as a trustee, and in order that the 
 father, who was in better credit than the son, might raise 
 money on it by way of mortgage for the use of the son, 
 and the father died shortly afterwards, and before any 
 money was raised, having by a will subsequent to the con- 
 veyance made a general devise of all his real estates, it 
 was held, that the case was within the Statute, and that 
 parol evidence was not admissible to prove the trust ; but 
 that the son had a lien on the estate as vendor for the ap- 
 parent consideration, no part of which was paid. 6 
 
 No resulting trust arises upon a purchase in the name 
 of a wife alone. 7 Nor upon a joint purchase in the names 
 of husband and wife, 8 nor upon a purchase in the name of 
 a child. 9 
 
 1 See also Heard t. Pilley, L. R., 4 Ch., 548. 
 
 2 Duke of Norfolk c. Brown. Free. Ch., 80 ; Warman v. Seaman, Freem., 
 308 ; Scnlthorp v. Burgess. 1 Ves. J.. 93 ; Davies v. Otty (No. 2), 35 Beav., 
 208. 
 
 3 2 Atk., 256. 4 See Fordyce r. Willis, 3 Bro. C. C.. 577. 
 
 5 And see 1 Sand. Uses, 5th Ed., 365 ; Wms. R. P., 10th Ed., 159 ; Lloyd 
 v. Spillett, 2 Atk., 150. 
 
 6 Leman v. Whitley. 4 Ruas.. 423. This case was doubted by Lord St. 
 Leonards, Sug. V. and P.. 14th Ed., 702. 
 
 7 Kingdom v. Bridges. 2 Vern., 67; Back v. Andrews, 2 Vern., 120 ; 
 Christ's Hospital v. Budgin, 2 Vern.. 683 : Rider v. Kidder, 10 Ves., 360 ; 
 Gosling v. Gosling, 3 Drew., 335 ; Lloyd r. Pughe, L. R., 8 Ch., 88. 
 
 8 Drew r. Martin, 2 H. and M., 130. 
 
 ' Dyer v. Dyer, 2 Cox, 92 ; Finch r. Finch, 15 Ves., 50 ; Murless v. 
 Franklin, 1 Swanst., 13 ; Grey v. Grey. 2 Swanst., 597 ; Finch, 340. 
 
PURCHASE BY MOTHER. 01 
 
 If a mortgage is made in the joint names of a husband LECTDBE 
 and wife, this will be considered as being in the nature of 
 a joint purclia.se, and the wife will, if the husband dies, be 
 entitled to the mortgage money by survivorship. 1 
 
 A purchase in the name of the purchaser and of a woman Routed 
 with whom he has gone through the ceremony of mar- wife - 
 riage, but who could never become his lawful wife, does not 
 come within the rule, and therefore such a purchase will 
 not raise a presumption that it was intended as an ad- 
 vancement or provision for her. 2 
 
 The presumption of advancement may arise in the case Person in 
 of a purchase by a person who has placed himself in loco lo ? i> are - 
 parentis to the person in whose name the purchase is made. 
 Thus the presumption has been held to apply in the case 
 of an illegitimate son. 3 
 
 But the presumption of advancement will not arise in the 
 case of a purchase in the name of an illegitimate grand- 
 child, although the grandfather has placed himself in loco 
 parent-is to the child. 4 
 
 In the case of Re De Visine? it was said that a mother Purchase 
 does not stand in such a relationship to a child as to raise a J*y a mo ~ 
 presumption of benefit for the child. In Say-re v. Huyhes? 
 a mother, after making her will in favour of her two 
 daughters, transferred stock, which had stood in her own 
 name, into the names of herself and one of the daughters, and 
 died. It was held, that there was a presumption of intended 
 benefit to the daughter which was unrebutted, and that the 
 stock belonged absolutely to her. Re De Visme" 4 was cited 
 as an authority for the proposition, that there could be no 
 presumption of advancement as between a mother and 
 child ; but Stuart, V. C., pointed out that the word ' father ' 
 does not occur in Lord Chief Baron Eyre's judgment in 
 Dyer v. Dyer, 8 and said that it was not easy to understand 
 why a mother should be presumed to be less disposed to 
 
 1 Christ's Hospital r. Budgin, 2 Vern., 683. 
 
 2 Soar r. Foster. 4 K. and J.. 152. 
 
 3 Beckford c. Beckford, Lofft., 490 ; Kilpin v. Kilpin, 1 M. and K., 520 ; 
 Soar r. Foster. 4 K. and J.. 152: Tucker r. Burrow, 2 H. and M., 515. 
 
 4 Tucker v. Burrow. 2 H. and M.. 515 ; Forrest r. Forrest. 11 Jur., N. 
 S., 317. See, however, Powys v. Mansfield, 3 My. and Cr., 359, as to dotible 
 portions. 
 
 5 2 DeG. J. and S.. 17. 
 
 6 L. R.. 5 Eq.. 377 ; see also Hep worth r. Hepworth, L. R., II Eq., 10. 
 
 7 2 DeG. J, and S., 17. 
 * 2 Cox. H2. 
 
92 FIDUCIARY RELATIONSHIP. 
 
 LECTURE benefit her child in a transaction of this kind than a father. 
 III. Where stock was transferred by a mother into the names of 
 herself, her daughter, and the daughter's husband, and the 
 dividends on the stock were received by the son-in-law 
 and paid over to the transferror during her life, and the 
 mother died leaving the son-in-law only surviving, it was 
 held, that there was no resulting trust, and that the son- 
 in-law was entitled to the stock, the Court being of opinion 
 that the evidence showed that the mother intended to 
 create a beneficial interest in each of the three persons 
 into whose name the stock was transferred. 1 
 
 Purchase Where one of two brothers purchased an estate in the 
 f name f hi g nephew, and- paid the whole of the purchase- 
 money, and enjoyed the rents and profits, it was held, in a 
 suit by the purchaser to recover possession, that he must 
 be presumed to have purchased on his own account. 2 
 Fiduciary Where a fiduciary relationship, such as that of solicitor 
 ship 1 ' ' an< ^ client, subsists between a parent and child, and the 
 parent's money is advanced by the child in her own name, 
 the ordinary presumption in favour of the transaction 
 being a gift, is excluded, and the onus is thrown upon the 
 child of proving that a gift was in fact intended. 3 
 Purchases Purchases in the name of a wife or child by way of gift, 
 J"a!nst or advancement, are, it appears, within the 13 Eliz., c. 5, 
 creditors, and may be avoided as against creditors. 4 
 Rules an- The rules of English Courts of Equity as to resulting 
 ply to per- trusts apply also to personal estate, and therefore, where a 
 estate husband transfers stock into the names of himself and his 
 wife, no resulting trust will arise for the husband, but the 
 wife will be entitled to the whole of the fund by survivor- 
 ship; 5 so also in the case of a transfer of stock into the 
 names of a parent and child, the stock will belong to the 
 child surviving. 6 
 
 1 Batstone v. Salter. L. R., 19 Eq., 250 ; affd., L. R., 10 Ch., 431. And 
 see Fowkes v. Pascoe, L. R., 10 Ch.. 343. 
 
 2 Sheeoram Ghose v. Datarara Ghose, 2 Sel., 53. 
 
 8 Garrett v. Wilkinson, 2 DeG. and Sm., 244 ; see also Hepworth v. 
 Hep worth, L. R., 11 Eq., 14. 
 
 4 Glaister v. Hewer, 8 Yes.. 195 ; Townsend v. Westacott, 2 Beav., 340 ; 
 4 Beav.. 58 ; Christy v. Courbenay, 13 Beav., 96 ; Barrack r. M'Culloch, 
 3 K. and J.. 110 : Drew v. Martin, 2 H. and M.. 130. 
 
 5 Dnmmer v. Pitcher, 2 M. and K, 262 ; Low v. Carter. 1 Beav., 426 ; 
 Vance r. Vance, ib., 605 ; Poole r. Odling, 31 L. J., Ch., 439. 
 
 Sayre c. Hugrb<s, L. R., 5 Eq., 376 ; lie De Visme, 2 DeG. J. and 
 S., 17. 
 
SURROUNDING CIRCUMSTANCES. 93 
 
 The mere circumstance that the name of a wife or child LECTURE 
 is inserted on the occasion of a purchase of stock is not IIL 
 sufficient to rebut the presumption of a resulting trust Surround _ 
 in favour of the purchaser, if the surrounding circum- ing circum- 
 stances lead to the conclusion that a trust was intended. ^f"o e n 8 gi ' 
 Although a purchase in the name of a wife or a child, if dered. 
 altogether unexplained, will be deemed a gift, yet the 
 surrounding circumstances may be taken into consider- 
 ation so as to say that it is a trust, and not a gift. Thus 
 in Marshall v. Crutwell, 1 the husband of the plaintiff, 
 being in failing health, transferred his banking account 
 from his own name into the joint names of himself and his 
 wife, and directed the bankers to honour cheques drawn 
 either by himself or his wife, and he afterwards paid in 
 considerable sums to their account. All cheques were 
 afterwards drawn by the plaintiff at the direction of her 
 husband, and the proceeds were applied in payment of 
 household and other expenses. The husband never ex- 
 plained to the plaintiff what his intention was in trans- 
 ferring the account, but he was stated by the bank manager 
 to have remarked at the time of the transfer that the 
 balance of the account would belong to the survivor of 
 himself and his wife. After the death of her husband 
 (which took place a few months after the transfer), the 
 plaintiff claimed to be entitled to the balance. It was held, 
 that the transfer of the account was not intended to be a 
 provision for the plaintiff, but merely a convenient mode 
 of managing her husband's affairs, and consequently that 
 she was not entitled. Jessel, M. R., said : " In all the cases 
 in which a gift to the wife has been held to have been 
 intended, the husband has retained the dominion over the 
 fund in this sense, that the wife during the lifetime of the 
 husband has had no power independently of him, and 
 the husband has retained the power of revoking the gift. 
 In transferring a sum of stock, there is no obvious motive 
 why a man should put a sum of stock into the name of 
 himself and his wife. She cannot receive the dividends, 
 he can and must, and it is difficult to see any motive of 
 convenience or otherwise which should induce a man to 
 buy a sum of stock or transfer a sum of stock (if there 
 is any difference between the two) in or into the names 
 of himself and his wife, except the motive of benefiting 
 
 1 L. R., 20 Eq., 329 ; and see Fowkes r. Pascoe, L. R., 10 Ch., 343. 
 
94 PURCHASE IN NAME OF CHILD AND STRANGER. 
 
 LECTURE her in case she survives. Bat here we have the actual 
 In - fact, that the man was in such a state of health that he 
 could not draw cheques, and the wife drew them. Looking 
 at the fact that subsequent sums are paid in from time to 
 time, and taking into view all the circumstances (as I 
 understand I am bound to do) as a juryman, I think that 
 the circumstances show that this was a mere arrangement 
 
 o 
 
 for convenience, and that it was not intended to be a provi- 
 sion for the wife in the event which might happen, that 
 at the husband's death there might be a fund standing to 
 the credit of the banking account." 
 
 Purchase- Where a purchase, either of moveable or immoveable 
 *|j ey ul " property, is made in the name of a wife or child, and the 
 purchaser dies before the whole of the purchase-money is 
 paid, the purchase will enure for the benefit of the wife or 
 child, and the unpaid purchase-money is payable out of the 
 purchaser's personal estate. 1 
 
 joint ten- A purchase in the joint names of a father and son creates 
 ancy when a joint tenancy. 2 In one case, where the father had no other 
 created. es tate to which a judgment-creditor could resort, the creditor 
 
 was relieved in equity against the survivorship at law. 3 
 Purchase If a purchase is made by a parent in the name of a child 
 in the name and of a stranger, whether of real or personal estate, it will 
 andastran- ^ Q considered as an advancement ; the stranger will be 
 ger. treated as a trustee for the child, and there will not be any 
 
 resulting trust to the father. 4 
 
 Evidence I n certain cases where a purchase is made in the name 
 to rebut o f a child, the presumption of advancement may be rebutted. 
 tlot U of P ad- The antecedent and contemporaneous acts and declarations 
 vancement. of the parent are admissible in evidence to rebut the pre- 
 sumption of advancement, but his subsequent acts and 
 declarations are inadmissible for that purpose. 6 
 
 1 Redington. r. Redington. 3 Ridg.. P. C-, 177 ; Vance r. Vance, 1 Beav., 
 605 ; Drew v. Martin, 2 H. and M., 130 ; Skidmore v. Bradford, L. R.. 
 8 Eq., 134. 
 
 2 Scroope v. Scroope, Freem., 171 ; 1 Ch. Cas., 27 ; Back v. Andrew 
 2 Vern., 120 ; Grey v. Grey, 2 Swanst., 599 ; Dummer v. Pitcher, 2 M. and 
 K., 272. 
 
 3 Stileman v. Ashdown, 2 Atk., 477 ; see Pole v. Pole, 1 Ves., 76. 
 
 4 Lamplusrh r. Lamplugh, 1 P. Wms., Ill ; Mumma v. Mumma, 2 
 Vern.. 19 ; Finch v. Finch. 15 Ves.. 43 ; Crabb v. Crabb, 1 M. and K., 511 ; 
 Collinson r. Collinson. 3 D. M. G.. 403. 
 
 5 Keats v. Hewer. 10 Jur., N. S.. 1040. 
 
 6 Redington v. Redington, 3 Ridg., 177 ; Lloyd r. Read, 1 P. Wms., 607 ; 
 Murless v. Frankin, 1 Swanst.. 13 ; Sidmouth v. Sidmouth, 2 Beav., 447 ; 
 Collinson c. Collinson. 3 D. M. G.. 401) : Dumper v. Dumper, 3 Giff.. 583 ; 
 Williams r. Williams, 32 Beav., 370 ; Tucker v. Burrow, 2 H. and M., 515. 
 
REBUTTING PRESUMPTION OF ADVANCEMENT. 95 
 
 In Devoy v. Devoy, 1 the presumption that the transfer LECTUBE 
 by a father of stock into the joint names of himself, his IIL 
 wife, and child, was intended to be an advancement, 
 was allowed to be rebutted by the evidence of the trans- 
 ferror that no trust was intended, but that the transfer 
 was made under a misapprehension of its legal effect. 2 
 
 Although subsequent acts and declarations of the parent Subsequent 
 are not evidence to the support of the trust, subsequent acts ^rations!" 
 and declarations of the child may be so. 3 
 
 The presumption of advancement will not be rebutted Possession 
 by the fact of the father having continued in possession of by father - 
 the estate during his life, 4 nor by the fact that he has 
 expended money in repairs on the estate. 5 
 
 Where a father purchases stock or shares in the name of Dividends 
 a child, and receives the dividends during his life under 
 a power from the son, this alone will not rebut the pre- 
 sumption of advancement. 6 In Smith v. Warde, 1 a father 
 directed stock to be purchased in the names of himself 
 and his wife in trust for his infant son. The purchase 
 was made in the joint names without any trust being 
 declared, and the father received the dividends down to 
 his decease. It was held, that neither his son nor his 
 wife (who survived him) were entitled to the stock, but 
 that it formed part of his assets. 8 
 
 If, after a purchase of property by a parent or by a Devise, 
 husband in the name of a child or wife, the purchaser 
 devises or bequeaths it, 9 or leases it, 10 the primd facie pre- 
 sumption of advancement will not be rebutted. 
 
 Where a testator by his will settled 1,000, reduced 
 annuities, on each of his grand-daughters, the children of 
 his only son, and two years afterwards he transferred a 
 
 1 3 Sm. and G., 403. 
 
 2 See also Stone v. Stone. 3 Jur. (X. S.), 708. 
 
 3 Sidmouth v. Sidmouth, 2 Beav. 447. 
 
 4 Grey v. Grey, 2 Swanst., 600 ; Lamplugh r. Lamplugh, 1 P. Wms., 
 Ill ; Taylor v. Taylor, 1 Atk., 386 ; Christy v. Courtenay, 13 Beav., 96. 
 
 5 Shales v. Shales. 2 Freem.,252; Elliot v. Elliot, 2 Ch. Cos., 231; 
 Scawin i\ Scawin. 1 Y. and C. C. C., 65. 
 
 6 Sidmouth v. Sidmouth, 2 Beav., 447 ; Scawin v. Scawin, 1 Y. & C. 
 C. C.. 65. 
 
 7 15 Sim.. 56. 
 
 8 See also Hoyes r. Kindersley, 2 Sm. and G., 195 ; Bone v. Pollard, 24 
 Beav.. 283. 
 
 9 Crabb r. Crabb. 1 M. and K., 511 ; Dummer v. Pitcher, 2 M. and K., 
 262 ; Jeans v. Cooke, 24 Beav., 513. 
 
 10 Murless v. Franklin, 1 Swanst., 13. 
 
96 CHILD FULLY ADVANCED. 
 
 LECTURE sum of 3,200, reduced annuities, which was all the 
 HI- property he possessed, into the name of his son, and died 
 at the age of ninety-four, having resided the last ten years 
 of his life with his son, who was a man of considerable 
 property, it was held that the transfer to the son operated 
 as an absolute gift to him free from any trusts. 1 
 Child fully If a purchase is made in the name of a child who is 
 advanced, already fully advanced by the parent, there will be a re- 
 sulting trust for the father ; 2 but if the child be not at all, 
 or only in part, advanced, the presumption of advance- 
 ment will not be turned into a trust. 3 
 
 Where lands are purchased in a certain place in the 
 name of a child by a father, but it appears that the father 
 is bound to settle lands so purchased in a particular man- 
 ner, there will not be any advancement, but the child 
 will be a trustee merely. 4 
 
 1 Hep worth v. Hep worth, L. R., 11 Eq., 10. 
 
 2 Lloyd v. Read, 1 P. Wms.. 608 ; Pole v. Pole, 1 Ves. S., 76. 
 
 3 Grey v. Grey. 2 Swanst.. 600 : Elliot v. Elliot, 2 Ch. Cas.. 231. 
 
 4 Blake r. Blake. 7 Bro. P. C., 241. 
 
LECTURE IV. 
 
 BENAMI TRANSACTIONS AND CONSTRUCTIVE TRUSTS. 
 
 Benami transactions Purchase in name of child Burden of proof Strangers 
 
 Benami transactions among Mahomedans Assent of benamidar unneces- 
 sary Disputing landlord's title Suit by landlord against beneficial les- 
 sees Strict proof required Oral evidence Proof of payment of pur- 
 chase-money Pleading benami transaction against purchaser under s. 317, 
 Civil Procedure Code Purchase at sale for arrears of revenue Sale by 
 benamidar Standing by Purchaser with notice Real owner may sue 
 benamidar Equitable owner Suit by creditors against benamidar 
 Transaction avowedly fraudulent Constructive trusts Renewal of leases 
 by trustee Principle of rule Instances Remedy Agent of trustee 
 Legal adviser gaining advantage by ignorance Gifts to persons in fiduciary 
 capacity Voluntary gift where no fiduciary relation when set aside Onus 
 of proof where fiduciary relation exists Where it does not Spiritual 
 influence Parent and child Persons in loco parentis Guardian and 
 ward Gift to legal adviser Extent of rule Gift in expectation of death 
 
 Strangers Principles on which Court acts Badges of fraud Indepen- 
 dent advice At whose instance set aside Aquiescence Confirmation and 
 acquiescence Laches. 
 
 IT will be convenient in this place to consider what is Benami 
 known as a benami transaction, that is to say, the practice {j'** " 
 of putting property into a false name. However objection- 
 able the system may be, it is legal and in common use. 1 
 
 " The Law of Benami," says Mr. Mayne, 2 " is in no sense 
 a branch of Hindu law. It is merely a deduction from the 
 well-known principle of equity, that where there is a pur- 
 chase by A in the name of B, there is a resulting trust of 
 the whole to A ; sind where there is a voluntary conveyance 
 by A to B, and no trust is declared, or only a trust as to 
 part, that there is a similar trust in favour of the grantor 
 as to the whole or as to the residue, unless it can be made 
 out that an actual gift was intended. 
 
 " In the English Courts an exception is made to this rule, Purchase 
 where the person in whose name the conveyance is taken ^"j" 16 of 
 or made is a child of the real owner, when the transaction 
 
 1 M. S. Beebee Nyamut r. Fuzl Hossein, S. D. A. of 1859, p. 139, 
 
 2 Hindu Law, s. 307. 
 
 13 
 
98 BURDEN OF PROOF. 
 
 LECTURE is presumed to have been made by way of advancement 
 IV - to him. But this exception has not been admitted in 
 India. There the rule is well established that in all cases of 
 asserted benami the true criterion is to ascertain from 
 whose funds the purchase-money proceeded. Whether the 
 nominal owner be a child or a stranger, a purchase made 
 with the money of another is primd facie assumed to be 
 made for the benefit of that other," 1 whether a daughter 
 or a son. 
 
 " The wives and mothers of the members of a joint 
 undivided Hindu family, so long as they continue to 
 live in the family, and are supported out of its income, 
 are just as much members of that family as their hus- 
 bands and sons ; and as unity of possession is one of 
 the essential characteristics of a joint undivided Hindu 
 family, no difference in the nature of the interests pos- 
 sessed by the different members thereof can affect the 
 presumption with which we have to deal in this case. So 
 far as the ordinary and usual course of things is concerned, 
 the practice of making benami purchases in the names of 
 female members of joint undivided Hindu families is just 
 as much rife in this country as that of making such pur- 
 chases in the names of male members and . . . .the pre- 
 sumption against such acquisition is no less strong in the 
 former case than in the latter." 2 
 
 Burden of The burden of proof lies on the party in whose name 
 proof. the property was purchased, to prove that he was solely 
 entitled to the legal and beneficial interest in such pur- 
 chased estate. 3 But although the habit of holding land 
 benami is inveterate in India, that does not justify the 
 Courts in making every presumption against apparent 
 ownership. 4 
 
 Strangers. If the person in whose name the purchase is effected, is 
 a stranger in blood or only a distant relative, he will 
 be undoubtedly primd facie a trustee ; and if he desires 
 
 1 Dhurm Das Pandey v. M. S. Shama Soondri Dibiah, 3 Moo. I. A., 
 229. 240 ; Gopeekrist Gosain r. Gungapersaud Gosain, 6 Moo. I. A., 53, 
 74 ; Moulvie Syud v. M. S. Bibee, 13 Moo. I. A., 232 ; Ruknadawla 
 Nowab Ahmed Ali Khan v. Hurdwari Mull, 5 B. L. R., 578. 
 
 2 Ch under Nath Moitro r. Kristo Komul Singh, 15 W. R., 357, per 
 Dwarkanath Mitter, J. See, however, Obhoy Churn Mookerjee v. Pun- 
 chanun Bose, Marsh., 564. 
 
 3 Gopeekrist Gosain v. Gungapersaud Gosain, 6 Moo. I. A., 53. 
 
 4 Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, 8 W. R., P. C. 
 Eul., 11. 
 
PURCHASE IN NAME OF STRANGER. 99 
 
 to contend that the primd facie character of the transac- LECTURE 
 tioii was not its real character, the burthen is on him. IV - 
 In Gopeekrist Gosaln v. Gungapersaud Gosain, 1 the pur- 
 chase was made in the name of an only son, and it 
 was argued that this circumstance changed the presump- 
 tion, and that what would be the presumption in the 
 case of a stranger does not exist between father and son ; 
 that the presumption is advancement, and that, there- 
 fore, the burden of proof was shifted. But the Judicial 
 Committee held, that there was no authority in Indian law, 
 no distinct case or dictum establishing or recognizing such 
 a principle or such a rule. "It is clear," said Knight 
 Bruce, L. J., 2 " that in the case of a stranger the presump- 
 tion is in favour of its being a benami transaction, that 
 is a trust ; but it is clear also that in this country, where 
 the person in whose name the purchase is made is one for 
 whom the party making the purchase was under an obli- 
 gation to provide, the case is different ; and it is said that 
 that ought to be deemed the law of India also, not be- 
 cause it is the law of England, but because it is founded 
 on reason and the fitness of things, if I may use the ex- 
 pression, or natural justice, that on such grounds it ought to 
 be considered the law of India. Now, their Lordships are 
 not satisfied that this view of the rule is accurate, and 
 that it is not one merely proprii juris. Probable as it may 
 be, that a man may wish to provide for his son to a certain 
 extent, and though it may be his duty to do so, yet there 
 are other considerations belonging to the subject ; among 
 others, a man may object to making his child independent 
 of him iii his lifetime, placing him in such a position as 
 to enable him to leave his father's house and to die, leav- 
 ing infant heirs, thus putting the property out of the con- 
 trol of the father. Various reasons may be urged against 
 the abstract propriety of the English rule. It is merely 
 one of positive law, and not required by any rule of 
 natural justice to be incorporated in any system of laws, 
 recognizing a purchase by one man in the name of ano- 
 ther to be for the benefit of the real purchaser. Their 
 Lordships, therefore, are not prepared to act against the 
 general rule, even in the absence of peculiar circumstances; 
 but in India there is what would make it particularly 
 objectionable, namely, the impropriety or immorality of 
 
 1 6 Moo. I. A., 53. - P. 75. 
 
100 
 
 DISPUTING LANDLORD'S TITLE. 
 
 LECTURE 
 IV. 
 
 Benami 
 transac- 
 tions 
 among 
 Mahome- 
 dans. 
 
 Assent of 
 benamidar 
 unnecessa- 
 ry- 
 
 Disputing 
 landlord's 
 title. 
 
 making an unequal division of property among children. 
 . . . . Their Lordships are, therefore, satisfied that, 
 according to the law by which this case must be governed, 
 the presumption in favour of its being a benami transac- 
 tion is different from that which would have existed by 
 the law of England." 
 
 In so far as the practice of holding and buying lands in 
 the name of another exists, that practice exists in India as 
 much among Mahomedans as among Hindus; and the judg- 
 ment in Gopeekrist Gosain v. Gungapersaud Gosain 1 and 
 the cases therein referred to are, at all events, authority for 
 the propositions that the criterion of these cases in India is 
 to consider from what source the purchase-money comes ; 
 that the presumption is, that a purchase made with the 
 money of A, in the name of B, is for the benefit of A ; 
 and that, from the purchase by a father, whether Mahome- 
 dan or Hindu, in the name of his son, you are not at 
 liberty to draw the presumption which the English law 
 would draw, of an advancement in favour of that son. 2 
 Although a purchase by a Mahomedan with his own 
 money of an estate in the name of his son, raises a 
 presumption of the son's name being used benami for his 
 father, proof that the father's object was to affect the 
 ordinary rule of succession as from him to that property 
 is sufficient to give, as respects strangers, a title to the son 
 independent of, and adverse to, the father. 3 
 
 The knowledge and assent of the person in whose name 
 the purchase is made is immaterial ; in the greater number 
 of instances of benami purchases they are made in the 
 names of persons ignorant at the time of their being so 
 made. 4 
 
 As a general rule, a tenant cannot dispute his landlord's 
 title. 5 The rule is founded upon the doctrine of estoppel, 
 which is, as Lord Coke says, " a curious and excellent sort 
 of learning." But it has been decided that the doctrine of 
 estoppel does not apply to benami transactions, and that 
 in this country a lessee may deny that the person in 
 whose favour he has executed a lease was the real lessor, 
 
 1 6 Moo. I. A., 53. 
 
 2 Moulvie Sayyud Uzhur All v. Mussummat Bebee Ultaf Fatima, 13 
 Moo. I. A., 232, 246 : see 2 Mad. H. C. Rep.. 27 (). 
 
 3 Ruknadawla Nowab Ahmed Ali Khan r. Hurdwari Mull, 5 B. L. 
 R., 578. 
 
 4 Gopeekrist Gosain v. Gnngapersaud Gosaiu, 6 Moo. I. A.. 74. 
 s See Evidence Act, I of 1872, s. 116. 
 
PROOF OF TITLE. 101 
 
 and beneficially entitled to the rent, and that he may prove LECTUBE 
 by parol evidence that the person who granted the lease IV - 
 was only a benamidar for a third party. In Donzelle v. 
 Kedarnath Chuckerbutty, 1 Paul,J., said : "In England, where 
 the usage denoted by benami transactions is wholly unknown, 
 it is supposed, and therefore assumed, that all deeds and 
 conveyances truly represent the titles of parties set forth in 
 them. Deeds are called solemn instruments ; they are 
 executed after considerable deliberation, and under the 
 guidance, and with the advice, of able legal advisers. In 
 England, and in fact wherever the English law prevails, and 
 English institutions exist, it is right to suppose that what 
 is stated in deeds and other similar documents represents 
 the true state of things, and consequently, parties should 
 not be allowed afterwards to question the truth of what 
 has been deliberately stated. But in this country, it be- 
 ing well known that documents are neither so drawn nor 
 executed as in England, and it being equally well known 
 that persons make statements wholly regardless of the 
 truth for present and ulterior purposes, it would be unsafe 
 and unjust to hold parties strictly to statements made by 
 them in deeds and other documents, and to apply the 
 technical doctrine of estoppel in the manner in which that 
 doctrine is applied in cases governed by English law." 
 
 Where a lease was taken benami in the names of three suit by 
 ladies, who for some time paid rent to the lessor, and who ia<.nl 
 were sued for rent by him on several occasions when he beneficial 
 obtained decrees, which he executed against their property, lessees, 
 the lessor was nevertheless allowed, when the ladies were 
 unable to pay any rent, to sue their husbands, who were the 
 beneficial lessees.^ 
 
 The Courts look with jealousy on benami transactions, g tr j ct p roo j 
 and a person who claims under such a title must prove his required, 
 case strictly, and he can only recover on the strength of 
 the case he asserts ; mere inferences will not be sufficient 
 to induce the Court to take away property from the 
 person in whose name it is held. 3 
 
 Where bond fide creditors of the ostensible owner of 
 property are claimants on that property, the Court will 
 
 1 7 B. L. R.. 720. 
 
 ' Debnath Roy Chowdhry r. Gudadhur Dey. 18 W. R., 132. 
 3 Sreemanchunder Dey v. Gopaul Chunder Chuckerbutty. 11 Moo. 
 I. A, 28 ; Nowab Azimut All Khan v. Hurdwaree Mull, 13 Moo. I. A., 3y. 
 
102 PROOF OF TITLE. 
 
 XECTURE require strict proof on the part of any one seeking to have 
 IV - it declared that he held it only benami. 1 Though there 
 may be in the evidence circumstances which may excite 
 suspicion, and doubt may be entertained with regard to the 
 truth of the case made, it is essential to take care that the 
 decision of the Court rests, not upon suspicion, but upon 
 legal grounds, established by legal testimony. 2 If it is once 
 established that a transaction is benami, the fact that the 
 deeds and proceedings bear the benamidar's name, is per- 
 fectly consistent with the benami case, and is of no essential 
 weight on the one side or the other in considering who is 
 
 Oral evi- th e principal. 3 It is not necessary that the nature of the 
 transaction should be proved by writing, but oral evidence 
 
 Proof of j s admissible, 4 The persons who seek to prove that a 
 
 payment of . J . , , . 
 
 purchase- transaction was benami, must prove the payment ot the 
 
 money. purchase-money ; and if they do so, any subsequent acts 
 
 done in the name of the nominal owner, will be explained 
 
 by reference to the original transaction ; whereas if they 
 
 cannot prove that payment, their case must necessarily fail.* 
 
 Pleading The real owner of property, who is actually in posses- 
 
 traifsactioii s ^ on ' ma y pl ead ^ II answer to a suit for redemption by a 
 
 against certified purchaser under s. 317 of the Civil Procedure 
 
 underT 1 " Code, that the purchase was made benami by the plaintiff 
 
 317, civil on his behalf. This section corresponds with s. 260 of Act 
 
 Code? dure VI11 of 185 ?> and it was decided b 7 the Priv y Council 
 that that section should be construed strictly and literally ; 
 that it was applicable only to a suit brought against the 
 certified purchaser to assert the beuauai title against him ; 
 that the Statute did not make benami purchases illegal ; 
 and that the real owner for whom the purchase was made, 
 if in possession, and if that possession had been honestly 
 obtained, might defend a suit brought by the holder of 
 the certificate, and show that he was the apparent owner 
 only and a mere trustee. 6 
 
 1 Rnknadawla Nowab Ahmed Ali Khan v. Hurdwari Mull, 5 B. L. R., 578. 
 
 2 Sreemanchunder Dey . Gopal Chuuder Chuckerbutty, 1 1 Moo. I. A., 
 28, 44: ; Faez Buksh Chowdry v. Fukeeroodeen Mahomed Ahassun Chow- 
 dry, 14 Moo. I. A., 234. 
 
 3 Rohee Lall v. Dindyal Lall, 21 W. R., 257. 
 
 4 Palaniyappa Chetti v. Arumugam Chetti, 2 Mad. H. C. R , 26 ; Tara 
 Monee Debia v. Shibnath Tulapatur, 6 W. R., 191. 
 
 5 M. S. Beebee Nyamut v. Fuzl Hossein, S. D. A. of 1859, p. 139. 
 
 8 M. ti. Buhuns Kowur v. Lalla Buhoree Lall. 14 Moo. I. A., 496 ; 
 Lokhee Narain Roy Chowdhry r. Kalypuddo Bandopadhya, L. R., 2 I. A., 
 J54. 
 
SALE BY BENAMIDAR. 103 
 
 The provisions of s. 260 of Act VIII of 1859 apply to LECTURE 
 ordinary benami purchases at execution-sales, but do not IV - 
 affect purchases of property by one member of a Hindu 
 family in his own name, but with the joint funds. Those 
 provisions, say the Privy Council, " were designed to check 
 the practice of making what are known as benami purchases 
 at execution-sales, i.e., transactions in which A secretly 
 purchases on his o^n account in the name of B. Their 
 Lordships think that they cannot be taken to affect the 
 rights of members of a joint Hindu family, who by opera- 
 tion of law, and not by virtue of any private agreement or 
 understanding, are entitled to treat as part of their 
 common property an acquisition howsoever made by a 
 member of a f amity in his sole name, if made by the use 
 of the family funds." 1 
 
 A purchase at a sale for arrears of revenue made by a Purchase 
 managing member of a ioint Hindu family in his own at sale for , 
 
 o^ o v / ;iri"t'."irs of 
 
 name, is not affected by the 21st section of Act I <>f 1845, revenue, 
 which provides that " any suit brought to oust the certified 
 purchaser as aforesaid on the ground that the purchase was 
 made on behalf of another person not the certified purchaser, 
 though by agreement the name of the certified purchaser was 
 used, shall be dismissed with costs;" and notwithstanding 
 anything contained in that section, the members of the joint 
 family may sue to enforce rights acquired by them under 
 such a purchase as against the managing member, though 
 he is the sole certified purchaser. 2 
 
 If property is purchased in the name of a benamidar. s.iie by 
 and all the indicia of ownership are placed in his hands, ben andar. 
 and the benamidar sells to a purchaser for valuable con- 
 sideration, the true owner can only get rid of the effect 
 of the alienation by showing that it was made without 
 his own acquiescence, and that the purchaser took with 
 notice of that fact. If the purchaser bought in good faith, 
 and without notice, he acquires a good title as against the 
 true owner and his heirs, or any subsequent purchaser 
 from them. 3 
 
 Parties who stand by, and permit another to hold him- standing 
 self out to the world as the real proprietor of an estate y ' 
 
 1 Bodh Singh Doodhooria v. Gunesh Chunder Sen. 12 B. L. R., 317, 330. 
 
 2 Toondun Singh c. Pokh Xarain Singh. 13 W. R.. :547. 
 
 3 Bhugwan Doss v. Upooch Singh. 10 W. R.. 185; Rackhaldoss Mo- 
 duck r. Bindoo Bashinee Debia, Marsh., 293 ; Kally Doss Mitter r. Gobind 
 Chunder Paul, Marsh., 569 ; Rennie v. Gunga Narain Chowdhry, 3 W. R., 10. 
 
104 PURCHASER WITH NOTICE. 
 
 LECTURE when in reality he is not so, and thus induce parties, inno- 
 IV - cent of the fraud, to lend their money upon such faith, are 
 not entitled to any consideration from a Court of equity 
 and good conscience. 1 
 
 Purchaser If a purchaser of an estate at its full value takes with 
 Wlth notlce - notice of a ti-ust, he is bound to the same extent and in 
 the same manner as the person of whom he purchased, 
 for, knowing another's right to the property, he throws 
 away his money voluntarily and of his own free will.' 2 
 Notice is either actual or constructive. What is sufficient 
 to put a purchaser upon inquiry is good notice, that is, 
 where a man has sufficient information to lead him to a 
 fact, he shall be deemed cognizant of it. It is sufficient to 
 charge a man with knowledge that he had that before him, 
 which, if he had used due diligence, would have afforded 
 the knowledge he desires. 3 And where there is a person 
 in possession of the estate other than the nominal owner, 
 the person in whose name the title-deed is, the purchaser 
 is bound to enquire what is the nature of his possession. 
 If he does not think fit to do so, he takes subject to the 
 rights of the person in possession. 4 
 
 Real owner The real owner of property may sue the benamidar, 
 beuamidar e ither to declare his title to the property, or to recover 
 possession of it, and may prove the benami nature of the 
 transaction. 5 Thus where a portion of a taluq, which was 
 confiscated by Government, really belonged to an innocent 
 person who had allowed her property to remain in the 
 name of the taluqdar, she was allowed to sue the Govern- 
 ment and the taluqdar to recover the confiscated property, 
 the Privy Council saying " the decree of confiscation against 
 her trustee could on no principle of law, equity, or good 
 conscience, be made to affect her, and certainly not to jus- 
 tify a sentence which, in effect, made her the sufferer for 
 his offence." 6 
 Equitable The equitable owner of property which is in the name 
 
 1 Nundun Lai v. Tayler, 5 W. R.. 37; Brojonath Ghose v. Koylash 
 Chunder Banerjee, 9 W. R., 593 ; Nidhee Singh v. Bissonath Dass, 24 
 W. R., 79. 
 
 2 Mancharji Sorabji Chulla v. Kongseo. 6 Bom. H. C. R., 0. C., 59 ; 
 Hakeem Meah r. Beejoy Patnee, 22 W. R., 8. 
 
 3 Mancharji Sorabji Chulla v. Kongseo, 6 Bom. H. C. R. , 0. C., 59. 
 
 4 Hakeem Meah v. Beejoy Patnee, 22 W. R., 8. 
 
 5 Tara Soonduree Debee r. Oojul Monee Dossee, 14 W. R., 111. 
 
 * M. S. Thukrain Sookraj Koowar v. The Government, 14 Moo. 
 I. A., 112. 
 
TRANSACTION AVOWEDLY FRAUDULENT. 105 
 
 of a trustee may prove the benami nature of the transac- LECTUBB 
 tion in a suit by the trustee to obtain possession of the 
 proper ty. 1 
 
 Creditors may enforce their claims against the property Suit by 
 of their debtor held for him benami. 2 Thus it has beem^^ 1 
 held, that a conveyance to female members of a Hindu benamidar. 
 family, the father continuing in absolute and uncontrolled 
 possession during his life, and his son entering into posses- 
 sion after his death, could not exclude the claim of the 
 son's creditors. 3 
 
 In many cases the object of the benami transaction is Transaction 
 avowedly to defraud creditors, and against them it is, as 
 we have seen, 4 void. 5 But as between the true owner and 
 the benamidar the question arises, whether the owner can 
 sue for the restitution of the property, alleging that the 
 sale was fraudulent, or can set up the defence of his own 
 fraud in an action by the benamidar. Formerly it was 
 considered that no title could be founded upon fraud, and 
 that if a man chose to convey his property to another 
 admittedly for the purpose of deceiving the public, defraud- 
 ing his creditors, and avoiding the ends of justice, he 
 disentitled himself to any relief, 6 even though no person 
 had been defrauded. 7 And the Courts refused to recognize 
 any distinction in favour of an ignorant female. 8 
 
 " Courts of Justice," said Jackson, J., "are designed for the 
 protection of honest suitors, and the enforcement of just 
 claims. They are not available as machinery to aid in the 
 carrying out of schemes of fraud. It is right that parties 
 should know, in making secret arrangements in regard to 
 
 1 Ramanugra Karain r. Hahasundur Kunwar, 12 B. L. R., 433. 
 
 2 Musadee Mahomed Cazum Sherazee r. Meerza Ally Mahomed Shoos- 
 try, 6 Moo. I. A., 27. 
 
 3 Hemanginee Dossee v. Jogendro Narain Roy, 12 W. R., 236. 
 * Ante, p 
 
 s See also Gnanabhai v. Srinivasa, 4 Mad. H. C., 84 ; Sankarappa v. 
 Kamayya. 3 Mad. H. C., 231 ; Pullea v. Ramalinga, 5 Mad. H. C., 368; 
 Tillak Chund r. Jitamal, 10 Bom., 206. 
 
 6 Roushun Khatoon Chowdrain v. The Collector of Mymensingh. 
 S. D. A. of 1846. p. 120 ; Brimho Mye Dibeea v. Ram Dolub Hor, S. D. A. of 
 1849, p. 276; Rajah Rajnarain Roy r. Juggunnath Pershad Mullick, S. D. A. 
 of 1851, p. 774 ; Ram Soonder Sandial r. Rajah Anundnath Roy, S. D. A. 
 of 1856, p. 542 ; Koonjee Singh i: Jankee Singh, S. D. A. of 1852, p. 838 ; 
 Keshub Chunder Sein v. Vyasmonee Dossia, 7 W. R., 118 ; S. M. Sukhimani 
 Dasi r. Mahendranath Dutt, 4 B. L. R. (P. C.), 16. 
 
 7 Hurry Sunker Mookerjee r. Kali Coomar Mookerjee, W. R., 1864, 
 p. 265. 
 
 8 Bhowany Sunkur Pandey r. Purein Bebee, S. D. A. of 1853, p. 639. 
 
 14 
 
106 TKANS ACTION AVOWEDLY FRAUDULENT. 
 
 LECTURE their property for fraudulent purposes, such as defeating 
 their creditors, that they are entering on a dangerous 
 course, and that they must not expect the assistance of 
 the Courts to extricate themselves from the difficulties in 
 which their own improbity has placed them." 1 
 
 So the Courts refused to allow a defendant to plead, that 
 a deed which was admittedly executed by him, was execut- 
 ed for the purpose of defrauding his creditors, on the 
 ground that, though a deed may be avoided on the ground 
 of fraud, the objection must come from a person neither 
 party nor privy to it, and that no man can allege his own 
 fraud to invalidate his own deed. 2 And the principle was 
 applied equally to persons claiming through the author of 
 the fraud. 3 
 
 But in the later cases these principles have not been fol- 
 lowed, and the original owner of property has been allow- 
 ed to plead that the transaction was fraudulent, the reason 
 being, that the real rights of the parties are to be ascertain- 
 ed, and if the plea were disallowed, the Courts would 
 assist the benamidar to obtain property by means of fraud. 
 Thus, in a suit brought by the plaintiff for registration of 
 her name in the place of a person from whom she said she 
 had purchased the property, one of the defendants contend- 
 ed that the plaintiff's vendors had purchased the property 
 benami for her (the defendant), and that she had been in 
 possession of it from the date of her purchase. It appeared 
 that there had been no consideration for the sale to the 
 plaintiff, and that it had been executed by the defendant's 
 husband for the purpose of defrauding his .creditors. In a 
 previous suit the defendant had stated that the plaintiff's 
 vendors were really the purchasers of the property. It 
 was held that she was not estopped by this statement from 
 now showing the real truth of the transaction. " In many 
 of these cases," said Couch, C.J., " the object of a benami 
 transaction is to obtain what may be called a shield against 
 a creditor ; but notwithstanding this, the parties are not 
 precluded from showing that it was not intended that the 
 
 1 Aloksoondry Goopto v. Horo Lai Roy, 6 W. R. , 287. 
 
 2 Obhoy Churn Ghuttuck v. Treelocbun Chatterjee, S. D. A. of 1859, p. 
 1639 : Ram Lall Dut >e. Kishen Chuiider Banerjee, S. D. A. of 1860, pp. 
 1, 436. 
 
 3 Luckhee Narain Chuckerbutty v. Tara Monee Dossee, 3 W. R., 92 ; 
 Purikheet Sahoo v. Radha Kisben Sahoo, 3 W. R., 221 ; Kalee Nath. Kur 
 v. Doyal Kristo Dob, 13 W. R , 87. 
 
CONSTRUCTIVE TRUSTS. 107 
 
 property should pass by the instrument creating the benami, LECTURE 
 and that in truth it still remained in the person who IV - 
 
 professed to part with it Although, no doubt, it is 
 
 improper that transactions of this kind should be entered 
 into for the purpose of defeating creditors, yet the real 
 nature of the transaction is what is to be discovered, the 
 real rights of the parties. If the Courts were to hold that 
 persons were concluded under such circumstances, they 
 would be assisting in a fraud, for they would be giving an 
 estate to a person when it was never intended that he 
 should have it." 1 
 
 A suit will lie in which the plaintiff does not sue to 
 render void an act done by him in fraud, or in other terms, 
 to be relieved from the effect of his own fraudulent act, 
 but simply sues to have an act legal in itself enforced, 
 though done with the motive of keeping property out of 
 the reach of his creditors. 2 
 
 The last kind of trust with which we have to deal is Constmc- 
 that known as a constructive trust. A constructive trust tive trU3ts ' 
 is one which the Court elicits by a construction put 
 upon certain acts of parties. Such a trust is raised 
 wherever a person clothed with a fiduciary character, as 
 for instance, a factor, 3 agent, 4 or partner, 5 gains some 
 personal- advantage, by availing himself of his situation 
 as trustee ; for, as it is impossible that a trustee should 
 be allowed to make a profit by his office, it follows that 
 so soon as the advantage in question is shown to have been 
 acquired through the medium of a trust, the trustee will 
 be decreed to hold for the benefit of his cestui que trust. 6 
 
 A common instance of a constructive trust is, where a Renewal O f 
 trustee of leasehold property renews the lease in his lease b y 
 
 trustee. 
 
 1 S. M. Debia Chowdhrain v. Biraola Soonduree Debia, 21 W. R., 422. 
 And see Gopeenath Naik v. Jadoo Ghose, 23 W. R., 42 ; Bykunt Nath 
 Sen v. Goboollah Sikdar, 24 W. R., 391 ; Param Singh v. Lalji Mai, I. L. 
 R.. 1 All., 403. As to the principles upon which English Courts proceed 
 where an attempt is made to create a trust for a fraudulent purpose, see 
 ante. p. 48. 
 
 2 Suboodra Beebee v. Bikromadit Singh, S. D. A. of 1858, pp. 543, 548. 
 
 3 East India Co. v. Henchman. 1 Ves. J.. 287. 
 
 4 Fawcett v. Whitehouse, 1 R. & M.. 132 ; Hichens r. Congreve. ib., 
 150, n; Brookrnan v. Rothschild, 3 Sim.. 153; Gillette. Peppercorn, 3 
 Beav., 78 ; Edwards r. Lewis, 3 Atk.. 538 ; Griffin v. Griffin, 1 Sch. and 
 Lef., 352 ; Mulvany r. Dillon, 1 B. and B., 417 ; Mulhallen o. Blarum, 
 3 De and Wai.. 317. 
 
 5 Bentley v. Craven. IS Beav., 75 ; Burton r. Wookey, 6 Madd., 367. 
 
 6 Lewin, 7th Ed., 98, 165. 
 
108 
 
 RENEWING LEASE. 
 
 LECTURE own name. 
 IV. 
 
 Principle 
 of rule. 
 
 Instances. 
 
 The leading case on this point is Keecli 
 v. Sandford. 1 There the lessor refused to renew the lease 
 for an infant, and the trustee then got a lease made to him- 
 self. Lord King, however, declared that the trustee must 
 hold the renewed lease for the infant, though no fraud was 
 alleged, saying : " This may seem hard, that the trustee is 
 the only person of all mankind who might not have the 
 lease ; bub it is very proper that rule should be strictly 
 pursued, and not in the least relaxed." 
 
 An executor de son tort cannot renew a lease in his own 
 name. 2 Where the renewed lease comprises lands not in- 
 cluded in the former lease, the trust will not attach to such 
 lands. 3 
 
 The principle upon which trustees and executors are not 
 allowed to take renewals of leases of trust-property to 
 themselves is, that it is for the public good that persons in 
 fiduciary positions shall not be allowed to reap any benefit 
 from the positions which they hold. 4 
 
 If a person who has a limited interest in a lease renews 
 it in his own name, he can only hold it as a trustee for the 
 other persons interested; 5 and if a settlor creates a trust 
 of a leasehold interest, he cannot renew the lease for his 
 own benefit. 6 
 
 If a trustee, upon his representations, acquires an absolute 
 interest in the trust-property by virtue of an Act of the 
 Legislature, he will be a trustee of the interest he has 
 acquired. 7 Where several persons are jointly interested in 
 a lease, one of them cannot obtain a renewal to himself, 8 as 
 for instance, in the case of one of several partners obtain- 
 ing a renewal of the lease of the partnership premises. 9 
 
 1 Sel. Cas., Ch., 61. 
 
 2 Mulvany v. Dillon, 1 B. & B., 417 ; Griffin v. Griffin, 1 Sch. & Lef., 
 352. 
 
 3 Acheson v. Fair, 3 Dr. & War., 612 ; Giddings v. Giddings, 3 Euss., 
 241. 
 
 4 Griffin v. Griffin, 1 Sch. & Lef., 354 ; Blewett v. Millett, 7 Bro. P. 
 C., 367. 
 
 5 James v. Dean, 11 Ves., 383. 
 
 8 Colegrave v. Manby, 6 Madd., 72 ; Tanner v. El worthy, 4 Beav., 487. 
 
 7 Cooper v. Phibbs, L. R., 2 H. L. Cas., 149: see also Yem v. Edwards, 
 3 K. and J., 564 ; 1 DeG. and J., 598. 
 
 8 Palmer v. Young, 1 Vern., 276 ; Hamilton v. Denny, 1 B. and B., 199 ; 
 Jackson v. Welsh, L. and G., t; Plunk, 346. 
 
 9 Featherstonhaugh v. Fenwick, 17 Ves., 311 ; Clegg v. Edmondson, 
 22 Beav., 125 ; 8 D. M. G., 787 ; Clegg v. Fishwick, 1 Mac. and G., 294 ; 
 Clements v. Hall, 2 DeG. and J., 173. 
 
REMEDY. 109 
 
 A mortgagee who renews a lease must hold it for the LECTURE 
 benefit of the mortgagor. 1 A trustee cannot, by fraudu- IV - 
 lently incurring a forfeiture of the lease of the trust-pro- 
 perty, obtain a renewal to himself. 2 So a tenant who 
 fraudulently fails to pay Government revenue, in conse- 
 quence of which the estate is sold, .and becomes the pur- 
 chaser, will be declared a trustee of the land for the lessor. 3 
 Where a trustee who has a right to obtain a renewal 
 sells the right, tlie trust will attach upon the purchase- 
 money in his hands. 4 
 
 The trustee will have to assign the renewed lease free Remedy, 
 from all incumbrances, except an under-lease made bond 
 fide at the best rent, 5 and he must account for mesne rents 
 and profits, 6 even though the lease has expired. 7 The lessor 
 will be entitled to be indemnified against covenants entered 
 into upon the renewal, to his costs, 8 and to money laid out 
 upon lasting improvements. 9 If the trustee has parted 
 with his interest in the renewed lease to a volunteer, 10 or 
 to a purchaser with notice, 11 the cestui que trust will, 
 nevertheless, be entitled to the same remedies as against 
 the trustee. 12 
 
 A mere agent of a trustee will not be made to account Agent of 
 to the cestui que trust as a constructive trustee, 13 unless tri 
 he becomes a party to the breach of trust, when he will be 
 liable to the extent of his participation. 14 
 
 A legal adviser is bound to give sufficient advice to his Legal ad- 
 client ; and if any advantage or property comes to him by his [n^ e a,f_ ain 
 
 vantage by 
 
 1 Rakestraw v. Brewer, 2 P. Wms., 510 ; Nesbitt v. Tredennick, 1 B. ignorance, 
 and B., 29. 
 
 2 Hughes v. Howard, 25 Beav., 575. 
 
 3 Balkrishna Vasudev v. Madhavrav Narayan, I. L. R., 5 Bomb., 73. 
 
 4 Owen v. Williams, Amb., 734. 
 
 5 Bowles v. Stewart, 1 Sch. and Lef., 230. 
 
 6 Mulvany v. Dillon, 1 B. and B., 109 ; Eyre v. Dolphin, 2 B. and B., 
 290. 
 
 7 Eyre v. Dolphin, 2 B. and B. , 290. 
 
 8 Giddings v. Giddings, 3 Russ., 241 ; James v. Dean, 11 Ves., 383 ; 
 Lawrence v. Maggs, 1 Eden, 453. 
 
 9 Walley v. Walley, 1 Vern., 484 ; Lawrence v. Maggs, 1 Eden, 453. 
 
 10 Bowles v. Stewart, 1 Sch. and Lef., 209 ; Eyre v. Dolphin, 2 B. and 
 B.. 290. 
 
 11 Walley v. Walley, 1 Vern., 484 ; Eyre v. Dolphin, 2 B. and B., 290; 
 Parker v. Brooke, 9 Ves., 583 ; Coppin v. Fernyhough, 2 Bro. C. C., 291. 
 
 12 See Sahebzada Singh v. Ghundaree Roy, 1 W. R., 256. 
 
 13 Myler v. Fitzpatrick, 6 Madd., 360 ; Davis v. Spurling, 1 R. and M., 
 64 ; Maw v. Pearson, 28 Beav., 196. 
 
 14 Portlock v. Gardner, 1 Hare, 606 ; Bodenham v. Hoskyns, 2 D. M. 
 G., 903. 
 
110 LEGAL ADVISER AND (JLIENT. 
 
 LECTURE ignorance or the neglect of his duty, he will be a construc- 
 I ^- tive trustee for the benefit of the person who would have 
 benefited, if the adviser had done his duty. "Whether," 
 said Lord Eldon, 1 " you meant fraud or not, you who have 
 been wanting in what I conceive to be the duty of an 
 attorney, if it happens that you get an advantage by that 
 neglect, you shall not hold that advantage, but you shal] be 
 a trustee of the property for the benefit of that person who 
 would have remained entitled to it, if you had known 
 Avhat you ought as an attorney to have known ; and not 
 knowing it, because you ought to have known it, you shall 
 not take advantage of your own ignorance. It is too 
 dangerous to mankind, that those who are bound to 
 advise, and who being bound to advise ought to be able 
 to give sound and sufficient advice, it is too dangerous to 
 allow that they shall ever take advantage of their own 
 ignorance of their own professional ignorance to the 
 prejudice of others." 2 
 
 When a barrister prepared a will for a friend, of which 
 he was appointed executor, and in that capacity became 
 entitled to the personal estate of the testator, he was 
 decreed to hold it as a trustee for the next-of-kin. " The 
 testator's intention, " said Lord Chancellor Hart, " was not 
 directed to his personal estate, and he thought he was only 
 disposing of his real estate, it became the bounden duty 
 of the defendant to have informed him, that if he made 
 no disposition of his personal estate, the law, in conse- 
 quence of his being the executor, would entitle him to 
 retain it for his own benefit. He was bound to inquire of 
 the testator, in plain and distinct terms, whether it was his 
 will that the defendant should so retain the personal estate 
 
 for his own benefit The defendant has stated that 
 
 he did not know the rule of law which gives to an executor 
 the undisposed of residue. Be it so ; but in the adminis- 
 tration of justice, what ought to result from that igno- 
 rance ? The testator relied on the defendant's knowledge of 
 law as well as on his integrity. Will the avowal of ignorance 
 of the law in the legal adviser justify the disinheriting of 
 the testator's relations in favour of that adviser." 3 
 
 1 Bulkley v. Wilford, 2 C. and F., 102. 
 
 2 And see Segrave v. Kirwan, Beat., 157 ; Xanney r. Williams, 22 
 Beav., 452. 
 
 3 Segrave v. Kirwan. Beat.. 157 : and see Bulkley r. Wilford, 2 C. -Sc F., 
 102 ; Garrett r. Wilkinson, 2 DeG. and Sm.. 244. 
 
GIFT TO PERSONS IN FIDUCIARY RELATION. Ill 
 
 Courts of equity exercise jurisdiction to set aside volun- LECTURE 
 tary gifts made to persons standing in a fiduciary relation 
 to the donor. The relief is granted upon the principle of GiftT~to 
 public policy, and applies to all the variety of relations in P* " 8 in 
 which dominion may be exercised by one person over capacity 7 . 
 another. 1 For instance, if a legal, medical, or spiritual ad- 
 viser by availing himself, of his situation as such adviser, 
 gains some pecuniary advantage from the person whom he 
 advises, he will be treated as a trustee. 2 
 
 A voluntary gift to a person who does not stand in any Voluntary 
 fiduciary or confidential position towards the donor, will j; __ 
 not be set aside if there was no fraud, surprise, or undue relation 
 influence, and the donor acted of his own free will, however ^'^ ' 
 improvident the gift may be. In Villiers v. Beaumonl? 
 Lord Nottingham said, that if a man will improvidently 
 bind himself up by a voluntary deed, and not reserve 
 liberty to himself by a power of revocation, the Court will 
 not loose the fetters he hath put upon himself, but he must 
 lie down under his own folly ; for if the Court gave relief 
 in such a case, it would establish the proposition that a 
 man can make no voluntary disposition of his estate, but by 
 his will only, which would be absurd. Primd facie such a 
 gift is good, but it will be set aside if the donor can prove 
 fraud, surprise, or undue influence. 4 
 
 Where the fiduciary relation exists, the onus of proving Onus of 
 that the transaction is righteous is on the donee. 5 The where 
 Evidence Act provides (s. Ill) that where there is a question fiduciary 
 as to the good faith of a transaction between parties, one of 
 whom stands to the other in a position of active confidence, 
 the burden of proving the good faith of the transaction 
 is on the party who is in a position of active confidence. 
 And the following illustrations are given : (a) " The good 
 faith of a sale by a client to an attorney is in question in 
 a suit brought by the client. The burden of proving the 
 good faith of the transaction is on the attorney ; (6) the 
 
 1 Huguenin r. Basley, 14 Ves., 273 ; Dent r. Bennett. 4 M. and Cr., 
 277; Pushong r. Munia Halwani, 1 B. L. R., A. C., 95. And see Contract 
 Act. IX of 1872. ss. 1522. 
 
 2 See Act I of 1877, s. 2, illus. (*). 
 8 1 Vern., 100. 
 
 4 Hunter v. Atkins, 3 M. and K., 113 ; Toker r. Toker, 31 Beav.. 629. 
 
 5 Gibson r. Jeyes, 6 Ves.. 266 : Wright v. Vanderplank. 8 D. M. G., 
 133 ; Hoghton c. Hoghton. 15 Beav., 299 ; Cooke v. Lamotte, ibhl. I'-'H : 
 Sharp r. Leach. 31 Beav., 491 ; Smith r. Kay, 7 H. L. Cas.,780 ; Turner r. 
 Collins, L. R., 7 Ch., 329. 
 
112 PARENT AND CHILD. 
 
 LECTURE good faith of a sale by a son just come of age to his father is 
 IV - in question in a suit brought by the son. The burden of 
 
 proving the good faith of the transaction is on the father." 
 Where it Where the fiduciary relation does not exist, a person who 
 does not. ^ a i ces a benefit under a voluntary gift which is not subject to 
 a power of revocation, has thrown upon him the burden of 
 proving that the gift was meant by the donor to be irrevo- 
 cable. A gift not meant to be irrevocable, but not subject to 
 a power of revocation, may be set aside at the instance of 
 the donor. 1 Even where the matter appears to rest upon a 
 good consideration, as where there is a sale, the Court will 
 inquire into the circumstances, with a view to ascertain 
 whether undue influence was exercised or not. 2 
 Spiritual If the donee is a person who exercises influence by means 
 influence. o f \^\ s spiritual ascendency over the donor, the gift will be 
 
 set aside. 3 
 
 Parent and The Court looks with suspicion upon gifts made by a 
 child. child to a parent shortly after attaining majority, and 
 such gifts will be set aside if there is any appearance of 
 undue influence having been exercised by the parent. Where 
 a father who had advanced a son during his minority 
 took a bond from the son on his attaining majority for a 
 much greater amount than the sums advanced, the son 
 being without means, the transaction was set aside ; Lord 
 Northington saying : " If the obligor gives a voluntary 
 bond, and never complains of any imposition or hardship 
 in obtaining it ; the Court will only postpone it to creditors, 
 and not set it aside for other volunteers. Nay, if it be 
 given with advice and deliberation, this Court will not set it 
 aside for the obligor. But if a man gives a voluntary bond 
 for more than he is able to pay, the transaction speaks 
 weakness on the one side and a sort of imposition on the 
 other." 4 The Court will not interfere where the transaction 
 is fair and reasonable, and no undue influence has been exer- 
 cised. 5 The principles upon which the Court acts in trans- 
 actions of this nature were thus stated by Lord Langdale in 
 Archer v. Hudson. 6 " Nobody has ever asserted that there 
 
 1 Wollaston v. Tribe, L. R, 9 Eq., 44. 
 
 2 Clarke v. Malpas, 31 Beav.. 80 ; Baker r. Monk, 33 Beav., 419. 
 
 3 Huguenin v. Basley, 14 Ves., 273 ; Norton v. Relly, 2 Eden, 286 ; 
 Nottidge v. Prince, 2 Giff., 246 ; Lyon v. Home, L. R., 6 Eq., 655. 
 
 4 Carpenter v. Harlot, 1 Eden, 338. 
 
 5 Blackborn r. Edgeley, 1 P. Wms.. 600, 606 ; Jenner r. Jenner. 2 
 DeG. F. and J., 359 ; Baker c. Bradley, 7 D. M. G., 597. 
 
 7 Beav., 551, 560. 
 
GUARDIAN AND WARD. 113 
 
 cannot be a pecuniary transaction between a parent and child, LECTURE 
 the child being of age; but everybody will affirm in this Court, IV - 
 that if there be a pecuniary transaction between parent and 
 child, just after the child attains the age of twenty-one 
 years, and prior to what may be called a complete ' eman- 
 cipation,' without any benefit proving to the child, the 
 presumption is, that an undue influence has been exercised 
 to procure that liability on the part of the child, and that 
 it is the business and the duty of the party who endeavours 
 to maintain such a transaction, to show that that presump- 
 tion is adequately rebutted ; and that it may be adequately 
 rebutted is perfectly clear. This Court does not interfere 
 to prevent an act even of bounty between parent and child, 
 but it will take care (under the circumstances in which the 
 parent and child are placed before the emancipation of the 
 child) that such child is placed in such a position as will 
 enable him to form an entirely free and unfettered judg- 
 ment, independent altogether of any sort of control." 
 
 The principles upon which the Court acts in dealing Persons 
 with transactions between parent and child, will be appli- %j pa ~ 
 ed in dealings between a minor who has recently attained 
 his majority, and a person who has stood towards him in 
 loco parentis. 1 
 
 So, gifts from a ward to a guardian made shortly after Guardian 
 the ward's attaining majority will be set aside if there is aD 
 any suspicion of undue influence on the part of the guardian. 
 " Where," said Lord Hardwicke, 2 " a man acts as guardian, 
 or trustee in the nature of a guardian, for an infant, the 
 Court is extremely watchful to prevent that person's taking 
 any advantage immediately upon his ward or cestui que 
 trust coming of age, and at the time of settling accounts or 
 delivering up the trust, because an undue advantage may 
 be taken. It would give an opportunity either by flattery 
 or force, by good usage unfairly meant, or by bad usage 
 imposed, to take such an advantage ; and therefore the 
 principle of the Court is of the same nature with relief in 
 this Court on the head of public utility .... All 
 depends upon public utility ; and therefore the Court will 
 not suffer it, though, perhaps, in a particular instance there 
 may not be actual unfairness .... The rule of the 
 
 1 Archer r. Hudson, 7 Beav., 551 ; Revett r. Harvey. 1 S. and S., 502 ; 
 Dettraar r. Metropolitan and Provincial Bank, 1 H. and M., 641. 
 
 2 Hylton r. Hylton, 2 Ves., 549. 
 
 15 
 
114 
 
 GIFT TO LEGAL ADVISER. 
 
 Gift to 
 legal ad- 
 viser. 
 
 LECTURE Court as to guardians is extremely strict, and in some cases 
 IV - does infer some hardship ; as where there has been a great 
 deal of trouble, and he has acted fairly and honestly, that 
 yet he shall have no allowance ; but the Court has estab- 
 lished that on great utility, and on necessity, and on this 
 principle of humanity, that it is a debt of humanity that 
 one man owes to another, as every man is liable to be in the 
 same circumstances." 1 If, however, the relation of guardian 
 and ward has been completely determined, and the pre- 
 sumption of undue influence has been successfully rebutted, 
 a gift from the ward will be allowed to hold good. 2 
 
 A legal adviser, whether counsel, attorney, or vakeel, 
 can take no benefit from his client while he is acting for 
 him in a professional capacity, beyond his regular profes- 
 sional charges. In order to support a gift from a legal 
 adviser to his client, it must appear that the relation has 
 been dissolved. 3 If it is endeavoured to make the gift 
 good, by expressing that valuable consideration has been 
 given by the legal adviser, evidence will be admissible to 
 prove that the consideration is fictitious. 4 
 
 If there is no suit pending, and no undue influence 
 has been exercised by the legal adviser, a gift to him may- 
 be supported, 5 and he may take a benefit under a will 
 if it can be proved that the testator acted freely. 6 
 
 In the class of cases we have just considered, undue in- 
 fluence is presumed to have been exerted until the contrary 
 is proved, and the person benefited is bound to show that 
 all the terms and conditions of the contract are fair, 
 adequate, and reasonable. 7 
 
 The rule extends to all the relations in which dominion 
 may be exercised by one person over another, even though 
 
 Extent of 
 
 1 See also Ramkissen Pajoshee Mabapatur r. Hurrykissen Mahapatur, 
 15 S. D. A., 274, and the notes to Huguenin r. Basley, 2 "VVh. and T. L. C., 
 585. 
 
 2 Hatch v. Hatch, 9 Ves., 296 ; Hunter v. Atkins. 3 M. and K., 113. 
 
 3 Moore v. Prance, 9 Hare, 299 ; Walker v. Smith, 29 Beav., 394 ; 
 Gardener v.. Ennor, 35 Beav., 549 ; Broun v. Kennedy, 4 D. G. J. and S., 217; 
 Rujabai v. Ismail Ahmed, 7 Bom., O. C., 27 ; Pushong r. Muuia Halwani, 
 1 B. L.R, A.C., 95. 
 
 1 Tomson v. Judge. 3 Drew., 306. 
 
 s Oldham v. Hand, 2 ,Ves., 259; Harris v. Trcmenheere, 15 Ves., 34 ; 
 Nuthoo Lall v. Buddree Pershad, 1 N. W. P., 1. 
 
 6 Hindson v. Weathcrill, 5 D. M. G., 301 ; Walker v. Smith, 29 Beav.. 
 394, 
 
 7 Pushong r. Munia Halwani, 1 B. L. R., A. C., 95 ; Nuthoo Lall r. 
 Buddree Pcrshad, 1 N. W. P., 1 ; and see ante, p. 111. 
 
HUNTER V. ATKINS. 115 
 
 no actual fiduciary relationship in the strictest sense of LECTURE 
 the words exists. Thus gifts by patients to medical attend- Iv - 
 ants, 1 by a younger sister to an elder, 2 by a woman to 
 her intended husband, 3 and gifts obtained by operating 
 on the fears of another 4 have been set aside. 
 
 A voluntary deed, which contains no power of revocation, Gift in ex- 
 executed in the expectation of immediate death, will be potation of 
 set aside, even though there has been no undue influence, dc 
 if the settlor did not intend that it should be operative 
 in case he recovered. 5 
 
 The Court has power to relieve against strangers. " Who- Strangers, 
 ever, " said Wilmott, C.J., 6 " receives the gift, must take 
 it tainted and infected with the undue influence and im- 
 position of the person procuring the gift ; his partitioning 
 and cantoning it out among his relations and friends will 
 not purify the gift, and protect it against the equity of 
 the person imposed upon. Let the hand receiving it be 
 ever so chaste, yet, if it comes through a polluted channel, 
 the obligation of restitution will follow it." But the 
 Court will not interfere as against a bond fide purchaser 
 without notice. 7 
 
 The principles upon which Courts of Equity act in set- Principles 
 ting aside voluntary gifts to persons standing in a fiduciary com acts 
 relation to the donor were thus stated by Lord Brougham in 
 Hunter v. Atkins : 8 " There are certain relations known to 
 the law as attorney, guardian, trustee ; if a person standing 
 in these relations to client, ward, or cestui que trust, 
 takes a gift or makes a bargain, the proof lies upon him 
 that he has dealt with the other party, the client, ward, 
 &c., exactly as a stranger would have done, taking no 
 advantage of his influence or knowledge, putting the other 
 party on his guard, bringing everything to his knowledge 
 which he himself knew. In short, the rule rightly con- 
 sidered is, that the person standing in such relation must, 
 before he can take a gift, or even enter into a transaction, 
 place himself exactly in the same position as a stranger 
 
 1 Dent v. Bennett, 4 My. and Cr., 269. 
 
 2 Harvey v. Mount, 8 Beav., 439. 
 
 3 Page . Home, 11 Beav.. 227. 
 
 4 Williams v. Bayley, L. R., 1 H. L., 200. 
 s Forshaw v. Welsby, 30 Beav., 243. 
 
 6 Bridgeman v. Green. Wilm., 58. 
 
 7 Blackie r. Clark. 15 Beav., 595 ; and see further the notes to Hu- 
 guenin v. Basley. 2 Wh. and T. L. C., 550. 
 
 s 3 M. and K.. 135. 
 
116 HUNTER V. ATKINS. 
 
 LECTURE would have been in, so that he may gain no advantage 
 IV - whatever from his relation to the other party beyond 
 what may be the natural and unavoidable consequence of 
 kindness arising out of that relation. A client, for ex- 
 ample, may naturally entertain a kindly feeling towards 
 an attorney or solicitor by whose assistance he has long 
 benefited ; and he may fairly and wisely desire to benefit 
 him by a gift, or, without such an intention being the 
 predominating motive, he may wish to give him the ad- 
 vantage of a sale or a lease. No law that is tolerable 
 among civilized men -men who have the benefits of civility 
 without the evils of excessive refinement and overdone 
 subtlety can ever forbid such a transaction, provided the 
 client be of mature age and of sound mind, and there be 
 nothing to show that deception was practised, or that 
 the attorney or solicitor availed himself of his situation 
 to withhold any knowledge, or exercise any influence 
 hurtful to others and advantageous to himself. In a word, 
 standing in the relation in which he stands to the other 
 party, the proof lies upon him (whereas in the case of a 
 stranger, it would lie on those who opposed him) to show 
 that he has cut off, as it were, the connection which bound 
 him to the party giving or contracting, and that nothing 
 has happened which might riot have happened had no 
 
 such connection subsisted The rule, I think, 
 
 cannot be laid down much more precisely than I have 
 stated it, that where the known and defined relation of 
 attorney and client, guardian and ward, trustee and cestui 
 que trust, exists, the conduct of the party benefited must 
 be such as to sever the connection, and to place him in the 
 same circumstances in which a mere stranger would have 
 stood, giving him no advantage, save only whatever kind- 
 ness or favour may have arisen out of the connection ; 
 and that where the only relation between the parties is 
 that of friendly habits, or habitual reliance on advice and 
 assistance, accompanied with partial employment in doing 
 some sort of business, care must be taken that no undue 
 advantage shall be made of the influence thus acquired. 
 The limits of natural and often unavoidable kindness 
 with its effects, and of undue influence exercised or unfair 
 advantage taken, cannot be more rigorously defined. Nor 
 is it, perhaps, advisable that any strict rule should be laid 
 down any precise line drawn. If it were stated that 
 certain acts should be the only tests of undue influence, or 
 
BADGES OF FRAUD. 
 
 that certain things should be required in order to rebut the LECTUBB 
 presumption of it, such as the calling in a third person, IV - 
 how easy would it be for cunning men to avoid the one, 
 or protect themselves by meaus of the other, and so place 
 their misdeeds beyond the denunciations of the law, and 
 secure the fruits of them out of its reach ! If any one 
 should say that a rule is thus recognized, which from its 
 vagueness cannot be obeyed, because it cannot well be dis- 
 cerned, the answer is at hand. All men have the inter- 
 preter of it within their own breasts ; they know the 
 extent of their influence, and are conscious whether or not 
 they have taken advantage of it in a way which they 
 would feel indignant that others similarly circumstanced 
 should do with regard to themselves. 
 
 Tiie circumstances of each case, therefore, are to be care- 
 fully examined and weighed, the general rule being of a 
 kind necessarily so little capable of exact definition ; and on 
 the result of the inquiry, we are to say Has or has not an 
 undue influence been exerted an undue advantage taken ? " 
 
 It has been held that a fictitious consideration inserted in Rad^ea of 
 the deed is a badge of fraud. 1 So, where there has been 
 concealment from those who ought naturally to have been 
 made acquainted with the transaction. 2 But is not neces- 
 sary that there should have been such acts as these in order 
 to enable the Court to interfere. The Court will inquire 
 whether the grantor not only executed the deed volun- 
 tarily, but also whether he had a full knowledge of the 
 consequences of his act. 3 The mere fact that the deed 
 was read over to him is not sufficient, it must be proved 
 that he understood its nature. 4 And the case will be 
 stronger against the donee when the deed was not pre- 
 pared under the donor's instructions nd was not read 
 over to him. 5 Where persons stand in a fiduciary relation 
 to each other, the party benefited must be able to show that indepen- 
 the donor had competent and independent advice, and the 
 capacity of the donor is of importance. 6 
 
 1 Bridgeman v. Green. 2 Ves., 627 ; Gibson i: Russell, 2 Y. & C. C. C., 104. 
 - Jevers v. Jevers, 1 Bro. P. C., 272 ; Scrope v. Offley, ib., 276. 
 
 3 Huguenin v. Basley, 14 Ves., 300 ; Pratt v. Barker, 4 Russ., 507 ; 
 Toker v. Toker. 31 Beav.. 629. 
 
 4 Hoghton v. Hoghton. 15 Beav., 278 ; Anderson r. Elsworth, 3 Giff., 154. 
 
 5 Clarkson v. Hanway. 2 P. W., 203. 
 
 Griffith r. Robins, 3 Madd.. 191 ; Baker v. Bradley, 7 D. M. G., 597 ; 
 Rhodes r. Bates, L. R., 1 Ch., 252 ; Rujabai -r. Ismail Ahmed, 7 Bom., 
 0. C., 35. 
 
118 
 
 ACQUIESCENCE AND CONFIRMATION. 
 
 LECTURE 
 IV. 
 
 At whose 
 instance 
 set aside. 
 
 Acquies- 
 cence. 
 
 Confirma- 
 tion and 
 acquies- 
 cence. 
 
 When undue influence is proved, the deed may be set 
 aside at the instance of the donor or grantor, or after his 
 death, of his representatives or devisees. 1 If the donor or 
 settlor himself requires the aid of the Court to transfer a 
 fund in Court, which is the subject of the settlement, to 
 the donee, the Court cannot refuse its assistance, whether 
 the settlement may or may not, be impeachable upon the 
 ground of undue influence. 2 
 
 If the subject-mutter of the gift can be traced into the 
 possession of third persons, it will be affected by the fraud or 
 undue influence which attached to the original transaction. 3 
 
 The cestui que trust, if competent to contract, must 
 seek his remedies within a reasonable time, otherwise he 
 may be barred by acquiescence. 4 
 
 Although the evidence may show the existence of undue 
 influence at the time of the settlement or gift, it will not 
 be set aside, if the settlor has, during a course of years and 
 in several transactions, acted upon it and treated it as in 
 all respects valid. 5 But acquiescence must be shown to 
 be after the discovery of the right to impeach a transac- 
 tion, 6 in which case it will preclude tha parties acquies- 
 cing from raising objections afterwards. 7 And where a 
 client dealing with his solicitor executes a voidable instru- 
 ment, and afterwards chooses to confirm it by will, the con- 
 firmation will be effectual. 8 In order that acquiescence or 
 confirmation may be valid, there must be no continuing 
 influence, as otherwise there would be no free agency on 
 which to found acquiescence. 9 And where a confidential 
 and fiduciary relation is shown to exist, its continuance will 
 be presumed, unless there is direct evidence of its termina- 
 tion. 10 
 
 1 Anderson r. Elsworth, 3 Giff., 154. 
 
 2 Re Metcalfe, 2 D. J. & S.. 122. 
 
 3 Bridgeman r. Green. 2 Ves., 627 ; Huguenin v. Basley, 14 Ves., 
 274. In these cases, however, the persons actually in possession or en- 
 joyment of the property so obtained were not purchasers for value 
 without notice, but mere volunteers. 
 
 4 Clegg v. Edmondson, 8 D. M. G., 787 ; Peddamuthulaty r. Timma 
 Reddy. 2 Mad. H. C., 270. 
 
 5 Brown r. Carter. 5 Ves., 862 ; Wright r. Vanderplank. 2 K. & J.. 1 ; 
 affd.. 2 Jur., N. S., 599 ; Dirosdale v. Dimsdale, 3 De., 556 ; Jarratt r. 
 Aldam, L. R., 9 Eq.. 463. 
 
 6 King v. Savery. 5 H. L. Cas.. 627. 
 
 7 Skottowe r. Williams. 3 D. F. & J., 535. 
 
 8 Stump v. Gaby, 2 D. M. G.,623. 
 
 9 Hatch P. Hatch, 9 Ves., 292 ; Sharp v. Leach, 31 Beav., 491. 
 
 10 Rhodes v. Bates, L. R., 1 Ch, } i-Oi'. 
 
LACHES. 119 
 
 Laches and considerable delay in applying to the Court LECTUBE 
 to set aside an instrument impeachable by reason of undue IV - 
 influence will, in general, be a bar to relief. 1 Laclie3 
 
 Trustees are bound to protect the interests of their Co 
 cestuis que trustent, and are justified, when they are called 
 upon to transfer a fund pursuant to an arrangement between 
 persons standing in a fiduciary relation to one another, in 
 taking every precaution to ascertain that no fraud or undue 
 influence has been exercised by the person to whom the 
 fund is to be transferred. If, however, they act capriciously, 
 or, having ascertained that the transaction is not one which 
 the Court would set aside, they persist in refusing to trans- 
 fer, and so render a suit necessary, they will be liable to pay 
 costs. 2 
 
 1 Barwell v. Barwell, 34 Beav., 371 ; Skottowe v. Williams, 3 D. F. 
 & J., 535 : see Proctor r. Robinson, 35 Beav., 329 ; Turner r. Collins, 
 L. R.. 7 Ch., 329. 
 
 - See Firmin r. Pulham, 2 DeG. & S., 90 ; lie Cater, 25 Beav., 361 ; 
 King v. King, 3 Jur., N. S., 609 ; Re Metcalfe, 2 D. J. & S., 122. 
 
LECTURE V. 
 
 PARTIES TO THE TRUST. 
 
 Acceptance of trust Trustees also executors Acting as agent Executor of 
 an executor Renunciation of probate Partial acceptance Recitals in 
 deed as to state of trust Trustee in fact Liability of trustee By 
 whom trust may be created General rule The Sovereign Corpora- 
 tions Prizes of war Infants Married women Stridhan Alien 
 Persons convicted of certain offences Grantee under sanad Who may be 
 a cestui que trust The Government Corporations Aliens Who may be 
 a trustee. Persons under disability Aliens The Sovereign Not the Go- 
 vernment of India Corporation Presidency banks Married women 
 Insolvent Cestuis que trustent Relatives Number of trustees Dis- 
 claimer How made Gift to trustee or executor. 
 
 Accept- A TRUSTEE may accept the trust by signing the trust-deed 
 
 trust. 
 
 when there is one, 1 or, in the case of a will, by express de- 
 
 claration of his assent. Primd facie he is assumed to assent 
 to a devise, 2 and his acceptance may be implied from his 
 neglect to disclaim for a long time, such as twenty years, 3 
 even though he has not acted in the trust. 4 And accept- 
 ance may be implied from acts of a trustee in relation to 
 the trust-estate. 5 It is difficult to lay down any general 
 rule as to what acts of a trustee will amount to acceptance. 
 An executor who takes out probate of the will of his tes- 
 tator, thereby accepts the office, and becomes responsible 
 for any loss incurred by the acts of his co-executor ; 6 he can- 
 not escape responsibility on the ground that he has taken no 
 
 1 Buckeridge r. Glasse, 1 Cr. and Ph., 131. 
 
 2 Doe v. Harris, 16 M. & W., 517 ; Lord Montford v. Lord Cadogan, 
 19 Ves., 638. 
 
 3 Wise r. Wise, 2 J. & Lat., 402. 
 
 4 See Re Uniacke, 1 J. & Lat., 1 : In re Needham, ib., 34. 
 
 5 Lord Montford r. Lord Cadogan, 19 Ves., 638. 
 
 6 Mucklow . Fuller, Jac., 198 ; Booth v. Booth, 1 Beav., 135. 
 
ACCEPTANCE OF THE OFFICE. 121 
 
 active part in the administration of the estate. 1 So if he LECTURE 
 interferes with the assets of the testator, he will be liable v - 
 even though he does not take out probate. 2 Thus, where 
 a co-executor who had not proved, after the death of the 
 executor who had proved, gave a power-of-attorney to 
 sell a small part of the testator's assets, which was not 
 acted upon, and had not further intermeddled, it was held 
 that he had accepted the office. 3 
 
 So the joining in an assignment of a lease, for the pur- 
 pose of passing the legal estate, has been considered to 
 be of itself sufficient evidence that the executor had accepted 
 and acted in the trusts of the will : 4 and an executor will 
 be liable if he exercises acts of authority or ownership 
 over the testator's estate. 5 
 
 If executors are also appointed trustees, taking out Trustees 
 probate amounts to an acceptance of the trusteeship as alsi) exe - 
 
 11 p J.V. j. i>- s cutors. 
 
 well as ot the executorsnip. 
 
 If a trustee under a will does not expressly accept, but Acting as 
 receives the rents and profits of the trust-property, he can- a s eilt - 
 not escape from liability to account, on the ground that he 
 acted merely as agent or factor. 7 In Lowry v. Fulton* 
 a trustee who acted as agent, and who had not proved, 
 was held not to have accepted the trust; but that was 
 a peculiar case, and cannot be considered as an authority 
 against the general rule. 9 
 
 According to English law, an executor who takes probate Executor 
 of the will of an executor, becomes executor of the will of 
 the first testator, and cannot renounce probate of the first 
 will, and take probate of the second. 10 
 
 But this is not the law as regards persons governed by the 
 Succession Act or the Probate and Administration Act,1881. u 
 
 1 Styles v. Guy, 1 Mac. & G., 431. 
 
 2 Graham v. Hill, 3 Hill's MSS., 239, cited in Churchill v. Lady 
 Hobson, 1 P. Wms., 241 () ; White r. Barton, 18 Beav., 192. 
 
 3 Cummins v. Cummins, 8 Ir. Eq. Rep., 723 : see also Doyle v. Blake, 
 2 Sch. & Lef., 231 ; Malzy v. Edge. 2 Jur., N. S., 80. 
 
 4 Urch v. Walker, 3 My. & Cr., 702. 
 
 5 James v. Frearson, 1 Y. & C. C. C.. 375. 
 
 " Mucklow r. Fuller, Jac., 198 ; Booth v. Booth, 1 Beav., 125 ; Wil- 
 liams v. Nixon, 2 Beav., 472. 
 
 7 Conyngham v. Conyugham. 1 Ves.. 522 ; Montgomery v. Johnson, 
 11 Ir. Eq. Rep., 476 ; Doe v. Harris, 16 M. & W., 517. 
 
 9 9 Sim., 115. 
 
 9 See further as to acts of acceptance, Lewin on Trusts. Ch. XI. 
 
 10 In the Goods of Perry. 2 Curt.. 655 ; Brooke r. Haynes, L. 11 . (> Eq.. 25. 
 
 11 Act X of 1865, s. 229; Act V of 1881, s. 19; and see DeSouza c. 
 Secretary of State, 12 B. L. R., 423. 
 
 16 
 
122 ACCEPTANCE OF THE OFFICE. 
 
 LECTURE The renunciation of probate by a person named as exe- 
 v - cutor and trustee, is not in itself a disclaimer of the trust, 
 Remmcia- but it is one circumstance of evidence, and if there be no 
 ti<.n of proof of his ever having acted, the Court, after a long 
 ate ' lapse of time, as sixty years, will presume a disclaimer. 1 
 Where real and personal estate was devised and bequeath- 
 ed to B, upon trust, for sale and conversion, and upon 
 further trusts for the heir-at-law of the testator abso- 
 lutely, and B renounced probate, and died three years after- 
 wards without having disclaimed the trusts, it was held, 
 that he must be taken to have intended to disclaim them 
 when he renounced probate. 2 
 
 Where a person named as a trustee refused to act, but 
 only took the trust-deed into his possession for safe custody, 
 until some one could be found to undertake the trust, 
 it was held, that there was not enough to charge him. 3 
 Partial If the instrument of trust contains distinct and sepa- 
 
 acceptance. rate trusts, and a trustee is appointed to execute all the 
 trusts, he cannot accept some and disclaim the others, but 
 must accept all or disclaim all. 4 
 
 Although the general rule is, that if a trustee acts in 
 the trust, or intermeddles with the trust-property, he will 
 be held to have accepted the trust, yet he may show that 
 acts which apparently show an acceptance are referrible 
 to some other ground. 5 But he cannot so act with re- 
 ference to a trust-fund as to leave himself at liberty to 
 say afterwards, either that he did, or did not, act as 
 trustee. 6 Parol evidence is admissible upon the ques- 
 tion of acceptance or non-acceptance of the trust. 7 
 Recitals in If the instrument creating the trust contains recitals 
 stTteof 10 s P ec ify m g the trust-property, the trustees should, as a 
 trust. matter of precaution, ascertain that the recitals are cor- 
 rect, for otherwise they may be held liable for the pro- 
 perty mentioned. But they will not be estopped from 
 averring against, or offering evidence to controvert, a 
 recital in the deeds contrary to the fact, which has been 
 
 1 Lewin, 7th Ed.. 185, citing M'Kenna v. Eager, 9 I. R. C. L., 79 : 
 and see Earl Granville r. M'Xeile. 7 Hare, 156. 
 
 2 In re Gordon ; Roberts r. Gordon, L. R., 6 C. D., 531. 
 
 3 Evans T. John, 4 Beav.. 35. 
 
 4 Urch r. Walker. 3 My. & Cr.. 702. 
 
 6 Stacey ?. Elph. 1 M. & K., 195 ; Dove v. Everard, 1 R. & M., 231 ; 
 Lowry v. Fulton, 9 Sim., 115. 
 
 Conyngham v. Conyngham. 1 Ves., 522 ; Stacey v. Elph, 1 M. & K,, 195. 
 
 7 James v. Frearson, 1 Y. & C. C. C., 370. 
 
ACCEPTANCE OF THE OFFICE. 123 
 
 introduced into the deed by mistake of fact, and not LECTUBB 
 through their own fraud or deception. 1 In Fenwick v. 
 Greenwell 2 Lord Langdale said : " A doubt has been raised 
 as to whether Miss Cuthbertson possessed the 5,000 stock 
 at the time of the marriage. Now I cannot say, that the 
 trustees are bound l>y the recital of that fact contained in 
 the deed ; we have had so many instances of parties repre- 
 senting that they were entitled to particular property, and 
 which representation has afterwards turned out to be 
 wholly untrue, that it would be unjust and dangerous to 
 bind third parties by such representations, and I am not 
 aware that it has ever been held, that trustees are bound 
 by the representations of parties about to be married of 
 the state of their property. I do not, therefore, accede to 
 the argument that the recital alone binds the trustees." 3 
 
 A person may become a trustee in fact though not of Trustee m 
 right, and if he becomes possessed of a trust fund with fact * 
 notice of the trust, he will be bound by it. 4 The repre- 
 sentatives of a deceased trustee will incur personal liabi- 
 lity by paying away the residue of their testator's estate, 
 if afterwards a debt is discovered to which it is liable, 
 though they had no notice. 5 And if property has been 
 distributed among the legatees of a person who has com- 
 mitted a breach of trust, though in ignorance of this fact, 
 those who are damnified by the breach of trust may re- 
 cover from the legatees. 6 
 
 When executors have made an assignment on the ap- 
 pointment of a new trustee, they lose their character of 
 executors and become trustees only. 7 And an executor, 
 to whom a legacy is given upon trust, ceases to hold it 
 as executor, from the time he has appropriated it to the 
 purposes of the trust. 8 
 
 The liability of trustees for loss to the trust estate is Liability 
 the same, whether the acceptance of the trust has been 
 express, or is implied by a Court of equity from their acts. 9 
 
 1 Brooke c. Haynes, L. R.. 6 Eq., 25. z 10 Beav., 418. 
 
 3 And see Gore v. Bowser. 3 Sm. fc Gift.. 6: Story v. Gape. 2 Jur., N. S., 706. 
 
 4 Rackham v. Siddal. 1 Mac. &; G., 607 ; Hennessey r. Bray, 33 Beav., 96. 
 s Kuatchbull r. Fearnhead. 3 My. & Cr., 122. 
 
 6 March P. Russell, 3 My. & Cr.. 31. 
 
 7 Smith v . Smith. 1 Dr. & S., 384. See Act X of 1865, ss. 316326 ; Act 
 Vof 1881, BS. 135145. 
 
 8 Phillipo v. Mannings. 2 My. & Cr., 309 ; Dix v. Burford. 19 Beav., 409. 
 
 9 Lord Montford v. Lord Cadogan, 19 Ves.. 638. As to the nature of 
 the debt created in England, see Lewin, 7th Ed., 189. 
 
124 WHO MAY CREATE A TR1 
 
 LECTURE We have now to consider by whom a trust may be 
 v - created. As a general rule, it may be said that every 
 Bv wh7 m P erson wno i g competent to contract may create a trust, 
 trim may The Indian Contract Act provides that 
 
 be created. 
 
 General " Every person is competent to contract who is of the a<?e of 
 
 rule - majority according to the law to which he is subject, and who 
 
 is of sound mind, and is not disqualified from contracting by 
 
 any law to which he is subject : " l 
 
 And a person is said to be of sound mind for the purpose 
 of making a contract if, at the time when he makes it, 
 
 " He is capable of understanding it, and of forming a rational 
 judgment as to its effect upon his interests. A person who is 
 usually of unsound mind, but occasionally of sound mind, may 
 make a contract when he is of sound mind. A person who is 
 usually of sound mind, but occasionally of unsound iniud, may 
 not make a contract when he is of unsound mind." 2 
 
 The Act contains the following illustrations : 
 
 " A patient in a lunatic asylum, who is at intervals of sound 
 mind, may contract during those intervals. 
 
 " A sane man who is delirious from fever, or who is so drunk 
 that he cannot understand the terms of a contract, or form a 
 rational judgment as to its effect on his interests, cannot contract 
 whilst such delirium or drunkenness lasts." 
 
 The The Sovereign, as to his private property, may, by Letters 
 
 Sovereign. p a tent, grant it to one person upon trust for another ; 3 and 
 
 the Government of India, as it has the power of disposing 
 
 of public property, may convey such property to trustees 
 
 if it think fit. 
 
 Corpora- Corporate bodies may create trusts. They have the right 
 to alienate the property vested in them, and in consequence 
 may vest it in a trustee. 4 This right has been taken away in 
 England by the Statute of 5 and 6 Wm. IV, c. 76 ; but as no 
 similar Statute exists in this country, I apprehend that the 
 law as it stood before the Statute would be enforced here. 
 Prizes of Prizes of war vest in the sovereign, and are commonly, by 
 war - the Royal Warrant, granted to trustees, upon trust to dis- 
 tribute in a prescribed mode among the captors ; but an 
 instrument of this kind is held not to vest an interest in the 
 cestuis que trustent, which they can enforce in equity, but 
 
 1 Act IX of 1872. s. 11. - Ibid, s. V2. 3 Lewin. 7th Ed.. 21. 
 
 4 Mayor of Colchester r. Lowten, 1 V. & B., 2-6 : Evan r. The Corpor- 
 ation of Avon. 29 Beav.. 144. 
 
MARRIED WOMEN. 125 
 
 it may be at any time revoked or varied at the pleasure LECTUBE 
 of the sovereign before the general distribution. 1 v - 
 
 An infant, as we have seen, cannot contract, and there- i n f^^ 
 fore cannot create a trust by any declaration during minor- 
 ity, nor can he create a trust by will. 2 
 
 Married women subject to the Indian Succession Act (X Married 
 of 1865) may create trusts. Section 4 of the Act provides women - 
 that no person shall by marriage acquire any interest in 
 the property of the person whom he or she marries, nor 
 become incapable of doing any act in respect of his or her 
 o\vu property which he or she could have done if un- 
 married. This section, so far as regards property, abolishes, 
 by implication, the doctrine of unity of persons between 
 husband and wife. 3 So far as property is concerned, 
 therefore, the wife has as much control over it as if she 
 were unmarried. This section does not apply to Hindus, 
 Mahomedans, Buddhists, Sikhs, or Jains. 4 By the Married 
 Women's Property Act (III of 1874), s. 4 
 
 " The wages and earnings of any married woman acquired or 
 gained by her, after the passing of the Act, in any employment, 
 occupation, or trade carried on by her, and not by her husband, 
 and also any money or other property so acquired by her through 
 the exercise of any literary, artistic, or scientific skill, and all savings 
 from, and investments of, such wages, earnings, and property, shall 
 be deemed to be her separate property, and her receipts alone 
 shall be good discharges for such wages, earnings, and property." 
 
 And she may, therefore, create a trust in respect of such 
 property. This Act does not apply to Hindus, Mahome- 
 dans, Buddhists, Sikhs, or Jains. 5 
 
 With regard to Hindus, a married woman may create a Stridhan. 
 trust of her sh^idhan, or any other property which is 
 absolutely at her own disposal, as she can devise such pro- 
 perty. 6 But she cannot devise property inherited from 
 males, since her interest in it ceases at her death, 7 and 
 therefore she cannot create a trust of such property to 
 continue afcer her death, though she may create a trust of 
 her life-interest. 
 
 1 Alexander r. The Duke of Wellington. 2 R. & M., 35 ; Kinlock v. 
 Secretary of State for India in Council, L. R., 15. C D., 1. As to the 
 execution of the trust by the agency of persons deputed by the prin- 
 cipals, see Tarragona, 2 Dod's Adm. Rep.. 487. 
 
 - Act X of 1865, s. 46 ; Cossinath Byeack r. Hurrosoondery. 2 M. 
 Dig , 198 (). 3 Proby r. Proby, I. L. R., 5 Calc., 357. 
 
 4 Act III of 1874. s. 2. s Section 2. 
 
 6 See Mayne's Hindu Law and Usage, 2nd Ed., 342. ' Ibid. 
 
126 
 
 ALIENS. 
 
 V. 
 
 Alien. 
 
 Persons 
 convicted 
 of certain 
 offences. 
 
 LECTURE According to English law, an alien might always have 
 acquired real estate, whether freeholds or chattels, by pur- 
 chases, though he could not take it by operation of law, 
 as by descent or jure mariti ; and if he purchased it, he 
 might have held it until office found, but could not give 
 an alienee a better title than he had himself. An alien, 
 therefore, could only create a trust of real estate until the 
 Crown stepped in. 
 
 As to personal estate, an alien friend might, although an 
 alien enemy could not be the lawful owner of chattels, 
 personal, and might exercise the ordinary rights of pro- 
 prietorship over them, and consequently create a trust. 
 
 The English law relating to aliens has not been intro- 
 duced into India, and aliens here may acquire property 
 freely, and deal with it as if they were British subjects. 1 
 
 In some cases the property of persons convicted of cer- 
 tain offences is liable to forfeiture. In every such case 
 the offender is incapable of acquiring any property, except 
 for the benefit of Government, until he has undergone the 
 punishment awarded, or the punishment to which it shall 
 have been commuted, or until he shall have been par- 
 doned. 2 Whenever any person is convicted of an offence 
 punishable with death, the Court may adjudge that all his 
 property, moveable and immov cable, shall be forfeited to 
 Government ; and whenever any person is convicted of 
 any offence for which he shall be transported or sentenced 
 to imprisonment for a term of seven years or upwards, the 
 Court may adjudge that the rents and profits of all his 
 moveable and iminoveable estate during the period of his 
 transportation or imprisonment shall be forfeited to Go- 
 vernment, subject to such provision for his family and 
 dependants as the Government may think fit to allow 
 during such period. 3 
 
 In certain cases the forfeiture of propertj^ necessarily 
 follows conviction. Any person who wages war against the 
 Queen, or attempts to wage such war, or abets the waging 
 of such war, or collects men, arms, or ammunition, or 
 otherwise prepares to wage war with the intention of 
 either waging, or being prepared to wage, war against the 
 Queen, forfeits all his property in addition to any other 
 punishment to which he may be sentenced. 
 
 1 See Mayor of Lyons v. East India Co., 1 Moo. I. A.. 175; Sarkies v. 
 S. M. Prosonnomoyee Dossee, I. L. R., 6 Calc., 794. 
 
 2 Act XLV of 1860, s. 6-'. 3 Ibid. 
 
WHO MAY BE CESTUI QUE TRUST. 127 
 
 There is another class of offences where the forfeiture LECTURE 
 of specific property may form part of the punishment 
 awarded. When offenders commit, or prepare to commit, 
 depredation on the territories of any power at peace with 
 the Queen, or receive property with the knowledge that it 
 has been taken in waging war, or committing depredations 
 on a power at peace with the Queen; 1 or if u public 
 officer buys property which he is forbidden to buy, the 
 specific property may be forfeited. 2 
 
 No trust can, therefore, be created of property which 
 may be forfeited if the Government choses to exercise its 
 rights ; and of course, no trust can be created where for- 
 feiture necessarily follows the conviction. 
 
 Although a sanad granted by the Government of India, Grantee 
 subsequent to the proclamation of March, 1858, of an Ullder 
 estate in Oudh, confers an absolute legal title on the sa 
 grantee, such grantee may, nevertheless, by an express 
 declaration of trust, or by an agreement to hold in trust, 
 constitute himself a trustee of the estate for a third party. 3 
 
 A trust may be created in favour of any person, or body Who may 
 of persons, so long as the purpose is lawful. be a <* 
 
 The Government may be a cestui que trust* 
 
 In England a trust of lands cannot be limited to a cor- 7^ Q OV _ 
 poration without a license from the Crown. 5 But as the emmeat. 
 Mortmain Acis do not apply to India, 6 apparently a cor- [jons?" 
 poration in this countiy may be a cestui que tnist. 
 
 An alien also may be a cestui que trust. Aliens. 
 
 Any person may be a trustee, even an infant, or person \^ho mar 
 of unsound mind, if the trust is purely passive, and does be a trustee, 
 not require the exercise of prudence and discretion. For u^jeTdis- 
 instance, a discretionary trust for sale cannot be exercised ability, 
 by an infant, for an infant is not a person competent to 
 contract. 7 In King v. Bellord? a testator devised estates 
 upon trusts, requiring discretion as to the expediency, as to 
 the time, aud as to the manner of a sale, to three persons, 
 
 1 Act XLV of I860, ss. 126, 127. 2 Ibid, a. 169. 
 
 3 Thakur Shere Bahadur Singh r. Thakurain Dariao Kuar, I. L. R., 
 3 Calc., 645. 
 
 4 See as to trusts in favour of the Sovereign Lewin, 7th Ed., 40. 
 
 5 Lewin, 7th Ed., 41. 
 
 * Mayor of Lyons r. The East India Co., 1 Moo. I. A., 175 ; Sarkies 
 v. Prosonnomoyee Dossee, I. L. R., 6 Calc., 794. 
 7 Act IX of 1872, s. 11. * 1 H. and M., 343. 
 
128 INFANTS. 
 
 LECTUBE one of whom was an infant, and it was held, that a contract 
 v - of sale entered into by these three trustees was not a 
 valid contract which could be specifically performed. 
 " There can be no doubt upon the authorities from the 
 earliest times," said Wood, V. C., " that if a man by his will 
 gives an infant a simple power of sale without an interest, 
 the infant may exercise it. All the decisions on the subject 
 are referred to by Lord St. Leonards in his work on 
 ' Powers,' and I need not discuss them minutely. They all 
 turn on the execution of powers, and there is not a single 
 authority upon the question whether an infant can sell an 
 estate devised to him upon trust for sale. There is an 
 opinion of Mr. Preston, mentioned without disapproval by 
 Lord St. Leonards, that an infant can exercise a power, 
 even though it be coupled with an interest ; but that is 
 very different from selling an estate vested in an infant 
 by a devise in fee. 
 
 "It is to be observed that all the cases relied on 
 with reference to powers, have gone upon the principle 
 that the infant is merely the instrument by whose 
 hands the testator or donor acts. The donor, it is said, 
 may use any hand, however weak, to carry out his inten- 
 tions. This principle fails altogether to reach the case of 
 a devise in trust to an infant. It is not in the power of 
 the author of a trust to confer upon an infant a capacity 
 in himself which the law does not give him, although he 
 may make the infant his hand, his agent, to execute his 
 purpose. He cannot give an estate to an infant, and say 
 that he may sell it when the law says that he cannot do so." 
 
 It is not advisable, however, to appoint an infant as 
 trustee. The only acts which he can perform are such as 
 are purely ministerial, and he cannot be made to account 
 for money received by him as trustee during his minority. 1 
 Infants, however, have no privilege to cheat men ; 2 and 
 a Court of Equity has jurisdiction to make an infant 
 answerable, on his attaining majority, for a fraud com- 
 mitted by him during his minority, though it is not easy to 
 determine in what cases the Court will thus exert itself. 3 
 
 From the great inconveniences attending the appointment 
 of an infant as trustee, there arises a strong presumption, 
 
 1 Hindmarsh r. Southgate, 3 Russ., 327. 
 - Evroy v. Nicholas. 2 Eq. Cas. Abr., 489. 
 
 3 Stikeman v. Dawson, 1 DeG. and Sm.. 90 ; Wright v. Snowe, 
 2 DeG. and Sm., 321 : and see the cases collected, Lewin, 7th Ed., 36. 
 
ALIENS. 129 
 
 wherever property is given to an infant, that he is intended LECTUBE 
 to take it not as trustee but beneficially. 1 v - 
 
 An alien may be a trustee of either moveable or im- Aii^iilT 
 moveable property. In England, before the Statute 33 
 Viet., c. 14, an alien could not effectually be a trustee in 
 respect of freeholds, or chattels, real, for the policy of the 
 law would not allow an alien to sue, or be sued, to the 
 prejudice of the Crown touching lands in any Court of 
 law or equity ; and on inquisition found, the legal estate 
 in the property vested by forfeiture in the Crown. 2 But 
 this did not apply to personal property. 3 In this country, 
 as we have seen, 4 the English law as to aliens is not appli- 
 cable : and moreover, no person is by reason of his descent 
 or place of birth exempted in any civil proceeding from 
 the jurisdiction of any of the Courts, 5 and alien enemies 
 residing in British India with the permission of the 
 Governor-General in Council and alien friends may sue in 
 the Courts of British India, as if they were subjects of 
 Her Majesty. No alien enemy residing in British India, 
 without such permission, or residing in a foreign country, 
 may sue in any of such Courts. 6 
 
 In England, the Sovereign may sustain the character The 
 of a trustee, so far as regards the capacity to take the Sovere 'g n - 
 estate and to execute the trusts ; but great doubts have 
 been entertained whether the subject can, by any legal 
 process there, enforce the performance of the trust. 7 
 
 And it has recently been expressly decided that the Go- Not the 
 vernment of this country cannot be a trustee. In Kinlock v. J^"/ 
 The Secretary of State for India,* booty of war had India, 
 been granted by Her Majesty by Royal Warrant to the 
 Secretary of State for India in Council, ' in trust, ' to 
 distribute amongst the persons found entitled to share it 
 by the decree of the Judge of the Court of Admiralty, to 
 whom the matter had been referred by the Sovereign for 
 that purpose, with a direction that doubts should be finally 
 determined by the Secretary of State, unless Her Majesty 
 should otherwise order. An action was brought against the 
 Secretary of State by a person claiming to be entitled to 
 share in the fund, and praying for an account. It was held, 
 
 1 Lewin, 7th Ed., 36. 2 Fish v. Klein, 2 Mer., 431. 
 
 3 Meinertzhagen r. Davis, 1 Coll., 335. 
 
 4 Ante, p. 126. 5 Act X of 1877, s. 10. 
 
 lb., 430. ; Sec Lewiii, 7th Ed.. L".'. " L. R., 15 C. D.. 1. 
 
 17 
 
130 CORPORATIONS. 
 
 LECTUEE that the warrant did not operate as a transfer of property 
 v - or create a trust, and that the defendant, being merely the 
 agent of the Sovereign to distribute the fund, was not liable 
 to account to any of the parties entitled. James, L. J., said : 
 " The Government of India is not, as it appears to me, 
 capable of being a trustee ; nor is the Secretary of State 
 for India in Council (the name by which the Government 
 can be sued) a person capable of being a trustee any more 
 than the Attorney-General in this country would be, or any 
 other person, who sued in certain cases for, or on behalf of, 
 the Crown." 
 
 Corpora- According to the technical rules upon which the 
 doctrine of uses proceeded, a corporation could not have 
 been seised to a use, for, it was said, it had no soul, and 
 therefore no confidence could be reposed in it. 1 But 
 on principles of ordinary and natural justice, a body 
 corporate has been held to be compellable to execute 
 a trust, thus abolishing the rule that there must be a 
 person in whom the confidence is placed. 2 " Priind facie" 
 said Lord Romilly, M. R, 3 " an ordinary Municipal Corpora- 
 tion has full power to dispose of all its property like any 
 private individual, and the burden of proof lies on the 
 person alleging the contrary to establish a trust. The trust 
 may be of two characters ; it may be of a general charac- 
 ter, or of a private and individual character. A person 
 might leave a sum of money to a corporation, in trust, to 
 support the children of B, and pay them the principal 
 at twenty-one. That would be a private and particular 
 trust, which the children could enforce against the corpora- 
 tion, if the corporation applied the property for its own 
 benefit. On the other hand, a person might leave money 
 to a corporation, in trust for the benefit of the inhabitants 
 of a particular place, or for paving or lighting the town. 
 That would be a public trust for the benefit of all the 
 inhabitants, and the proper form of suit, in the event of 
 any breach of trust, would be by an information by the 
 Attorney-General, 4 at the instance of all or some of the 
 persons interested in the matter. If there was a parti- 
 cular trust in favor of particular persons, and they were 
 
 1 Lewin, 7th Edn., 30. 
 
 2 Green v. Rutherford, 1 Ves., 468 ; Attorney-General r. Whorewood, 
 ib., 536 ; Attorney-General v. Caius College, 2 Keen, 165. 
 
 3 Evan v. The Corporation of Avon, 29 Beav., 149. 
 
 4 As to the procedure in this country, see Act X of 1877, s. 539. 
 
MARRIED WOMEN. 131 
 
 too numerous for all to be made parties, one or two might LECTURE 
 then sue on behalf of themselves and the other cestuis que v - 
 trustent for the performance of the trust." 
 
 There is a statutory exception to the general rule, that a Presidency 
 corporation may be a trustee, in the case of the Presidency banka - 
 Banks, that is to say, the Banks of Bengal, Madras, and 
 Bombay. The Presidency Banks' Act (XI of 1870) provides 
 that, except for the purpose of excluding the provisions of 
 s. 17 (relating to the forfeiture of stocks and shares), the 
 banks shall not be bound or affected by notice of any trust 
 to which any stock or share may be subject in the hands of 
 the proprietor or holder. And the law in England is similar. 
 
 A married woman may be a trustee. In England it is not Married 
 advisable to appoint a married woman as trustee, owing, women, 
 among other reasons, to the doctrine of unity of persons 
 between husband and wife. 1 But this does not apply to 
 pei-sons subject to the Indian Succession Act (X of 1865), 2 
 nor is it known to Hindu or Mahomedan law. 
 
 According to English law, it is a legal presumption (pos- 
 sibly it may be called a legal fiction) that a married woman 
 is subject to the influence of her husband, and therefore 
 she cannot be allowed to execute the trust without his 
 concurrence. 3 
 
 An insolvent may be a trustee. The property of an insol- insolvent, 
 vent, and such property as he may acquire before he obtains 
 his discharge, vests in the Official Assignee, 4 but not estates 
 vested in him as trustee. These are unaffected by the insol- 
 vency, 5 and although the trust-property may be changed, it 
 will not vest if it can be traced, as where it exists in the 
 shape of bills or notes, 6 or any other substituted form, 7 for 
 the assignees of a defaulting trustee have no better right 
 than the trustee. 8 But where the trust-property had become 
 mixed with the bankrupt's general property, and could not 
 be distinguished, it was held that the assignees would take 
 it, and that the cestui que ti'ust must prove. 9 
 
 1 Smith v. Smith. 21 Beav., 385 ; Drummond v. Tracy, 1 Johns., 608 ; 
 Lake v. De Lambert, 4 Ves., 593 ; Re Kaye, L. R., 1 Ch., 387. 
 
 2 See ante, p. 125. 
 
 3 A very v. Griffin, L. R.. 6 Eq.. 606 ; Lloyd v. Pughe, L. R., 8 Ch., 88 ; 
 Wain ford v. Heyl, L. R., 20 Eq., 321. See further, Lewin, 7th Ed., 32. 
 
 * 11 and 12 Viet., C. 21, s. 1. 
 
 * See Houghton v. Krenig, 18 C. B., 235 ; Winch v. Keeley, 1 T. R., 619. 
 
 * Exparte Dumas, 2 Ves., 582. 
 
 7 Frith v. Cartland, 2 H. and M., 417. 
 
 ' Ibid. Exparte Dumas, 1 Atk., 234. 
 
132 DISCLAIMER. 
 
 LECTURE The possession of a trustee is not a possession with the 
 v - consent of the true owner under the reputed ownership 
 clause, s. 23 of the Insolvent Act. 1 
 
 Cestuis que Cestuis que trustent are not, as such, incapacitated from 
 being trustees for themselves and others, but, as a general 
 rule, they are not altogether fit persons for the office, in 
 consequence of the probability of a conflict between their 
 interest and their duty. 2 Where the trusts are onerous, 
 and other persons cannot be found to undertake them, the 
 Court will appoint a cestui que trust to be a trustee. 3 
 
 Relatives. It is not advisable to appoint relatives to be trustees. 
 The worst breaches of trust are committed by relatives, 
 who are unable to resist the importunities of their cestuis 
 que trustent when they are nearly related to them. 4 
 
 Number of An adequate number of trustees should be appointed. 
 
 trustees. >jhere are strong reasons against allowing trust property 
 to remain in the hands of one trustee. He has the absolute 
 control over it, and if tempted to commit a breach of trust, 
 he can do so with less fear of detection than if there are 
 co-trustees. When one of several trustees dies, steps should 
 be at once taken to provide a successor. The safe rule, 
 where money is concerned, is to appoint at least three 
 trustees and to keep the number full. 5 
 
 Disclaimer. N O one j s bound to accept a trust, and therefore any 
 person who has been appointed a trustee may, if he has 
 not acted in the office, disclaim. 6 If, however, he has 
 exercised any acts of ownership, he cannot disclaim. 7 
 " Though," said Lord Redesdale, 8 " a person may have 
 agreed in the lifetime of a testator to accept the executor- 
 ship,, he is still at liberty to recede except so far as his 
 feelings may forbid it ; and it will be proper for him to do 
 so, if he finds that his charge as executor is different from 
 what he has conceived it to be when he entered into the 
 engagement." 
 
 According to English law, the heir of a trustee can- 
 not disclaim, the reason being that the legal estate, if 
 
 1 11 and 12 Viet., c. 21. And see Ex parte Martin. 19 Ves., 491. 
 
 2 Forster v. Abraham, L. R., 17 Eq., 351 ; Passingham v. Sherborn, 
 9 Beav., 424 ; Barnes v. Addy, L. R., 9 Ch., 244. 
 
 3 Ex parte Glutton, 9 Jur., 988. 
 
 4 Wilding v. Bolder. 21 Beav., 222. 5 See Lewin, 7th Edn., 39. 
 
 6 Robinson v. Pett, 3 P. Wms., 251 ; Moyle v. Moyle, 2 R. and M., 710 ; 
 Lowry r. Fulton, 9 Sim., 123. 
 
 7 Bence v. Gilpin, L. R., 3 Ex., 76 : and see ante, p. 120. 
 Doyle v. Blake, 2 Sun', and Lef., 239. 
 
DISCLAIMER. 133 
 
 the disclaimer were allowed, would vest in the Crown. 1 LECTUEE 
 I do not know of any authority on this point as regards v - 
 estates in India. But as it has been decided that the 
 English rules of succession to immoveable property apply 
 to the descent of estates in land held by European British 
 subjects, 2 probably it would be held that the heirs of a 
 European British subject could not disclaim. As regards 
 other British subjects, the distinction between legaf and 
 equitable estates does not exist, and the rules of inheritance 
 are different, and therefore it would seem that the heir of 
 such last named subject may disclaim. 
 
 The disclaimer should be made without delay, as other- Delay, 
 wise a question may arise as to whether there has not been 
 an acceptance by acquiescence. This question is of course 
 in every case one of fact to be decided from the circum- 
 stances of the case. 3 
 
 The disclaimer may be by parol, but it is more prudent HOW made, 
 that it should be by writing, as there is less fear of ambi- 
 guity. 4 The instrument should be a disclaimer, and not a 
 conveyance, though, if the intention to disclaim is apparent 
 on the conveyance, that will be sufficient. 5 A trustee may 
 disclaim in Court 6 or by his written statement. 7 And if 
 notwithstanding he is continued as a party to the hearing, 
 he will be entitled to his costs as between party and party. 8 
 And there may be conduct which amounts to a clear dis- 
 claimer. 9 
 
 A trustee or executor to whom a bequest is given, may Gift to 
 take the gift and disclaim the office, 10 unless acting in the ^ 
 office is a condition attached to the gift. 11 
 
 1 Lewin. 7th Edn., 180. 
 
 - See Gardiner v. Fell, 1 Moo. I. A., 299 ; Freeman v. Fairlie, ib., 305 ; 
 Mayor of Lyons v. The East India Co., ib., 175 ; Sarkies v. S. M. Pro- 
 sonnomoyee Dossee, I. L. R., 6 Calc., 794. 
 
 3 See Doe r. Harris, 16 M. &. W.. 517 ; Noble r. Meymott, 14 Beav., 
 471 ; Paddon v. Richardson, 7 D. M. G., 563 ; James v. Frearson, 1 Y. 
 and C. C. C., 370. 
 
 4 See Townson v. Tickell, 3 B. and Aid., 31 ; 1 Stacey v. Elph, 1 M. and 
 K, 199. 
 
 s Nichojson r. Wordsworth, 2 Swanst., 372 ; Urch r. Walker, 3 My. and 
 Cr., 702. 
 
 In re Ellison's Trust, 2 Jur. (N. S.), 62 ; Foster c. Dawber, 1 Dr. 
 and Sm., 172. 
 
 I Norway r. Norway, 2 M. and K, 278. Bray v. West, 9 Sim., 429. 
 
 9 Stacey v. Elph, 1 M. and K., 199. 
 
 10 Talbot r. Radnor. 3 M. and K., 254 ; Pollexfen v. Moore, 3 Atk., 272 ; 
 Andrew -c. Trinity Hall, 9 Yes., 525. 
 
 II Warren r. Rudall. 1 J. and H., 1 ; Slaney r. Watney, L. R., 2 Eq., 
 418 ; Lewis r. Matthews, L. R., 8 Eq., 277. 
 
134 DISCLAIMER. 
 
 LECTURE A trustee or executor who has disclaimed may afterwards 
 v - act as agent for the other trustees or executors. He should, 
 however, be careful to disclaim clearly, as otherwise he may 
 be considered to have accepted by acquiescence. 1 
 
 If one of two co-trustees disclaims, the trust-property is 
 
 vested in the other, and he becomes sole trustee ab initio? 
 
 A person named as trustee without his sanction, and 
 
 called on to disclaim, is authorized in taking the opinion of 
 
 counsel as to his obligation to execute a disclaimer. 3 
 
 1 See cases referred to. ante, p. 120. 
 
 2 Peppercorn v. Wayman, 5 DeG. and Sm., 230. 
 
 3 See Re Tryon, 7 Beav., 496. 
 
LECTURE VI. 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 Duties and liabilities of trustee Trustee to acquaint himself of state of pro- 
 pertyTrustee bound to protect trust-property Getting in trust-estate 
 Estate outstanding on personal security When securities to be realized 
 Care required from trustee Loss occasioned by agent . By act of co- 
 trustee Trust-fund consisting of money Control of trust- fund Failure 
 of banker Trustee to prevent waste Permissive waste Cestui que 
 trust may not benefit by waste Tenants-for-life without impeachment of 
 waste When Court ir.ay interfere Principle on which Court acts 
 Waste by Hindu widow Suit for possession Receiver Alienation by 
 widow Proper parties to sue Collusion by immediate reversioner 
 Conversion of perishable property Howe v. Earl of Dartmouth 
 Pickering v. Pickering Exceptions from rule Trustee to be impartial 
 Discretion of trustees not interfered with Selecting objects of the trust 
 Modes of investment Exercise of power by will Trustee cannot set 
 up title to trust-property Claim by third person Delivery up of 
 moveable property Failure of cestui que trust Trustee to keep accounts 
 
 Vouchers Costs Good faith Managing member of Hindu family 
 
 Duties of trustee as to investment Personal security Shares in 
 companies Where personal security allowed One cestui que trust 
 not to be benefited at expense of others Consent of cestuis que truslent 
 to change Continuing investment Varying securities Investment or 
 mortgage Trustees may not lend to themselves Paying over mortgage- 
 money Consent of Court to investment Trustees' and Mortgagees' 
 Powers Acts Official Trustee's Act of 1864, s. 14 Remedy in case of 
 non-investment Remedy in case of wrongful investment Insolvency of 
 trustee Duties of trustees for sale or mortgage Trustee bound to sell 
 to best advantage Must attend to interest of all parties Valuation 
 Absolute trust for sale will not authorize mortgage Trust to mortgage 
 will not authorize sale Trust for sale survives Trustees bound to make 
 good title Counsel's opinion Payment of purchase-money Duties of 
 trustees for purchase. 
 
 WE have now to consider what are the duties and liabili- Duties and 
 ties incurred by a trustee after he has accepted. On this 
 
 .y _ * _ i 
 
 point Mr. Lewin says : " As soon as a trustee has accepted 
 the office, he must bear in mind that he is not to sleep 
 upon it, but is required to take an active part in the 
 execution of the trust. The law knows no such person as 
 & passive trustee. If, therefore, an unprofessional person 
 
 1 7th Edn., 190. 
 
136 ENQUIRY IXTO STATE OF TRUST-PROPERTY. 
 
 LECTURE be associated in the trust with a professional one, he must 
 VI- not argue, as is often done, that because the solicitor is 
 better acquainted with business and with legal technicali- 
 ties, the administration of the trust may be safely confided 
 to him, and that the other need not interfere except by 
 joining in what are called formal acts. If he sign a power- 
 of-attorney for sale of stock, or execute a deed of recon- 
 veyance on repayment of a mortgage sum, he is as answer- 
 able for the money as if he were himself the solicitor, and 
 had the sole management of the transaction." 
 
 And Mr. Spsnce says i 1 " Every person who accepts a 
 trust is bound to execute it 2 with fidelity, and with 
 reasonable diligence ; it is no excuse to say that he had no 
 benefit from it, but that it was merely honorary : the 
 Court of Chancery looks upon all trusts as honorary, and 
 as a burthen upon the honour and conscience of the party 
 intrusted; and for the execution of which he is even 
 precluded from receiving or making any benefit or advant- 
 age whatsoever." 
 
 Trustee to A trustee is bound to acquaint himself with the nature 
 acquaint an( j particular circumstances of the trust-property. But 
 state of a new trustee is not liable for any breach of trust corn- 
 property. m itted by his predecessor. He is entitled to assume that 
 everything before his coming in had been duly performed, 
 and he cannot be charged with wilful default, because he 
 did not look back and inquire whether the former trustees 
 had performed their duties up to that time. 3 
 
 If, however, he does not enquire into the state of the 
 trust fund, and does not take steps to get in any part 
 which may be outstanding on improper security, he will 
 be liable for the consequences of his neglect, like any 
 executor who knows that a debt is due to his testator's 
 estate and omits to get it in. 4 Where a marriage settlement 
 contained a covenant on the part of the husband to settle 
 after acquired property, it was held that a new trustee 
 was not liable for not having inquired as to whether any 
 such settlement had been made, there being nothing to 
 lead to a suspicion that any default had been made by 
 
 1 2 Sp. Eq. Jur., 918. 
 
 2 Charitable Corporation v. Sutton, 2 Atk., 406. 
 
 3 Ex parte Graves, 25 L. J. Bkcy.. 53. 
 
 4 Taylor v. Millington, 4 Jur. (N. S.). 204; James v. Frearson, 1 Y. and 
 C. C. C., 370 ; Ex parte Graves, 25 L. J. Bkcy., 53 ; Yode v. Cloud, L. R., 
 18 Eq., 634. 
 
PROTECTION OF TRUST-PROPERTY. 137 
 
 the old trustees or the covenantor. 1 A trustee of chattels, LECTUBB 
 personal, settled for the separate use of a married woman VI - 
 should take care that an inventory is made, otherwise he 
 may be deprived of his costs. 2 
 
 The office of a trustee is to a certain extent onerous. We Trustee 
 have seen 3 that the law does not recognize a passive trustee, ^"^t* 
 but that he must take an active part in the execution of trust-pro- 
 the trust. It is one of his primary duties to maintain P ert y- 
 and defend all such actions as are requisite for the assertion 
 or protection of the title to the trust-property. 4 And as a 
 general rule, trustees are bound to press on all the reme- 
 dies for the recovery of debts due to the trust-estate ; and 
 if any securities seem proper to be continued, it seems 
 the only safe course for trustees to adopt, is to submit the 
 point to the judgment of the Court, not to decide upon 
 it themselves, unless a discretionary power to that extent 
 be expressly or by clear implication given to them : else 
 they will be answerable for any loss that may ensue in 
 consequence of their misplaced confidence, however good 
 may have been their intention. 6 
 
 Power has been given to trustees in India to sue for 
 the possession of specific moveable property to the bene- 
 ficial interest in which the person for whom they are 
 trustees is entitled. Possession is to be recovered in the 
 manner prescribed by the Code of Civil Procedure. 6 
 
 Trustees are bound to place the trust-property in safe P^jj^ 
 securities, and will be liable for loss if they delay in esta tei 
 getting it in and investing it. 7 For instance, if debts are 
 outstanding, it is the duty of the trustees to get them in as 
 soon as possible ; and if in consequence of their negligence 
 the debts are lost by the debtor's insolvency, or if the right to 
 sue is barred by limitation, they will be personally liable. 8 
 
 So, if a man covenants to settle a certain sum within 
 a given period, and the trustees execute the trust-deed 
 
 1 Graves v. Strahan, 8 D. M. G., 291. 
 
 2 England i: Downs, 6 Bear., 279. 
 
 3 Ante, p. 134. 
 
 4 Goode v. Burton, 11 Jur., 851. 
 
 5 Gaskell r. Harman, 11 Ves.. 489 ; Lowson v. Copeland, 2 Bro. C. C., 
 157 ; Tebbs v. Carpenter, 1 Madd., 298. 
 
 6 See Act I of 1877, s. 10. 
 
 7 See DeSouza v. DeSouza. 12 Bom., 190. 
 
 8 Caffrey v. Darby, 6 Ves., 488 ; Jones r. Higgins. L. R., 2 Eq., 538 ; 
 Ex parte Ogle, L. R., 8 Ch., 711; Rowley r. Adams, 2 H. L. C., 725 ; 
 Stone v. Stone, L. R., 5 Ch., 74. 
 
 18 
 
138 
 
 PERSONAL SECURITY. 
 
 Estate 
 outstand- 
 ing on 
 personal 
 security. 
 
 LECTUBE and sign a receipt for the money, they will be liable. 1 
 VI - There is no objection to trustees receiving money before 
 the date on which it is payable, if the debtor chooses to 
 pay it. 2 
 
 Trustees may fairly allow a debt to be paid by instal- 
 ments, but they will not be justified in granting any 
 great indulgence. 3 In the exercise of a fair discretion they 
 need not commence legal proceedings unnecessarily, but 
 they should exert themselves to get in the debt, and, if 
 necessary, commence compulsory proceedings to obtain it. 4 
 
 When trustees bond fide exert themselves to discharge 
 their duty, and merely commit an error in judgment, 
 unless there is a plain violation of trust, they will not be 
 visited severely. The fair exercise of their judgment is a 
 protection to them, although the consequences may be 
 bad. 5 
 
 If part of a testator's estate is outstanding on personal 
 security, it is the duty of the executors to take steps to 
 get it in, 6 even though the debtor is a co-executor. 7 
 
 The fact that the testator approved of the security and 
 had continued it for many years, and that it was good at 
 the time of his death, will not relieve the executors from 
 responsibility in case of loss. 8 Personal security changes 
 from day to day by reason of the personal responsibility 
 of the party giving the security, and as a testator's means 
 of judging of the value of that responsibility are put an 
 end to by his death, the executor who has omitted to get 
 it in within a reasonable time, becomes himself the secu- 
 rity. 9 An application to the debtor must be followed up 
 by legal proceedings if not attended to ; a mere demand 
 through an attorney will not discharge the executor. 10 
 
 But executors will not be liable for not taking legal pro- 
 ceedings if it appears that the proceedings would have 
 
 1 Lewin, 7th Ed., 266. 
 
 2 Mills v. Osborne, 7 Sim., 30. 
 
 3 Caffrey v. Darby, 6 Ves., 495. 
 
 4 Caney v. Bond. 6 Beav., 486. 
 s Garrett v. Noble, 6 Sim., 516. 
 
 6 Lowson v. Copeland, 2 Bro. C. C., 156 ; Bailey r. Gould, 4 Y. and C., 
 Ex., 221; Attorney-General u. Higham, 2 Y. and C. C. C., 634. 
 
 7 Styles v. Guy, 1 Mac. and ^ ., 422 ; Egbert v. Butter, 21 Beav., 560 ; 
 Candler v. Tillett, 22 Beav.. 257. 
 
 8 Powell v. Evans, 5 Ves., 839 ; Tebbs v. Carpenter, 1 Madd., 290 ; 
 Clough v. Bond. 3 M. & Cr.. 496 ; Bullock v. Wheatley. 1 Coll., 130. 
 
 Bailey v. Gould, 4 Y. & C., Ex., 226, per Aldersou, B. 
 10 Lowson v. Copeland, 2 Bro. C. C., 156. 
 
REALIZATION OF SECURITIES. 139 
 
 been useless. 1 And if it appears that though the whole LECTURE 
 debt could not have been recovered, a part might, they will VL 
 only be liable for what might have been recovered. 2 
 
 A direction in the will that the executors shall call in 
 securities not approved by them, will not discharge them 
 from liability for loss arising from the failure of personal 
 security. Such a direction must be considered as referable 
 to securities upon which a testator's property might, from, 
 their nature, be invested, and not as authorizing a kind of 
 investment which a Court of Equity will not sanction. 3 
 
 And if a settlement contain a clause that the trustees 
 are to get in the money, " whenever they shall think fit 
 and expedient so to do," they will be liable if they refrain 
 from enforcing payment out of tenderness to the tenant- 
 for-life, without due regard to the interests of all the cestuis 
 que trueteitt* 
 
 If the testator's property is outstanding on securities when 
 which may reasonably be considered as safe, the executors securities 
 are not bound to call them in, until the creditors call for li"' 
 payment of their debts ; or unless they have reason to 
 suspect the solvency of the debtor. " What," said Lord 
 Thurlow, 5 " is the executor to do. Is he to call in the secu- 
 rities before creditors require payment of their debts ? 
 Must the money lie dead without interest, or must he put it 
 out on fresh securities ? On the original securities he had the 
 testator's confidence for his sanction ; but on any new secu- 
 rities it will be at his own peril." 6 The trustees, however, 
 should enquire whether the securities are safe, and call them 
 in if they are not. 7 
 
 In all suits concerning property vested in a trustee, exe- 
 cutor, or administrator, when the connection is between the 
 persons beneficially interested in such property and a 
 third person, the trustee, executor, or administrator repre- 
 sents the persons so interested, and it is not ordinarily neces- 
 sary to make them parties to the suit; but the Court may, 
 
 1 Clack v. Holland. 19 Beav., 262 ; Hobday v. Peters (No. 2), 603 ; 
 Walker v. Symonds. 3 Swanst.. 71. 
 
 2 Maitland v. Buteman, 16 Sim., 233 (). 
 
 * Styles v. Guy, 1 Mac. & G., 428, per Lord Cottenham. 
 
 4 Lewin, 7th Edn.. 268. citing Luther v. Bianconi, 10 Ir. Ch., 194. 
 s Orr r. Newton, 2 Cox, 276. 
 
 * And see Howe v. The Earl of Dartmouth, 7 Yes., 150. 
 
 7 Ames r. Parkinson. 7 Beav., 384 ; Harrison v. Thexton 4 Jur., N. S., 
 550. As to trustees' receipts, see Lewin, 7th Ed., 268. 
 
140 CARE REQUIRED FROM TRUSTEE. 
 
 LECTURE if it thinks fit, order them, or any of them, to be made 
 
 parties. 1 
 
 Care re- A trustee is bound to take the same care of the trust- 
 quired from property as he would of his own, but not more care; 2 and 
 tee ' if he has taken such care, he will not be liable for loss, 
 destruction, or deterioration of the trust-property. Thus, 
 a trustee was held not to be liable when the trust-property 
 was stolen from his house, together with property of his 
 own. 3 So, where the defendant, an administratrix, had 
 Loss oc- handed over certain goods to her solicitor, from whose cus- 
 ageut! edby tody they were stolen, it was held that she should not be 
 charged. 4 Where, however, the loss is occasioned by the 
 act of a person employed by the trustee, the trustee will 
 have to bear the loss; 5 as where the loss is caused by his 
 solicitor, having committed a fraud on the occasion of the 
 investment of the fund on mortgage. 6 
 
 By act of Where the trust-property consists of securities or articles 
 co-trustee, ^j^ p ass by delivery, and there are sevei-al trustees, the 
 property should be deposited with the bankers of the 
 trustees; and if it is so deposited, and the bankers, without 
 the privity or concurrence of the co-trustees, allow one of 
 the trustees to have access to the property, and he makes 
 away with it, the co-trustees remaining ignorant of the 
 fact are not liable to make good any portion of the pro- 
 perty misappropriated. 7 An executor is not bound to 
 insure, or continue the insurance of, his testator's property 
 against fire. 8 
 
 Trust- fund Where the trust-fund consists of money, the trustee, 
 P en d>ng investment, may place the money in the hands 
 of a banker. 9 The trustee should open a separate account 
 in the name of the trust-estate, and should not mix the 
 trust-fund with his own money. If he does so, he will be 
 
 1 Act X of 1877, s. 437, as amended by Act XII of 1879, s. 72. 
 
 2 Morley v. Morley, 2 Ch. Cas., 2 ; Jones r. Lewis, 2 Yes., 240 ; 
 Attorney-General f. Dixie, 13 Ves., 534; Massey v. Banner, 1 Jac. & 
 W., 247. 
 
 3 Morley v. Morley, 2 Ch. Cas., 2. 
 
 4 Jones v. Lewis. 2 Ves., 240. 
 
 5 Bostock v. Floyer, L. R.. 1 Eq., 28. 
 
 Sutton v. Wilders, L. R., 12 Eq., 373. 
 
 7 Mendes v. Guedalla, 2 Johns. & II.. 259. 
 
 8 Bailey v. Gould, 4 Y. & C., Ex., 221 ; Dobson v. Land, 8 Hare, 216 ; 
 Fry v. Fry, 27 Beav., 146. 
 
 9 Ronth v. Howall, 3 Ves., 565 ; Jones o. Lewis, 2 Ves., 241 ; Adams r. 
 Claxton,6 Ves.,226. 
 
CONTROL OF TRUST-FUND. 141 
 
 liable in case the banker fails. 1 And a trustee will be LECTUHE 
 liable for loss, if he allows a person to draw upon the trust- VI. 
 property in the bank, and such person misappropriates the 
 money. 2 And he will be liable for the failure of a 
 banker, 3 or broker, 4 if the money ought to have been 
 invested or otherwise dealt with, and not left in the bank- 
 er's or broker's hands : and the usual indemnity-clause 
 will not in such cases protect the trustee. 5 
 
 The trustee must be careful not to put the trust-fund Control of 
 out of his control and under the control of other persons. 
 If he does so, he guarantees the solvency of those persons, 
 and will be answerable for any loss that may ensue ; 6 
 and the liability will be the same, although the persons 
 under whose control the property was left were co-trustees. 7 
 
 In a case before Sir A. Hart, in Ireland, an executor was 
 held to be justified, though he had placed the assets in a 
 bank so as to be under the control of the co-executor. The 
 money was entered in the books to the joint account of the 
 co-executors, but the bank was in the habit of answering 
 the cheques of either co-executor singly. " It is the cus- 
 tom of bankers," said Lord Chancellor Hart, " that what is 
 deposited by one to the joint account may be withdrawn 
 by the cheque of the other ; and for convenience of busi- 
 ness, it is necessary this risk should be incurred, for it 
 would be very hard to transact business if every cheque 
 should be signed by all the executors." However, his Lord- 
 ship admitted, that " if there were any fraud or collusion, 
 wilful default or gross neglect, or if the executor had any 
 reason to put a stop to the mismanagement by the co-exe- 
 cutor, the case would be altered." 8 " But," says Mr. Lewin, 
 " even with this qualification the doctrine is so contrary to 
 the principle of other cases, that no trustee or executor 
 could be advised to rely upon it in practice." 
 
 1 Wilks r. Groom. 3 Drew., 584; Johnson v. Newton. 11 Hare. 160; 
 Swinfen r. Swinfen (Xo. 5). 29 Beav.. 211 ; Pennell v. Deffell. 4 D. M. G., 
 38<) : EJC parte Kingston, L. R . 6 Ch.. 632 : and see In re Hallett's Estate, 
 Knatchbull r. Hallett. L. R.. 13 Ch. Div.. 696. 
 
 - Ingle v. Partridge, 32 Beav.. 661 ; Evans v. Bear, L. R., 10 Ch., 
 76: Ferguson r. Ferguson, ib., 661. 
 
 3 Challen v. Shippam, 4 Hare, 555 ; Swinfen v. Swinfen, 29 Beav., 211; 
 Rehden r. Wesley, ib., 213. 4 Mathews v. Brise, 6 Beav., 239. 
 
 5 Rehden v. Wesley, 29 Beav.. 213. 
 
 6 Salway v. Salway. 2 R. & M.. 218 : affd., nom. White -e. Baugh, ib., 220. 
 ' Lewis v. Nobbs, L. R.. 8 Ch. Div.. 591. 
 
 8 Lewin, 7th Ed.. 292, citing Kilbee r. Sneyd. 2 Moll., 186. 
 
142 TRUSTEE TO PREVENT WASTE. 
 
 LECTURE Trustees will be liable for loss incurred by the failure of 
 
 bankers, if it was their duty to have invested the trust- 
 
 FaihTnTof moneys, 1 or to have paid them over to new trustees, 2 
 
 banker. or into Court. 3 
 
 An investment with the bankers themselves upon the 
 security of their notes-of-hand is not sufficient, for that is 
 merely a personal security. 4 
 
 But executors require a certain amount of ready-money 
 to enable them to wind up their testator's estate, and are 
 entitled to keep such a sum uninvested at their bankers, 
 and will not be made liable if it is lost within the year 
 allowed for satisfying claims. 5 
 
 Where executors drew trust-funds out of one bank, and 
 invested them on a deposit account at interest in another 
 bank, such an investment not being authorized by the will, 
 they were held to be personally liable, notwithstanding a 
 clause in the will indemnifying them against losses by a 
 banker of money deposited for safe custody. 6 
 
 It is a grave breach of duty in trustees or administrators 
 taking out letters of administration to estates in this coun- 
 try, under powers-of-atfcorney from executors or next-of-kin 
 abroad, to mix the incomes raised by them from trust-pro- 
 perties, or the funds of the estate, in one common fund 
 with their own moneys, and such a course of dealing may 
 expose the trustees or administrators to criminal as well as 
 civil liabilities. 7 
 
 Trustee to Where a trust is created for several persons in succession, 
 ^ wnere property is devised to trustees, upon trust, to per- 
 mit A to enjoy the rents and profits for his life, and after 
 his death an interest in the property is given to B, and the 
 person having the life-estate commits, or threatens to com- 
 mit, any act which is destructive or permanently injuri- 
 ous to the trust-estate, such as cutting down timber or des- 
 troying houses, the trustees ought to sue for an injunc- 
 tion to restrain the tenants-for-life from committing the 
 acts of waste. " There can be no doubt," said Lord Lang- 
 
 1 Moyle v. Moyle, 2 R. & M., 710 ; Johnson v. Newton, 11 Hare, 160. 
 
 2 Lunham v. Blundell. 4 Jur.. N. S., 3. 
 
 3 Wilkinson v. Bewick, 4 Jur., N. S., 1010. 
 
 4 Darke v. Martyn, 1 Beav., 525. 
 
 5 Johnson v. Newton, 11 Hare, 160 ; Swinfen v. Swinfen (No. 5), 
 29 Beav., 211. 
 
 6 Rehden v. Wesley, 29 Beav.. 213. 
 
 7 In re Cowie, I. L. R., 6 Calc., 70 : see Lewin, 7th Ed., 273, for the 
 English authorities. 
 
PERMISSIVE WASTE. 143 
 
 dale, " that it is the duty of the trustee to protect the LECTURE 
 property against the improper acts of the tenant-for- VI - 
 life." 1 And if the persons in remainder are unborn, or under 
 disability, the trustees are bound to interfere. 2 This is 
 the duty of the trustees, but if they do not interfere, the 
 remainderman has a right to apply for the injunction. 3 
 So in the case of mortgages, if the mortgagor or mort- 
 gagee in possession commits waste, or threatens to commit 
 it, an injunction will be granted. 4 
 
 An injunction can only be obtained to prevent the p e nnis- 
 commission of acts of active waste, not to restrain sive waste, 
 the tenant-for-life from allowing permissive waste, as 
 by jillowing the trust-property to fall into disrepair. 5 
 " I think," said Wood, V.C., " that it is not possible 
 to obtain a remedy against permissive waste indirectly 
 through the medium of a trust created in the pro- 
 perty. If I were to hold that, it would be most incon- 
 venient. If every trustee is to be considered liable, though 
 merely a trustee under a will, which devises the property 
 to and to his use, as in Denton v. Denton, 6 in cases of 
 permissive waste for want of repairs, the difficulty which is 
 now felt of getting respectable persons to act as trustees 
 would be increased. I can foresee no end to the demands 
 which would be made upon trustees by remaindermen 
 coming into possession of the trust-property, who might 
 think it not sufficiently repaired, if they might say to the 
 trustees ' it was your duty to look after the tenant-for-life, 
 you had the legal estate, and it was your business to see 
 that he was performing all these trusts ; and as you have 
 not done so, we shall fix you with the liability. ' I think 
 that such a doctrine cannot possibly be established." 7 On 
 appeal, 8 the decision of Wood, V.C., was affirmed, Lord 
 Cottenham, L.C., saying : " It was argued, independently 
 of the trust, that it is the duty of a tenant-for-life 
 to repair. ' Equitas sequitur legem' But even legal 
 liability now is very doubtful. 9 Whatever be the legal 
 
 1 Pugh v. Vaughan. 12 Beav., 517, 520. See also Denton v. Denton, 
 7 Beav., 388 ; Powys v. Blagrave. Kay, 495 ; 4 D. M. G., 448. 
 
 2 Powys v. Blagrave, Kay, 495 ; 4 D. M. G.. 448. 
 
 3 Perrot v. Perrot, 3 Atk., 94 ; Viner v. Vaughan, 2 Beav., 469. 
 
 4 Robinson r. Litton. 3 Atk.. 485 ; Garth r. Cotton, 1 Dick., 183 ; 
 1 Ves., 524, 546 ; Stansfield v. Habergham, 10 Ves., 277. 
 
 5 Denton v. Denton, 7 Beav., 388 ; Pugh v. Vaughan, 12 Beav., 517. 
 
 6 7 Beav., 388. ' Powjs i: Blagrave, Kay, 495, 506. 
 
 8 4 D. M. G., 448. 
 
 9 Gibson i: Wells, 1 N. R.. 291 ; Herne r. Benbow, 4 Taunt... 7C4. 
 
PERMISSIVE WASTE. 
 
 LECTUBE 
 VI. 
 
 Cestui que 
 trrist may 
 not benefit 
 by waste. 
 
 Tenants- 
 for-life 
 without 
 impeach- 
 ment of 
 waste. 
 
 liability, this Court has always declined to interfere 
 against mere permissive waste. Lord Castlemain v. Lord 
 Craven ; x there the Master of the Rolls said, ' the Court 
 never interposes in case of permissive waste either 
 to prohibit or to give satisfaction, as it does in case 
 of wilful waste.' On this ground relief was refused in 
 Wood v. Gaynon? In that case a tenant-for-life had 
 been guilty of permissive waste, and the plaintiff and one 
 of the defendants, Benjamin Lyme, were the reversioners ; 
 L} 7 me refused to join with the plaintiff in an action at law. 
 The Master of the Rolls refused to assist the plaintiff', say- 
 ing that as there was no precedent he would not make 
 one ; adopting the argument, that it would tend to harass 
 tenants-for-life and jointresses, and that suits of this kind 
 would be attended with great expense in depositions about 
 the repairs. With respect to the case of Caldwall v. 
 Baylis? it does not sustain the doctrine for which it was 
 cited. The case of Re Skingley 4 was founded on the express 
 obligation of the lunatic to repair. I do not refer to the 
 cases where the question has been as to the right to charge 
 assets. There the decisions have rested on other grounds. 
 There is no precedent for what is asked in this respect. 
 I certainly will not be the first to make one." 
 
 If the person in possession of the trust-estate, the tenant- 
 for-life, commits active waste, he will not be permitted to 
 derive any benefit from his wrongful act, but the money 
 arising therefrom will be preserved for the remainder- 
 men. 5 If, however, the tenant-for-life has expended 
 money in permanent improvements on the trust-estate, he 
 will be allowed credit for such sums. 6 
 
 If the cestui que trust is tenant-for-life without impeach- 
 ment of waste, that is to say, if the instrument creating 
 the trust declares that the tenant-for-life shall not be 
 punishable for waste, or the cestui que trust is tenant- in- 
 tail after possibility of issue extinct, which is the case 
 where an estate is limited to a man and the heirs of his 
 body by a particular wife, and she dies without having 
 had children, or none of her children are living at her 
 death, the cestui que trust may commit ordinary waste. 
 
 1 22 Vin. Abr., 523, tit. ' Waste,' pi., 11. 
 
 2 Amb.. 395. 3 2 Her., 408. 4 3 Mac. and G.. 221. 
 
 5 Garth r. Cotton. 2 Ves., 524 ; 1 Dick.. 183 ; Williams v. Duke of 
 Bolton, 3 P. Wms., 268 (ft) ; Seagram v. Knight, L. R., 2 Ch., 628. 
 Birch Wolfe v. Birch, L. R., 9 Eq., 683. 
 
RESTRAINING WASTE. 145 
 
 But he will be restrained from committing what is known LECTUBK 
 as 'equitable waste,' by felliug timber planted or left VI - 
 standing for the shelter or ornament of the family mansion- 
 house or grounds. 1 
 
 It is not necessary, in order to give the Court ground for When 
 interfering, that the plaintiff, whether trustee or remainder- p ourt!na y 
 man, should wait until a serious act of waste has been 
 committed ; 2 but the Court will interfere if a fair case of 
 prospective injury has been made out. 3 The mere appre- 
 hension or belief that waste will be committed is not suffi- 
 cient ; 4 but if an intention to commit waste can be shown 
 to exist, or if a man insists on his right, or threatens to 
 commit waste, there is a foundation for the exercise of the 
 jurisdiction. 5 
 
 If the act of waste is trivial, the Court will not interfere, 
 unless it appears that further waste is intended or threat- 
 ened. 6 
 
 In order to obtain the assistance of the Court, it is only 
 necessary to prove that a single act of waste, whether 
 legal or equitable, has been committed. 7 
 
 The broad principle upon which a Court administering p r i nc i p i e 
 equity acts in restraining a person, who has only a limited on which 
 interest in property of which he is in possession, from 
 destroying or injuring such property, is, that of protecting 
 property from irreparable injury, and to prevent a mali- 
 cious, wanton, and capricious abuse of their rights and 
 authorities, by persons having but a temporary and limited 
 interest in the subject-matter. By irreparable injury is 
 meant, not such injury as cannot by any possibility be 
 repaired, but serious and material injury, which cannot be 
 adequately compensated for by pecuniary damages. 8 
 
 Acting upon principles in some respects analogous to waste by 
 those upon which the Court of Equity in England act in H .' 
 
 1 See Garth v. Cotton, 1 Yes.. 524. 546 ; 1 Dick., 183, and the notes to 
 that case, 1 Wh. and T. L. C., 4th Edn.. pp. 697, 750. 
 Gibson r. Smith. 2 Atk.. 182 ; Coffin c. Coffin, Jac., 71. 
 
 3 Tipping r. Eckersley. 2 K. and J., 264 ; Elliott r. North-Eastern R. C., 
 1 J. and H., 145 ; 2 D. F. and J., 423 ; 10 H. L., 333 ; Hext c. Gill, 
 L. R., 7 Ch.. 700. 
 
 4 Hanson v. Gardiner, 7 Ves., 307 ; Potts v. Potts, 3 L. J., Ch., 17C; 
 Campbell i: Allgood, 17 Beav., 623. 
 
 5 See cases cited in the preceding notes. 
 
 6 Brace r. Taylor. 2 Atk.. 253 ; Barry v. Barry. 1 J. and W., 653 ; Lam- 
 bert r. Lambert. 2 Ir. Eq., 210 ; Coffin r. Coffin, Jac., 71. 
 
 7 Coffin v. Coffin, 6 Madd., 17. 
 
 8 See Kerr ou Injunctions, Ch. III. s. 1. 
 
 19 
 
14G WASTE BY HINDU WIDOW. 
 
 LECTURE restraining a tenant-for-life from committing waste, the 
 
 VI' Courts of this country have, in many instances, restrained 
 
 a Hindu widow from acts injurious to the property which 
 
 she has inherited from her husband. 1 "Such acts/' mya 
 
 Mr. Mayne, 2 " are of two classes : -first, those which 
 
 diminish the value of the estate ; second, those which 
 
 endanger the title of those next in succession. First, 
 
 under this head come all acts which answer to the 
 
 description of waste, that is, an improper destruction 
 
 or deterioration of the property. The right of those next 
 
 in reversion to bring a suit to restrain such waste, wa.s 
 
 established apparently for the first time by an elaborate 
 
 judgment of Sir L. Peel, in 1851, in Hurrydass Dutt v. 
 
 Hungumnoney. What will amount to waste has never 
 
 been discussed. Probably no assistance upon this point 
 
 could be obtained from an examination of the English 
 
 cases in regard to tenants-for-life. The female heir is, for 
 
 all purposes of beneficial enjoyment, full and complete 
 
 owner. She would, as I conceive, have a full right to cut 
 
 timber, open mines, and the like, provided she did so for the 
 
 purpose of enjoying the estate, and not of injuring the 
 
 reversion. As Sir L. Peel said : ' The Hindu female is 
 
 rather in the position of an heir taking by descent until a 
 
 contingency happens, than an heir or devisee upon a trust 
 
 by implication. Therefore, a bill filed by the presumptive 
 
 heir in succession against the immediate heir who has 
 
 succeeded by inheritance, must show a case approaching 
 
 to spoliation.'" " It is necessary," said the Right Hon. T. 
 
 Pemberton Leigh, 3 " to show that there is danger to the 
 
 property from the mode in which the party in possession 
 
 is dealing with it, in which case, and in such case only, 
 
 the Court will interfere." 4 
 
 Suit for If the widow has committed an act involving forfeiture 
 
 possession. o f property, the reversioners will be entitled to immediate 
 possession. 5 A suit will lie for possession with a view to 
 the prevention of waste, either inchoate or threatened, though 
 of course evidence of such a nature must l>e procured as 
 will convince the Court that, but for its interference, 
 
 1 See Nundlal Baboo r. Bolakee Bebee. S. D. A. of 1834, p. 351. 
 - Hindu Law and Usage. 2nd Ed., .>.">.",. 
 
 3 Hurry Doss Dutt /. S. M. Uppoornah Uos.ee. G Moo. I. A.. 44(5. 
 
 4 See also Bindoo Bassinee Dossee /. Boliecband Sett. 1 W. R., 125; 
 Grose v. Amirtamayi Dassi, 4 B. L. R. . O. C., 1. 
 
 ' M. S. Kishnee v. Kbealee Ram. 2 N. W. P., 424. 
 
ALIENATION BY HINDU WIDOW. 
 
 ultimate loss to the heirs by succession will ensue. 1 The LECTURE 
 ground for removing the widow from the management of VI - 
 the property in these cases is, that she has proved herself 
 to be unworthy of the confidence reposed in her. 2 
 
 When it is shown that ultimate loss to the estate will result Receiver, 
 from the acts of the widow, the Court will appoint a receiver, 
 who may be the reversionary heir. His appointment as 
 such is not by virtue of his reversionary right, but on 
 a consideration of what is most for the benefit of the 
 estate. 3 
 
 Although the widow may be removed from the manage- 
 ment of the property, she will remain entitled to the rents 
 and profits, which must be paid to her by the receiver. It 
 is not competent to the Court to put the reversioner into 
 possession assigning maintenance to the widow. 4 
 
 Where a widow gave up possession of property upon a 
 claim being made to it, and refused to have anything 
 to do with it, it was held, that the reversioners were 
 entitled to sue the widow and the person to whom she had 
 given up possession for a declaration of their title, and 
 that the proper course for the Court to adopt was, to 
 uppoint a manager to collect the assets of the estate, who 
 should account for them to the Court, and the Court should 
 hold them for the benefit of the reversionary heirs. 5 
 
 If a widow has alienated the property, and it is in the Alienation 
 hands of a third person, the reversionary heirs may sue b - v Wldow - 
 the grantee to prevent waste or destruction of the pro- 
 perty, whether moveable or immoveable. But they will 
 have no cause of action unless they charge waste or 
 injury to the property which may affect their rights as 
 reversioners. 7 
 
 1 Goureekanth Dass r. Bhogobutty Dassce, S. D. A. of 1858, p. 1103 ; 
 Goluk Moiiee Dassee r. Kisbenpevsad Kanoongoe, S. D. A. of 1859, p. 210. 
 
 2 Nundlal Baboo v. Bolakee Bebee. S. D. A. of 1854, pp. 351, 366. 
 
 * Goluk Monee Dassee v. Kishenpersad Kanoongoe, S. D. A. of 1859, 
 p. 210 ; M. S. Maharani r. Nand Lai Misser, 1 B. L R.. A. C.. 27. 
 
 4 Nundlal Baboo r. Bolakee Bebee, S. D. A. of 1854. pp. 351. 370 ; Go- 
 lukmonee Dassee v. Kissenpersbad Kanoongoe, S D. A. of 1859, p. 210 ; 
 M. S. Lodboomona Dassee r. Gunnesh Chuuder Dutt, ib., 436 ; M. S. 
 Maharani r. Nuudalal Misser. 1 B. L. R., A. C., 27 ; Shama Soonduree 
 v. Jumooua Obowdbrain, 24 W. R., 86. 
 
 5 Radha Mohan Dhar r. Ram Das Dey, 3 B. L. R., 362. 
 
 6 Gobindmani Dasi r. Sbam Lai Bysak, B. L. R., F. B. Rul., 48 ; 
 Kamavadhaui Veukata Subbaiya v. Joysa Narasiugappa, '2 Mad. II. C. R., 
 116. 
 
 7 M. S. Suraj Bansi Kunwar r. Mahipat Sing, 7 B. L. R., 669. 
 
148 
 
 CONVERSION OF PERISHABLE PROPERTY. 
 
 LECTURE 
 VI. 
 
 Proper 
 parties to 
 sue. 
 
 The proper persons to sue to restrain a widow from com- 
 mitting acts of waste are the immediate reversionary heirs. 1 
 
 In Bama Soonduree Dossee v. Bama Soonduree Dossee* 
 it was held, that persons whose rights are only inchoate and 
 remote cannot bring such a suit. But, according to the 
 later decisions, it seems that contingent reversioners may 
 sue. In the recent case of Chottoo Misser v. Jemah 
 Misser? Garth, C. J., said : " It appears to me that this 
 is one of that class of cases which are referred to in the 
 Shivagunga case* as being exceptions to the general rule, 
 which is there laid down. In page 191 of the judgment 
 their Lordships allude to suits brought against Hindu 
 widows by presumptive reversioners to restrain waste and 
 the like, as being ' suits of a very special class, which have 
 been entertained by the Courts ex necessitate rei. ' They 
 expressly say that, in such cases, the reversioner cannot 
 get a declaration of his own title as against third persons ; 
 but he is permitted to sue as the presumptive heir, be- 
 cause, unless he were allowed to bring such a suit, there 
 would be no means of preventing a widow from doing 
 perhaps irremediable mischief to the estate. And suits like 
 the present, it seems to me, come clearly within the prin- 
 ciple of that exception." 
 
 And if the immediate reversioners are colluding with the 
 widow, the contingent reversioners may sue to protect the 
 estate. 5 
 
 A stranger cannot sue, even with the consent of the 
 heirs, or by making them parties ; 6 nor can an assignee 
 of a reversionary heir, even though he is the next rever- 
 sionary heir to the husband after the assignor. 7 
 
 Conversion Where a trust is created for several persons in succession, 
 ab^'pro'- as where there is a devise to one for life with remainder 
 
 perty. 
 
 1 Raj Lukhee Dabea v. Gokool Chunder Chowdhry. 13 Moo. I. A.. 209, 
 224 ; Kooer Golab Sing v. Rao Kurun Sing. 14 Moo. I. A., 176 ; Jumoona 
 Dassya Chowdhrani v. Bama Soonderai Dassya Chowdhrani, L. R., 
 3 I. A., 72 ; Gogun Chunder Sein v. Joydoorga. S. D. A. of 1859. p. 620. 
 
 MOW. R.. 301. 
 
 3 I. L. R., 6 Calc., 198. 
 
 4 Kattama Natchiar v. Dorasinga Tever. L. R.. 2 I. A., 169. 
 
 5 Naikramlall v. Soorujbuns Sahee. S. D. A. of 1859, p. 891 ; Shama 
 Soonduree Chowdhrain . Jumoona Chowdhrain. 24 W. R., 86 ; Retoo Raj 
 Pandey v. Lalljee Pandey. ib. , 399 ; Kooer Goolab Sing v. Rao Karun 
 Singh. 14 Moo. I. A.. 176, 193. 
 
 s Brojo Kishoree Dassee r. Sreenath Bose, 9 W. R.. 463. 
 7 Raicbaran Pal v. Pyari Mani Dasi. 3 B. L. R., O. C., 70. 
 
 Collusion 
 by imme- 
 diate rever- 
 sioner. 
 
CONVERSION OF PERISHABLE PROPERTY. 
 
 over, 1 and the subject-matter of the trust consists of LECTUKE 
 property of a wasting description, such as leaseholds or VI - 
 long annuities, and no authority is expressly given to the 
 trustees to convert, the Court assumes that it was the 
 intention of the author of the trust that the trust-estate 
 should be converted into property of a permanent character, 
 otherwise the interest of the reversioners will run the risk 
 of being damaged or destroyed; and it becomes the duty of 
 the trustees, unless a contrary intention appears from the 
 instrument creating the trust, to convert the property 
 into property of a permanent nature, 2 and their omission 
 to do so will be a breach of trust. 3 The doctrine will 
 apply, though there are no trustees, but the bequest is 
 made to the tenant-for-life directly. 4 The leading case on 
 this point is Howe v. Earl of Dartmouth. 5 In that case a Howe 
 testator had bequeathed all his personal estate to his wife Earl of ' 
 for life with remainders over ; part of the property consisted Dartmoutb ' 
 of annuities ; and it was held, that they ought to be con- 
 verted, and the proceeds invested in Government securities. 
 Lord Eld on said : " Unless the testator directs the mode, so 
 that it is to continue as it was, the Court understands that 
 it shall be put in such a state, that the others may enjoy it 
 after the decease of the first, and the thing is quite equal, 
 for the bequest might consist of a vast number of parti- 
 culars ; for instance, a personal annuity, not to commence 
 in enjoyment till the expiration of twenty years from the 
 death of the testator, payable upon a contingency perhaps. 
 If in this case it is equitable that long or short annuities 
 should be sold, to give everyone an equal chance, the 
 Court acts equally as in the other case ; for those future 
 interests are, for the sake of the tenant-for-life to be con- 
 verted into a present interest, being sold immediately in 
 order to yield an immediate interest to the tenant-for-life. 
 As in the one case, that in which the tenant-for-life has too 
 great an interest is melted for the benefit of the rest ; in 
 the other, that of which, if it remained in specie, he 
 might never receive anything, is brought in, and he has 
 
 1 See Lichfield . Baker, 2 Beav.. 481 ; Crawley v. Crawley, 7 Sim., 
 427 ; Sutherland v. Cooke. 1 Coll., 498 ; Johnson v. Johnson. 2 Coll., 441 ; 
 Fearns v. Young, 9 Ves., 549 : Benn r. Dixon, 10 Sim., 636 ; Oakes v. 
 Strachey. 13 Sim.. 414 : Re Shaw's Trust. L. R., 12 Eq., 124. 
 
 - See DeSouza v. DeSouza. 12 Bom., 189. 
 
 3 Bate n. Hooper, 5 D. M. G.. 338. 
 
 4 House v. Way, 12 Jur., 958. * 7 Ves., 137. 
 
150 CONVERSION OF PERISHABLE PROPERTY. 
 
 LECTURE immediately the interest of its present worth." In Picker- 
 ing v. Pickering? where the property consisted of lease- 
 holds, Lord Cottenham said, p. 298 : " Very nice distinctions 
 Picker- have been taken, and must have been taken, in determin- 
 ing whether the tenant-for-life is to have the income of 
 the property in the state in which it is at the time of the 
 testator's death, or the income of the produce of the con- 
 version of the property. The principle upon which all the 
 cases on the subject turn is clear enough, although its 
 application is not always very easy. 
 
 " All that Howe v. Lord Dartmouth* decided and that 
 was not the first decision to the same effect is, that, where 
 the residue or bulk of the property is left en masse, and 
 it is given to several persons in succession as ten ants- for- 
 life and remaindermen, it is the duty of the Court to 
 carry into effect the apparent intention of the testator. 
 How is the apparent intention to be ascertained if the 
 testator has given no particular directions ? If, although 
 lie has given no directions at all, yet* he has carved out 
 parts of the property to be enjoyed in strict settle- 
 ment by certain persons, it is evident that the property 
 must be put in such a state as will allow of its being 
 so enjoyed. That cannot be, unless it is taken out of a 
 temporary fund and put into a permanent fund. But 
 that is merely an inference from the mode in which the 
 property is to be enjoyed, if no direction is given as to 
 how the property is to be managed. It is equally clear 
 that if a person gives certain property specifically to one 
 person for life, with remainder over afterwards, then, 
 although there is a danger that one object of his bounty 
 will be defeated by the tenancy-for-life lasting as long as 
 the property endures, yet there is a manifestation of inten- 
 tion which the Court cannot overlook. If a testator 
 gives leasehold property to one for life, with remainder 
 afterwards, he is the best judge whether the remainder- 
 man is to enjoy. The intention is the other way, so far 
 as it is declared, and the terms of the gift, as a declaration 
 of intention, preclude the Court from considering that he 
 might have meant that it should be converted. Those two 
 kinds of cases are free from difficulty, but other cases of 
 very great difficulty may occur in which it may be very 
 doubtful whether the testator has left property specifically, 
 
 1 4 My. & Cr., 289. 2 7 Ves., 137. 
 
CONVERSION OF PERISHABLE PROPERTY. 
 
 but in which there are expressions which raise the question 
 whether the property is not to be enjoyed specifically ; VI - 
 for, as the Master of the Rolls appears to have observed iu 
 the present case, the word ' specific,' when used in speak- 
 ing of cases of this sort, is not to be taken as used in its 
 strictest sense, but as implying a question whether, upon 
 the whole, the testator intended that the property should 
 be enjoyed in specie. Those are questions of difficulty, 
 because the Court has to find out what was the intention 
 of the testator as to the mode of management and as to 
 the mode of enjoyment." 
 
 The rule does not proceed upon the assumption that the 
 testator intended his property to be sold, except so far as a 
 testator may be presumed to intend that which the law will 
 imply from the directions in his will. The rule proceeds 
 upon this, that the testator has intended the enjoyment 
 of perishable property by different persons in succession, 
 and this can only be accomplished by means of a sale. 1 
 
 The rule will not apply if the property is specifically Excep- 
 given to persons in succession, 2 even though a discretionary tions from 
 power of changing the property is given to the trustees, 3 ru 
 for such a power is given to them with a view to the secu- 
 rity of the property, and not with a view to vary or affect 
 the relative rights of the legatees, and indeed shows that 
 the property was intended to be converted. 4 So, the rule 
 will not apply if it clearly appears that the author of the 
 trust intended the property to be enjoyed in specie. 5 " The 
 question," said Lord Langdale, 6 " does not depend on the 
 legacy being specific or not, but you are to collect from the 
 will whether the testator intended that the property should 
 at all events be enjoyed by those in remainder after the 
 expiration of the prior interest." 7 If the property is not to 
 be converted until a certain time has expired, the trustees 
 will not be justified in converting it until that time arrives. 8 
 
 If there is no indication in the will that the property 
 
 1 Cafe v. Bent. 5 Hare, 34. ver Wigram, V. C. 
 
 2 DeSouza v. DeSouza, 12 Bom., 190. 
 
 3 Lord v. Godfrey. 4 Madd., 455; In re Sewell's Estate, L. R., 11 Eq., 80. 
 
 4 Morgan v. Morgan, 14 Beav., 72 ; Re Llewellyn's Trust, 29 Beav.. 173. 
 
 5 Holgate v. Jennings, 24 Beav.. 523 ; Mackie v. Mackie, 5 Hare, 70. 
 
 6 Hubbard v. Young, 10 Beav., 205. 
 
 7 And see Harris r. Payne, 1 Drew.. 181. 
 
 8 Rowe r. Rowe, 24 Beav., 276; Green r. Britten, 1 DeG J. &: S., 
 055. See further as to expressions which negative the effect of the rule, 
 Lewiu, 7th Edu., 27D. 
 
152 TRUSTEE TO BE IMPARTIAL. 
 
 LECTURE is not to be converted, there must be a conversion. 1 The 
 
 VI - leaning of the Judges of the Court of Chancery has been 
 
 rather against, than in favour of, the application of the 
 
 rule, and the effect of the later cases has been to allow 
 
 small indications of intention to prevent its taking effect.'' 5 
 
 Where a testator, after giving estates in succession, em- 
 powered his trustees to retain all or any portion or por- 
 tions of his trust-estate in the same state in which it 
 should be at the time of his decease, or to sell or convert 
 the same, or any part thereof, into money in such manner 
 and for such prices and under such terms and conditions 
 as they should, in their absolute and uncontrolled discretion, 
 think fit, it was held the case was taken out of the rule. 3 
 
 Trustee to A trustee is bound to be impartial in executing the trust, 
 tiai. mi an d rnust not benefit one cestui que trust at the expense 
 of another. Thus, where a testator by his will desired his 
 trustees to give up his farm to his nephew, the plaintiff, if 
 the landlord would accept him as tenant ; and in that case 
 he bequeathed to him the farming-stock ; and the testator 
 also gave some real property to the plaintiff, and gave lega- 
 cies and annuities to the plaintiffs father, mother, and sisters, 
 and other persons including the trustees, one of whom was 
 steward to the landlord, and there were hardly any assets 
 to pay the legacies and annuities, if the plaintiff took the 
 farming-stock, upon which the trustees represented the 
 case to the landlord, who left it to their decision whether 
 the plaintiff should be accepted as tenant ; and they accord- 
 ingly refused to let him be accepted, unless he executed 
 a deed making over the devised real estate to pay the 
 legacies and annuities, it was held, that it was a breach 
 of trust on the part of the trustees to endeavour to induce 
 the landlord to refuse his consent to the plaintiff having the 
 tenancy, and that the deed must be set aside. James, L. J., 
 said : " The trustees honestly believed that the testator 
 had made a mistake. Still they were the trustees of that 
 will, and their duty was to carry its trusts into effect 
 impartially ; they had no right to use the power given to 
 them by their position as trustees ; or any other power 
 
 1 Pickering v. Pickering, 4 My. & Or., 289 ; Morgan v. Morgan, 
 14 Beav., 72 ; Craig v. Wheeler, 29 L. J., Ch., 374. 
 
 - Macdonald t;. Irvine, L. R., 8 Ch. Div., 121, per Thesiger, L. J. 
 
 * Gray v. Siggers, L. R., 15 C. D.. 77. As to directions to accumulate 
 and to lay out the income in land, see Lewin, 7th Edn., 276 280. 
 
DISCRETION OF TRUSTEES NOT INTERFERED WITH. 153 
 
 which they had, as a means of making a new will for the LECTURE 
 testator ; for that is what their proceedings come to. ... VI - 
 It was a breach of duty on the part of the trustees to 
 endeavour to induce the landlord to refuse his consent on 
 any grounds to what the testator showed by his will that 
 he wished and intended." 1 
 
 If the author of the trust has reposed a discretionary Discretion 
 power in the trustees, either to do or to abstain from doing Winter 68 
 certain things, the Court has no power or jurisdiction to fered with, 
 control the trustees in the exercise of their discretion, so 
 long as they act in good faith, and their determination is 
 not influenced by improper motives. 2 " If, " said Wioram, 
 V. C., 3 "the gift be subject to the discretion of another person, 
 so long as that person exercises a sound and honest discre- 
 tion, I am not aware of any principle or authority upon 
 which the Court should deprive the party of that discre- 
 tionary power where a proper and honest discretion is 
 exercised." And in the recent case of Gisborne v. Gisborne* 
 Lord Cairns said : " No doubt various cases have occurred 
 in the Court of Chancery, in which, either from the trustees 
 submitting to the Court the question of how they ought to 
 exercise apower ora trust reposed in them, or from questions 
 haviugbeen raised by the parties interested as to whether a 
 trust for maintenance or a similar trust had actually arisen and 
 ought to be acted upon, decisions have been arrived at by 
 the Court which I should be very unwilling to throw the 
 least doubt upon ; but those decisions appear to me not at 
 all to touch the present case, where, as I shall submit to 
 your Lordships, you have the trustees made the absolute 
 masters of the question, where you have them armed with 
 a complete and uncontrolled discretion, and where they 
 come before you stating that they are prepared to exercise 
 that discretion within the limits within which it is con- 
 fided to them by the will." 5 
 
 Thus the Court will not interfere with the exercise of a Selecting 
 discretionary power of selecting particular objects of the ^ 
 trust. 6 For instance, where property was devised to trustees 
 
 1 Ellis v. Barker, L. R., 7 Ch., 104. 
 
 2 See the cases collected, Lewin, 7th Edn., 530. 
 
 3 Costabidie v. Costabidie. 6 Hare, 414. 4 L. R., 2 App.Cas., 300. 
 
 5 See also Brophy v. Bellamy, L. R., 8 Ch., 798 ; see also Marquis 
 Camden v. Murray, L. R.. 16 C. D., 161. 
 
 6 Horde v. The Earl of Suffolk, 2 M. and K.. 59 ; Holmes v. Penney, 
 3 K, and J., 103; Re Wilkes Charity, 3 Mac. and G., 440. 
 
 20 
 
154 DISCRETION OF TRUSTEES NOT INTERFERED WITH. 
 
 LECTURE upon trust for such of the testator's children and grand- 
 VI - children, or nephews and nieces, as the trustees should 
 think fit, and the trustees gave all to one, the Court refused 
 to interfere. 1 So the Court will not interfere with a power 
 of sale given to trustees, 8 or with a discretionary power to 
 abstain from paying a legacy. 3 So, where a testatrix left 
 1,000 upon a condition precedent, but " left her executor 
 at liberty to give the said sum if he found the thing pro- 
 per," the Court refused to interfere, saying : " The execu- 
 tor says he did not think it proper to advance the legacy. 
 Nothing appears in the conduct of the young man which 
 disqualified him from taking, but it would be quite con- 
 trary to the provisions of the will to hold, that the power 
 given to the executor at his discretion to advance the 
 legacy, gave the legatee a right to claim it absolutely. 
 If that were so, the condition in the will, and the power 
 given to the executor of dispensing with it, w r ould be frus- 
 trated. Is the Court to decide upon the propriety of the 
 executor withholding the legacy ? That would be assum- 
 ing an authority which is confided by the Court to the 
 discretion of the executor. It would be to make a will 
 for the testator instead of expounding it." 4 
 
 Modes of And the Court will not interfere with the trustees' discre- 
 ^ on as ^ one ^ severa ^ authorized modes of investment, 5 
 although the result may be to vary the relative rights of 
 the cestuis que trustent. 6 If, however, infants are interested, 
 the Court will interfere if the proposed securities are clear- 
 ly unsafe. 7 Nor will it interfere with the discretion of 
 the trustees as to maintenance of children, 8 unless it thinks 
 that the discretion is not being properly exercised for the 
 benefit of the infants. 9 Where the trustees had " an un- 
 controlled and irresponsible discretion, " the Court refused 
 to interfere, there being no proof of mala fides, although 
 the trustees did not appear to be acting judiciously. 10 And 
 
 1 Civil v. Rich, 1 Ch. Cas., 309. 2 Thomas v. Dering, 1 Kee., 729. 
 
 * In re Coe's Trusts, 4 K. and J., 199. 
 
 * Pink v. DeThuisey, 2 Madd., 157. 
 
 8 Lee v . Young, 2 Y. and C. C. C., 532. 
 
 8 Minet v. Leman, 20 Beav., 269 ; 7 D. M. G., 340 : see further Lewin, 
 7th Edn., 531. 
 
 7 Bethell v. Abraham, L. JR., 17 Eq., 24. 
 
 * Collins v. Vining, C. P. Coop., 472; Brophy v. Bellamy, L. R., 
 8 Ch., 798. 
 
 9 In re Hodges Davey v. Ward, L. R., 7 Ch. Div., 762. 
 
 10 Tabor v. Brookes, L. R.. 10 Ch. Div., 273 : see also Marquis Camden 
 v. Murray, L. R., 16 C. D., 170. 
 
DISCRETION OF TRUSTEES NOT INTERFERED WITH. 155 
 
 the Court will not interfere with the mode of executing the LECTURE 
 trust. 1 But where the power is accompanied with a duty YI - 
 and meant to be exercised (as a power of leasing), the Court 
 will compel the execution, or execute it in the place of the 
 trustees. So, where the trustees had a power-of-sale " if 
 they should consider it advisable but not otherwise," it 
 was held, that the power, though discretionary in form, was 
 given to the trustees for the purposes of the will, and if 
 those purposes could not be effected without the exercise 
 of the power, they were bound to exercise it. 2 When such 
 a power is conferred upon trustees to be executed by them 
 at a fixed period, and after they have come to a judgment 
 as to the conduct of the individual to be affected, they can- 
 not divest themselves of the power, or execute it until the 
 time appointed ; nor can they enter into any anterior 
 contract respecting it. 3 
 
 Where a trustee had an absolute discretion to apply the Exercise of 
 trust-funds for certain charitable purposes as he might P.* er b ? 
 think fit, and he died without exercising the power inter 
 vivos, but by his will gave definite directions as to the 
 application of the funds, it was held that the power was 
 duly exercised. 4 
 
 Trustees to whom discretionary powers are given, are 
 not bound to state their reasons for exercising the powers 
 in a particular way. But if they do state their reasons, 
 and it appears that their premises are wrong, the Court 
 will then set aside the conclusion. 5 
 
 A trustee cannot set up a title to the trust-property Trustee 
 adverse to that of his cestui que trust. In Lord Ports- ""JVJ/JJ 
 mouth v. Vincent, 6 tenants-at-will, who came into posses- trust . 
 sion under a letting by a receiver in the Court of Chan- property, 
 eery, were, by the neglect of the parties in the cause, 
 allowed to remain in possession for a great number of 
 years, and were not called on for their rent ; they levied 
 fines, and insisted on them as a bar: but Lord Hardwicke 
 said : " No, you gained that possession as tenants under 
 
 1 Mahon v. Savage. 1 Sch. and Lef., 111. 
 
 2 Lewin. 7th Edn.. 530. citing Tempest r. Lord Camoys, W. K, 1867, 
 p. 296 : Nickisson r. Cockell. 2 X. R.. 557. 
 
 3 Weller v. Ker. L. R., 1 Sc. App., 11. 
 
 * Lewin, 7th Edn.. 532. citing Copinger v. Crehane, L. R., 11 Eq., 429. 
 s He Wilke : s Charity, 3 Mac. and G.. 441 ; King (The) r. The Arch- 
 bishop of Canterbury. 15 East. 117. 
 
 6 Cited in Lord Pomfret r. Lord Windsor. 2 Ves., 476. 
 
156 DELIVERY UP OF MOVEABLE PROPERTY. 
 
 LECTURE the receiver of the Court; you gained that possession 
 YI - therefore in confidence, and you shall not, by means of that 
 possession, defeatthe title of the persons for whom you 
 had the possession," and he would not suffer the fine and 
 non-claim as a bar. 1 "Where," said Knight Bruce, V. C., 
 "a person knowingly and expressly acquires the posses- 
 sion of property as a trustee merely, or being in possession 
 makes himself by contract, expressly and without qualifi- 
 cation, a trustee of it, he cannot be allowed effectually to 
 assert against the trust, at least as a defendant in a suit 
 seeking the performance of the trust, any title paramount 
 and adverse to the trust which he may himself have ; he 
 must assert it (if at all) without deriving he must assert 
 it so as not to derive any advantage for it from the 
 possession which he has as trustee, or had in that 
 character." 2 
 
 Claim by if, however, the trustees become aware of a title in a 
 person, third person to the trust-property, and the cestuis que 
 trustent are entitled to claim the property absolutely, the 
 trustees may refuse to deliver over the fund until the 
 question is settled. 3 And trustees cannot set up the adverse 
 title of a third person against their cestuis que trustent* 
 Delivery A trustee who sets up a title to moveable property may 
 moveabie ^ e compelled to deliver it up to his cestui que trust. 
 property. The Specific Relief Act (I of 1877), s. 11, provides, that 
 " any person having the possession or control of a particular 
 article of moveable property, of which he is not the owner, 
 may be compelled specifically to deliver it to the person 
 entitled to its immediate possession, when the thing 
 claimed is held by the defendant as the trustee of the 
 claimant;" and the following illustration is given: "A, pro- 
 ceeding to Europe, leaves his furniture in charge of B as 
 his agent during his absence. B, without A's authority, 
 pledges the furniture to C, and C knowing that B had 
 no right to pledge the furniture, advertises it for sale. 
 C may be compelled to deliver the furniture to A, for he 
 holds it as A's trustee." 
 
 1 See Kennedy v. Daly, 1 Sch. and Lef.. 381 ; Stone v. Godfrey. 5 D. 
 M. G., 76 ; Conry v. Caulfield. 2 Ball and B., 272 ; Langley r. Fisher, 
 9 Beav.. 90 ; Newsome v. Flowers. 30 Beav.. 461 ; Frith r. Cartland, 
 2 H. and M., 417 ; Suboodra Beebee -v. Bikromadit Singh, 14 S. D. A., 643. 
 
 2 Attorney-General r. Munro, 2 DeG. and Sm., 163. 
 
 3 Neale v. Davis. 5 D. M. G., 258. 
 
 4 Newsome v. Flowers, 30 Beav., 461. 
 
TRUSTEE TO KEEP ACCOUNTS. 157 
 
 It may happen that there is no cestui que twist to LECTURE 
 claim the property, and no person to claim it through the VI - 
 settlor. According to English law, there is no escheat of a 
 
 trust in fee of lands, 1 and the trustee retains the estate ; 2 <' 
 and if a cestui que trust of chattels dies intestate without ''"*"' 
 next-of-kin, the trust-property goes to the Crown. 3 I am 
 not aware of any case in which the question has been 
 raised in this country. 4 
 
 It is the duty of trustees to afford to their cestuis que Trustee 
 trust ent accurate information of the disposition of the to kee P 
 trust-fund all the information of which they are, or ac 
 ought to be, in possession ; 5 and to keep clear and distinct 
 accounts of the property. 6 " It is the first duty of an 
 accounting party, whether an agent, a trustee, a receiver, 
 or an executor, for in this respect they all stand in the 
 same position, to be constantly ready with his accounts." 7 
 And if the trustees destroy books of account, very cogent 
 reasons must be given to satisfy the Court that the destruc- 
 tion was proper or justifiable. 8 In the case of a trust for 
 sale, the cestuis que trustent have a right to say to their 
 trustees " What estates have you sold ? What debts have 
 you paid ? And those who claim under them have the 
 same right." 9 
 
 If a trustee chooses to mix his accounts with those of 
 his own trading concern, he cannot thereby protect him- 
 self from producing the original books in which any part 
 of those accounts may be inserted. 10 
 
 If a trustee adopts and sanctions improper accounts 
 by his co-trustee, he will be liable for any default. 11 
 
 A legatee has a clear right to have a satisfactory ex- 
 planation of the state of the testator's assets, and an 
 
 1 Burgess v. Wheate, 1 Eden. 176. 
 
 2 Taylor v. Haygarth, 14 Sim., 16 ; Da vail . The New River Co., 
 3 DeG. and Sm.. 394 : Cox v. Parker, 22 Beav., 168. 
 
 3 See Lewin, 7th Edn., 262. 
 
 4 As to escheat, see Mayne's Hindu Law, ss. 504. 505. 
 
 5 Walker v. Symmonds. 3 Swanst., 58, per Lord Eldon. 
 
 6 Freeman r. Fairlie, 3 Mer., 43. 
 
 7 Pearse v. Green, 1 Jac. and W., HO, per Sir Thomas Plnmer. M. R. : 
 see also White v. Jackson. 15 Beav., 191 ; Ganendra Mohan Tagore r. 
 Upendra Mohan Tagore, 4 B. L. R., 0. C., 207. 
 
 8 Gray v. Haig. 20 Beav., 219. 
 
 9 Clarke v. The Earl of Ormonde, Jac., 120. 
 Freeman v. Fairlie. 3 Mer.. 43. 
 
 11 Hortoii v. Brocklehurst. 29 Beav.. 504. 
 
158 LIABILITY OF KARTA TO ACCOUNT. 
 
 LECTURE inspection of the accounts, but he is not entitled to a copy 
 VI - at the expense of the estate. 1 
 
 Vouchers. When all the matters relating to the trust have been 
 finally settled, the trustees are entitled to the possession 
 of the vouchers, as their discharge to the cestuis que trust- 
 ent, who, however, will have a right to inspect them, and 
 to take copies at their own expense. 2 
 
 Costa. If the inability or refusal of the trustees to account 
 
 renders a suit necessary, they must pay the costs of it. 3 
 The matter of costs, however, is within the jurisdiction 
 of the Court ; and if there has been no actual misconduct, 
 the Court may limit the payment of costs to the period 
 of bringing the action or of the hearing, or otherwise 
 according to the circumstances of the case. 4 
 
 Good faith. In taking accounts against a trustee when he is to be 
 fixed with a pei'sonal liability, his good faith is to be 
 considered, and every fair allowance is to be made in his 
 favour, especially if the demand against him is one which 
 arose many years previously, and the cestui que trust was 
 at the time cognizant of all the matters connected with it. 5 
 
 Managing j mav h ere re f er to the question whether the managing 
 
 Himiu^ member of a joint Hindu family can be sued for an account. 
 
 family. The decisions on this point were conflicting ; but in the Full 
 Bench case of Abhaya Chandra Roy Chowdhry v. Pyari 
 Mohan Guho? the question was decided in the affirmative. 
 Couch, C. J., said: "The members of a joint Hindu 
 family are entitled to the family property, subject to such 
 dispositions of it as the managing member is entitled 
 to make, either by virtue of the power which is given 
 him by law as manager, or of the powers that may be 
 given to him by the consent of the other members of the 
 family. Subject to the exercise of these powers, and to 
 any disposition of any portion of the family property 
 which may have been made by virtue of them, the other 
 members of the family are clearly interested in that 
 property. It appears to me, that the principle upon which 
 the right to call for an account rests, is not, as has been 
 
 1 Ottley v. Gilbey, 8 Beav., 602. 2 Clarke v. Ormonde, Jac., 120. 
 
 3 Pearse v. Green, 1 Jac. and W., 135; Newton v. Askew, 11 Beav., 145. 
 
 4 Springett v. Dashwood, 2 Giff.. 521 ; Ottley v. Gilbey. 8 Beav., 602 ; 
 Thompson v. Clive, 11 Beav., 475 ; White v. Jackson, 15 Beav., 191 ; Payne 
 v. Evens. L. R., 18 Eq., 362. 
 
 5 M'Donellf. White, 11 H. L. Cas.. 570 : and see Payne v. Evens. L. R., 
 18 Eq., 362. 6 5 B. L. R., 3i7. 
 
LIABILITY OF KARTA TO ACCOUNT. 159 
 
 supposed, the existence of a direct agency or of a partner- LECTUKK 
 ship, where the managing partner may be considered as the VI - 
 
 agent for his copartners. It depends upon the right which 
 
 the members of a joiut Hindu family have to a share of the 
 property ; and where there is a joint interest in the property, 
 and one party receives all the profits, he is bound to ac- 
 count to the other parties, who have an interest in it, for 
 the profits of their respective shares, after making such 
 deductions as he may have the right to make. That ap- 
 pears to me to be the right principle, and it is the principle 
 upon which the English Courts of Equity act in the case 
 of joint tenants, and tenants in common, and not merely 
 in cases of partners." And Phear, J., said : "Every man, be 
 he karta of a joint Hindu family or not, who manages 
 the property of another person, or property in which another 
 person is beneficially interested, upon the foundation of a 
 trust or confidence between the two, is, in a Court of 
 Equity and Good Conscience, accountable to the latter for 
 the mode in which he does manage 'it, and for the profits 
 which he may have made out of it. The principle upon 
 which I understand the English Courts of Equity to act 
 upon in those matters is simply this, that a person who 
 has the control of, and management of, another's property 
 upon the footing of anything which amounts to a confi- 
 dence or trust reposed in him by that other, shall not be 
 allowed to abuse that confidence, and to make a profit out 
 of his management, without the owner's consent ; and 
 inasmuch as the question whether or not a profit has been 
 made, or what has been done, lies, under these circum- 
 stances, solely within the knowledge of the manager himself, 
 a Court of Equity will make him disclose what he has done, 
 in other words, will make him account for his administra- 
 tion of the property. It is the necessity for disco veiy, as 
 the English lawyers term it, in order to protect the actual 
 owner's right and interest which founds the jurisdiction 
 of the English Courts of Equity in cases of this sort." 
 
 An individual member of a tarawad governed by the 
 Marumakkatayam rule has no right to an account from the 
 karanavan. 1 
 
 We have now to consider what are the duties of a trus- Duties of 
 tee with respect to the investment of trust-moneys. In a trustee as 
 
 A to invest- 
 
 ment. 
 1 Kunigaratu v. Arranganden, 2 Mad. H. C., 12. 
 
160 DUTIES OF TRUSTEES AS TO INVESTMENT. 
 
 LECTURE properly drawn instrument creating a trust, express direc- 
 VL tions will always be found as to the securities upon which 
 the trustee is to invest the trust-funds, and the trustee is 
 bound to adhere strictly to the modes of investment pre- 
 scribed. If he does not do so, he commits a breach of trust, 
 and will be liable for any loss that may arise ; whereas, if 
 he invests in the manner directed by the instrument of 
 trust, he will not be liable in case of loss. But there are 
 other cases where the instrument creating the trust is of 
 an informal character, and does not contain any directions 
 as to investment. It is the duty of the trustee to make the 
 fund productive for the benefit of the persons interested, 
 and in order to do so he must invest it in some form of 
 security. And a trustee will not be justified in investing 
 upon any but Government securities. 1 The Court will 
 not allow property to be invested in public securities 
 which are not Government securities. 2 
 
 If a fund is properly invested, it is a clear breach of trust 
 for the trustees to convert it into money and invest the 
 proceeds in unauthorized securities. 3 
 
 Personal Trustees may not invest on personal security, 4 even though 
 security, larger interest may be gained, for such an investment is a 
 species of gaming ; 5 and it makes no difference that the 
 loan is on joint security. 6 A promissory note is evidence of 
 a debt; but it cannot be considered as a security for 
 money. 7 The rule, that a trustee may not invest oil per- 
 sonal security, is one that " should be rung in the ears of 
 every person who acts in the character of trustee, for such 
 an act may very probably be done with the best and most 
 honest intention, yet no rule in a Court of Equity is so 
 well established as this." 8 
 
 And trustees leaving money outstanding on personal secu- 
 rity in which the testator himself had invested, will be 
 liable for any loss, unless they can show that an attempt 
 to recover the money would have been fruitless. 9 
 
 1 See DeSouza v. DeSouza, 12 Bom., 190. 
 
 2 Sampayo v. Gould. 12 Sim., 435. 
 
 3 Kellaway v. Johnson, 5 Beav., 319. 
 
 4 Walker v. Symonds, 3 Swanst., 63 ; Clough v. Bond, 3 M. & Or., 496 ; 
 Watts v. Girdlestone, 6 Beav., 188 ; Graves v. Strahan, 8 D. M. G., 291. 
 
 5 Adye v. Feuilleteau. 1 Cox, 25. 
 
 6 Holmes v. Dring, 2 Cox, 1. 
 
 7 Ryder v. Bickerton, 3 Swanst., 81 (/i), per Lord Hardwicke. 
 
 8 Holmes v. Bring. 2 Cox, 1 per Lord Kenyon. 
 
 9 Styles v. Guy, 1 Mac. & G., 422. 
 
WHEN PERSONAL SECURITY ALLOWED. 
 
 Investments in the stock or shares of any private com- LECTURE 
 pany are not justifiable without express authority, and VI - 
 the trustees will be liable for loss if the company fails or shaTeTin 
 the shares become depreciated. 1 companies. 
 
 Trustees do not commit a breach of trust by lending where P er- 
 out the trust-fund on personal security, if the instrument 80nal 8ecu - 
 creating the trust expressly authorizes such a mode of ed. y allow ~ 
 investment. 2 But a power to place out the trust-fund 
 at the trustees' discretion, will not justify an investment 
 on such security. 3 So a power to invest upon such security 
 as to the trustees seems expedient, 4 or on the " best and 
 most sufficient security," 5 or " on good private securities," 6 
 will not justify investments on personal security. Nor 
 will a trust to place the trust-fund " out to interest or 
 other way of improvement " authorize an investment in 
 trade. 7 And a trust to invest at " the discretion of the 
 trustees" will not justify them in investing in securities of 
 foreign states, even though the testator approved of such 
 investments. 8 Where the trustees of a sum of money for 
 A for life, remainder for her children, were authorized by 
 the settlement to lend the trust-fund upon such real or 
 personal security as should be thought good and sufficient, 
 and the trustees lent it to a person in trade whom A had 
 married, and the money was lost, they were made respon- 
 sible for the amount. Sir W. Grant, M. R, said : " The 
 authority did not extend to an accommodation ; it was 
 evident the trustees had, upon the marriage, been induced 
 to accommodate the husband with the sum which they had 
 no power to do. 9 " 
 
 Where trustees of a marriage settlement were authorized, 
 with the consent of the husband and wife, to invest the 
 funds on such security, " either real or personal," as they, 
 with such consent, should think proper, and at the date of 
 
 1 Trafford v. Boehm. 3 Atk., 439 : see as to investment on shares, 
 Lewin, 7th Edn.. 293295. 
 
 2 Forbes v. Ross, 2 Bro. C. C., 430 ; Paddon v. Richardson, 7 D. M. Q., 
 563. 
 
 3 Pocock v. Reddington, 5 Ves., 794 ; Bethell v. Abraham, L. R., 
 17 Eq., 24. 
 
 4 Attorney-General v. Higham, 2 Y & C. C. C., 634. 
 
 5 Mills v. Osborne, 7 Sim., 30. 
 
 8 Westover v. Chapman, 1 Coll., 177. 
 
 7 Cock. Goodfellow, 10 Mod., 489. 
 
 8 Bethell v. Abraham. L. R.. 17 Eq., 24. 
 
 * Lewiii, 7th Edn., 291. citing Langston v. Ollivant. G. Coop., 33: 
 see also Boss r. Godsall, 1 Y. and C. C. C., 617. 
 
162 VARYING SECURITIES. 
 
 LECTURE the marriage, part of the trust-funds were outstanding on 
 ^ the security of the husband's note-of-hand, the Court 
 allowed the investment to be continued on the husband 
 executing a bond to the trustees for the amount of the loan. 1 
 Onecestui Trustees must not invest in such a manner as to benefit 
 que trust one O r more of the cestuis que trustent without having re- 
 benefited at g^'d to the interests of the others. If they do so, and any 
 expense of loss results, they will be liable. 2 Even where the written 
 ers ' consent of the tenant-for-life is required to a change of in- 
 vestment, the trustees are bound, if the fund is improperly 
 invested, to re-invest it so as to protect the interests of the 
 remainder men, although the tenant-for-life objects to the 
 re-investment. 3 
 
 Consent of Where the instrument of trust contains a power of in- 
 frfJtoiTto vestment, but requires the consent of any of the cestuis que 
 change. trustent or of the trustees, to the investment or to a change 
 of securities, all the conditions of the power must be strict- 
 ly followed. If, however, the terms of the power have not 
 been complied with, a cestui que trust, who is sui juris, and 
 who has acquiesced in the investment, cannot afterwards 
 make any complaint. 4 
 
 So if the power authorizes an advance to three on a joint 
 interest, an advance to two is not justifiable. 5 
 
 Continuing In some cases trustees may continue existing invest- 
 investment me nts, but they should be careful to see that the securities 
 
 are good. 6 
 
 Varying " Trustees may, as they generally are, be expressly em- 
 secumies. powered to invest on real as well as Government securities, 
 and where this is the case, and there is a power to vary 
 securities, the trustees may safely sell out Government 
 securities, and invest the proceeds on a mortgage ; for, in 
 this case, although the tenant-for-life may obtain a higher 
 rate of interest, yet no injury is done to the remainder 
 man, as the capital is a constant quantity, and if the tenant- 
 for-life live long enough, he himself will have the benefit. 
 A notion is sometimes entertained that where the stock 
 
 1 Pickard r. Anderson. L. B , 13 Eq., 608. 
 
 Raby r. Ridehalgh. 7 Bear., 109, per Turner, L. J.: Stuart r. Stuart, 
 3 Beav.. 430. 
 
 1 Harrison v. Thexton, 4 Jur., N. S.. 550. 
 
 See Lewin, 7th Edn.. 292. 
 
 s Fowler v Reynal, 3 Mac. and G.. 500. 
 
 6 Arnould r. Grinstead. W. N., 1X72, p. 216 : Angerstein . Martin, T. 
 and R., 239 ; Ames r. Parkinson, 7 Beav., 379. 
 
CONSENT OF COURT TO INVESTMENT. 163 
 
 has become depreciated since the original purchase of it by LECTURE 
 the trustees, the trustees cannot sell out the stock and lend VI - 
 the money on mortgage without being answerable for the 
 difference between the bought and the sale price. But there 
 is no ground for this apprehension, for if the trust autho- 
 rize the purchase of stock at all, the trustees cannot be 
 wrong in dealing witli it at the market-price of the day. 
 
 No doubt if there were a sudden fall under peculiar cir- 
 cumstances, the trustees should not, without good reason, 
 sell out at the very moment of casual depreciation ; but if 
 the power be bond fide exercised, the mere fact of a depre- 
 ciation below the bought price cannot per se constitute 
 a In-each of duty." 1 
 
 Where trustees are empowered to invest on mortgage, investment 
 they should not, in the case of land, invest more than two- r r niort ~ 
 thirds of the actual value of the estate ; in the case of gage ' 
 houses, not more than one-half. And they should not invest 
 in leaseholds under any circumstances, as these are wasting 
 securities. Nor should they, under any circumstances, in- 
 vest on the security of a second mortgage. 2 
 
 Trustees empowered to lend the trust-funds on mort- Trustees 
 gage may not lend to one of themselves. The reason is, j" a ^ not 
 that there is the possibility of a conflict between the themselves 
 trustees' duty and interest, and the cestuis que trustent are 
 entitled to have the impartial judgment of all the trustees 
 as to the sufficiency of the security. 3 
 
 Trustees must be careful, when they advance money on Payingover 
 mortgage, not to pay over the money to the mortgagor 
 un til the security is ready, for in case of loss by fraud they 
 will be personally liable. 4 
 
 The Court will not, so long as an estate remains to be 
 administered in it, allow a purchase, or a mortgage, or any vestment, 
 other investment to be made, unless the Court is satisfied 
 of its safety. The reason is, that the Court has to protect 
 the property for all claimants, and even where the trustees 
 have an undisputed power to make a purchase, or to make 
 a mortgage, a reference is usually made to ascertain the 
 propriety of the investment in all respects. 5 
 
 1 Lewin. 7th Ed.. 296. 
 
 2 See further as to investment. Lewin, 7th Ed., Ch. XIV. 
 
 Stickney v. Sewell. 1 M. and Cr. 8 ; r. Walker, 5 Russ., 7 ; 
 
 Francis r. Francis, 5 D. M. G., 108 ; Fletcher v. Green, 33 Beav.. 426. 
 
 4 Rowland v. Witherden. 3 Mac. and G., 568 ; Hanbury r. Kirkland, 
 Sim.. 265 ; Broadhurst r. Balguy, 1 Y. and C. C. C., 16. 
 
 * Bethell v. Abraham, L. R., 17 Eq., 27, per Jessel, M. R. 
 
164 TRUSTEE'S AND MORTGAGEE'S ACT. 
 
 LECTURE In England, the duties of trustees as to investment are 
 
 VI - defined by various Statutes. 1 In cases " to which English 
 
 Trustee's law is applicable " 2 in this country, the Trustee's and Mort- 
 
 ami Mort- g a g ee ' s Powers Act 3 provides (s. 5), that where trust-pro- 
 
 fvwers P er ty is sold under a power-of-sale, the money received 
 
 Acts. " shall be laid out in the manner indicated in that behalf in 
 
 the will, deed, or instrument containing the power-of-sale ; 
 
 and until the money to be received upon any sale as afore- 
 
 said shall be so disposed of, the same shall be invested at 
 
 interest in Government securities for the benefit of such 
 
 persons as would be entitled to the benefit of the money, 
 
 and the interest and profits thereof, in case such money 
 
 were then actually laid out as aforesaid : provided that if 
 
 the will, deed, or instrument shall contain no such 
 
 indication, the persons empowered to sell as aforesaid 
 
 shall invest the money so received upon any such sale 
 
 in their names upon Government securities in India, 
 
 and the interest of such securities shall be paid and 
 
 applied to such person or persons for such purposes 
 
 and in such manner as the rents and profits of the pro- 
 
 perty sold as aforesaid would have been payable or appli- 
 
 cable in case such sale had not been made." And s. 32 
 
 provides that, " trustees having trust-money in their hands 
 
 which it is their duty to invest at interest, shall be at 
 
 liberty, at their discretion, to invest the same in any Gov- 
 
 ernment securities, and such trustees shall also be at 
 
 liberty, in their discretion, to call in any trust-funds in- 
 
 vested in any other securities than as aforesaid, and to 
 
 invest the same on any such securities as aforesaid, and 
 
 also from time to time, at their discretion, to vary any 
 
 such investments as aforesaid for others of the same 
 
 nature. Provided always, that no such original invest- 
 
 ment as aforesaid, and no such change of investment as 
 
 aforesaid, shall be made where there is a person under no 
 
 disability entitled in possession to receive the income of 
 
 the trust-fund for his life, or for a term of years determin- 
 
 ate with his life, or for any greater estate, without the 
 
 Official consent in writing of such person." The Official Trustee's 
 
 Trustee's Act 4 provides (s. 14) that "the Official Trustee shall cause 
 
 Actof 1S64, a jj ca p^al moneys received by him to be invested in 
 
 1 See Lewin, 7 Ed., 282288. 
 
 2 As to the meaning of these words, see ante. p. 15. 
 8 XXVIII of 1866. 
 
 * XVII of 1864. 
 
EEMEDT IX CASE OF NON-INVESTMENT. 165 
 
 Government securities, or otherwise as the Court shall LECTURE 
 direct : and if in any ease the trust-funds or any of them VI - 
 shall, at the time of their vesting in the Official ' 
 
 Trustee, be invested otherwise than as provided in the 
 deed or will creating the trust, or than as ordered by 
 the Court, it shall be the duty of the Official Trustee, as 
 soon as he reasonably can, to realize the funds so impro- 
 perly invested, and to invest the same in Government 
 securities or otherwise as the Court shall direct." 
 
 Where trustees are bound by the terms of their trust to Remedy in 
 invest the money in the public funds, and instead of doing caseofnon- 
 so, retain the money in their hands, the cestuis que trustent " 
 may elect to charge them, either with the amount of the 
 money and interest, or with the amount of the stock 
 which they might have purchased with the money. 1 The 
 doctrine of the Court, when it applies this rule, is, that the 
 trustee shall not benefit by his own wrong. If he had 
 done what he was bound to do, a certain amount of Gov- 
 ernment securities would have been forthcoming for the 
 cestuis que trustent. And therefore, if called upon to have 
 such securities forthcoming, lie is bound to do so ; just as, 
 in ordinary cases, every wrong-doer is bound to put the 
 party injured, so far as the nature of the case allows, in 
 the same situation in which he would have stood if the 
 wrong had not been done. 2 
 
 But the grounds on which the right of election in the 
 cestuis que tmstent rest, wholly fail in a case where a 
 trustee, having an option to invest in Government securi- 
 ties, or on the security of immoveable property, neglects 
 his duty and carelessly leaves the trust-funds in some 
 other state of investment. In such a case, the cestui que 
 trust cannot say to the trustee " If you had done your 
 duty, I should now have had a certain sum in Govern- 
 ment securities, or the trust-fund would now consist of a 
 certain amount of Government securities." It is obvious 
 that the trustee might have duly discharged his duty, and 
 yet no such result need have ensued. In such a case the trus- 
 tee is liable for the principal and interest only. " Where a 
 man is bound by covenants to do one of two things, and does 
 neither, there in an action by the covenautee, the measure 
 
 1 Shepherd r. Mouls. 4 Hare. 503 ; Byrchall v. Bradford, 6 Madd., 235 ; 
 Robinson i*. Robinson, 1 D. M. G.. 247. 
 
 2 Robinson r. Robinson 1 D. M. G., 256. 
 
16(5 REMEDY IX CASE OF XOX-IXYESTMEXT. 
 
 LECTURE of damage is in general the lo>< arising by reason of the 
 V 1 - covenantor having failed to do that which is least, not that 
 which is most, beneficial to the covenantee : and the same 
 principle may be applied by analogy to the case of a trustee 
 failing to invest in either of two modes equally lawful by 
 the terms of the trust. . . . The trustee is not called upon 
 to exercise an option retrospectively, but is made respon- 
 sible for not having exercised it at the proper time, for not 
 having made one of two several kinds of investment. And 
 a reason for his being in such a case chargeable only with 
 the money invested, and not with the Government securi- 
 ties which might have been purchased, is, that there never 
 was any right in the cestui que trust to compel the pur- 
 chase of Government securities. The trustee is answerable 
 for not having done what he was bound to do, and the 
 measure of his responsibility should be what the cestui que 
 trust must have been entitled to in whatever mode that 
 duty was performed." 1 In Raphael v. Boehm* Lord 
 Eldon said : " Where there is an express trust to make 
 improvement of the money, if the trustee will not honest- 
 ly endeavour to improve it, there is nothing wrong 
 in considering him as the principal to have lent it to 
 others, and as often as he ought to have received it 
 and lent it to others, if the demand be interest, and in- 
 terest upon interest." The case was re-argued before Lord 
 Erskine, who agreed with Lord Eldon ; 3 and Lord Eldon 
 subsequently expressed his opinion that his original judg- 
 ment was right. 4 Where a trustee who was directed to 
 invest the residue of his testator's estate in consols, and to 
 accumulate the dividends, invested it on mortgage of real 
 estate, he was held liable to make good the amount of 
 stock which would have been purchased in consols, to- 
 gether with the amount of accumulation which would have 
 been produced by a proper investment of the dividends 
 of such stock. 5 
 
 So an executor who neglects to pay debts, or who, after 
 paying debts and legacies, neglects to account for the 
 surplus, or an assignee who neglects to pay dividends, 
 will be liable to pay interest, 6 and it is no excuse that he 
 
 1 Robinson v. Robinson. 1 D. M. G.. 257. per Lord Cranworth, L. C. 
 8 11 Ves., 107. 13 Ves., 407. 
 
 4 13 Ves., 590: see also Dornford r. Dornford. 12 Ves., 127. 
 s Pride v. Fooks, 2 Beav., 430. See also Knot* r. Cottee. 16 Beav., 77 ; 
 Wilson c. Peake, 3 Jur., N. S., 155. See Lewin, Ch. XIV., a. 5. 
 
REMEDY IN CASE OF WRONGFUL INVESTMENT. 167 
 
 himself derived no benefit from the moneys in his hands. 1 LECTURE 
 Where, however, an executor in good faith retained a VI - 
 balance to which he thought himself entitled, he was 
 not charged with interest. 2 
 
 If trustees having power to invest on certain securities, Remedy 
 and to vary such investments from time to time, realize j| l r oj| 8 r f ll < j l 
 money properly invested, for the purpose of investing it i 
 in a security not warranted by the instrument of trust, the 
 cestui que trust has two remedies : First, he may compel 
 the trustees to restore the trust-fund to its original state. 
 The Court will not treat the sale as lawful, and the invest- 
 ment as unlawful, so as to satisfy the trust by replacing the 
 money, but the whole will be treated as one unjustifiable 
 transaction and the original security must be replaced, 
 that is to say, if the fund was originally invested in Govern- 
 ment securities, it will not be sufficient to refund the 
 money realized by the sale ; but an equivalent amount of 
 Government securities must be purchased 3 and the inter- 
 mediate dividends must be replaced ; 4 or, secondly, the cestui 
 que trust may require the trustees to account for the 
 money received on the sale with interest if that would be 
 most advantageous to him. 5 In England, the rate of 
 interest is 5 per cent. 6 In this country it would be at the 
 rate of 6 per cent., the Court rate of interest. When 
 trustees have committed a breach of trust by an improper 
 sale of the trust-fund, they are not discharged from the 
 consequences of the breach of trust by replacing the fund 
 in some security, not the security the sale of which con- 
 stituted the breach of trust. 7 In a case where the trustee 
 did not seek to make anything himself, but was honourably 
 unfortunate in having yielded to the importunity of one 
 of the cestuis que trustent, it was held that, although the 
 trustee was bound to replace the specific stock, the cestuis 
 
 1 See Lewin, Ch. XIV.. s. 5. 2 Bruere v. Pemberton. 12 Ves.. 386. 
 
 3 Phillipson v. Gatty, 7 Hare, 516 ; Norris v. Wright, 14 Beav., 304. 
 
 4 Davenport v. Staftord, 14 Beav., 335. 
 
 5 Bostock v. Blakeney, 2 Bro. C.C., 653; Etparte Shakeshaft, 3 Bro. C.C., 
 197 ; Raphael v. Boehm, 11 Ves.. 108 ; Harrison v. Harrison. 2 Atk., 121 ; 
 Bate v. Scales, 12 Ves.. 402 ; Phillipson . Gatty. 7 Hare, 516 ; Norris v. 
 Wright, 14 Beav., 305 ; Rowland v. Witherden, 3 Mac. and G., 568 ; 
 \Viglesworth v. Wiglesworth. 16 Beav., 269. 
 
 6 Crackelt v. Bethune, 1 Jac. and W.. 587 ; Moseley v. Ward. 11 Ves., 
 581 ; Pocock v Reddington. 5 Ves., 794; Piety v. Stace, 4 Ves., 620; 
 Jones f. Foxall, 15 Beav.. 392. 
 
 7 Lander v. Weston, 3 Drew., 394. 
 
168 
 
 TRUSTEE FOR SALE OR MORTGAGE. 
 
 mortgage. 
 
 LECTURE que trustent should not have the option of taking the pro- 
 
 VI - ceeds with interest. 1 
 
 insolvency ^ n ^ ne case ^ ^ ie insolvency of a trustee, the cestui que 
 of trustee, trust has the option of proving for the proceeds of the sale 
 with interest, or for the cost of the specific stock at the 
 time of the insolvency with the interim dividends. 2 
 
 Daties of Where the instrument of trust directs the trustees to raise 
 trustees money by the sale or mortgage of the trust-property, they 
 may act without the leave of the Court. 3 But if a suit 
 respecting the trust has been instituted, the trustees cannot 
 deal with the property without the leave of the Court, for 
 by the suit the execution of the trust is in the hands of 
 the Court. 4 " Private contracts, therefore, after the insti- 
 tution of a suit, can only be entered into by trustees 
 subject to the approbation of the Court, and a condition is 
 commonly annexed that the contract shall be null and void, 
 unless the sanction of the Court be obtained within a limit- 
 ed period. Cases have occurred where, from accidental cir- 
 cumstances, the sanction has not been obtained within 
 the time, and then by the death of the purchaser the 
 contract has dropped to the ground, and the representa- 
 tives of the purchaser have not felt themselves justified in 
 renewing it. The better mode would be, to give liberty to 
 the purchaser at any time after the expiration of a limited 
 period, but before any confirmation by the Court, to deter- 
 mine the contract." 5 
 
 A trustee for sale is bound to sell the trust-property to 
 e best advantage, and to use all reasonable diligence to 
 advantage, obtain a proper price. 6 If he is negligent in conducting the 
 sale, as by not advertising, 7 he will be personally liable 
 for any loss occasioned. All the trustees are equally liable, 
 and cannot escape responsibility, on the ground that the 
 conduct of the sale was delegated to one of their number. 8 
 If, however, a trustee enters into a contract for the sale of 
 trust-property, he is not bound to break off the contract in 
 
 1 Lewin, Ch. XIV., s. 4, citing O'Brien v. O'Brien, 1 Moll., 533. 
 
 2 Exparte Shakeshaft. 3 Bro. C. C., 197. 
 
 3 Earl of Bath v. Earl of Bradford, 2 Ves., 590. 
 
 4 Walker v. Smallwood, Amb., 676 ; Drayson v. Pocock, 4 Sim., 283. 
 s Lewin. 7th Edn.. 383. 
 
 Downes v. Grazebrook, 3 Mer., 208 ; Mathie v. Edwards, 2 Coll., 480 ; 
 Ord v. Noel, 5 Madd.. 438. 
 
 7 Ord v. Noel, 5 Madd., 438 ; Pechel v. Fowler, Anst., 549. 
 
 In re Chertsey Market, 6 Price, 285 : Oliver t-. Court, 8 Price, 166. 
 
 Trustee 
 
 best 
 
VALUATION. 169 
 
 order to sell to another person who makes a higher offer ; 1 LECTUBE 
 and when there are two offers, and it is not quite clear which ^ l 
 is the most advantageous, the trustee will not be liable for 
 refusing to accept the offer preferred by the cestui que trust. 2 
 
 The trustees must pay equal and fair attention to the Must at- 
 interests of all persons concerned. If they, or those who [erelt of 'all 
 act by their authority, fail in reasonable diligence, if they parties. 
 contract under circumstances of haste and improvidence, if 
 they make the sale with a view to advance the particular 
 purposes of one party interested in the execution of the trust 
 at the expense of another party a Court of Equity will not 
 enforce the specific performance of the contract, however fair 
 and justifiable the conduct of the purchaser may have been. 3 
 So, specific performance will not be enforced against trustees, 
 if they have entered into an agreement by mistake to sell 
 at an inadequate consideration ; 4 nor, where there has been 
 a substantial misdescription on their part, will specific 
 performance with compensation be enforced against them ; 5 
 and in no case will specific performance be granted if there 
 has been a breach of trust. 6 The sale of property at a 
 grossly inadequate value is a breach of trust which affects 
 the title in the hands of a purchaser. 7 
 
 " The usual course," said Lord Komilty, 8 " is, for cestuis 
 que trustent, who are the persons most interested in the 
 matter, and who have the strongest motive for obtaining the 
 highest possible price, to enter into a conditional contract 
 of sale, and then to obtain the assent of the trustee, who, 
 when he has satisfied himself that the sum proposed to be 
 given for it is the value of the property, ought to sanction 
 a sale which is beneficial for the persons for whom he is 
 trustee." This of course is only when the cestuis que 
 trustent are persons competent to contract. 
 
 The trustee before sanctioning a sale should have a Valuation, 
 valuation of the property made by some qualified person. 9 
 
 1 Goodwin v. Fielding, 4 D. M. G., 90 ; Harper v. Hayes, 2 DeG. F. and 
 J.. 542. 2 Selby c. Bowie, 4 Giff., 300. 
 
 * Ordr. Noel, 5 Madd., 440; Anon., 6 Madd., 11 ; Turner v. Harvey, 
 Jac.. 178 ; Mortlock v. Buller, 10 Ves., 292; Hill v. Buckley, 17 Ves., 394. 
 
 4 Bridger v. Rice. 1 Jac. and W., 74. 
 
 s White v. Cuddon, 8 C. and F., 766. 
 
 6 Wood . Richardson, 4 Beav., 176 ; Fuller r. Knight. 6 Beav., 205 ; 
 Thompson v. Blackstone, ib., 470; Sneesby v. Thome. 7 D. M. G., 399 ; 
 Eamlal Thakursidas v. Lakhmichand Muniram, 1 Bom. H. C., Appx., Ixii. 
 
 7 Stevens v. Austen, 7 Jur.. N. S., 873. 
 
 8 Palairet v. Carew. 32 Beav., 568. 
 
 9 Oliver r. Court, 8 Price. 165 ; Campbell r. Walker. 5 Ves., 630. 
 
 22 
 
170 
 
 SALE OR MORTGAGE. 
 
 LECTURE 
 VI. 
 
 Absolute 
 trust for 
 sale will 
 not 
 
 authorize 
 mortgage. 
 
 Trust to 
 mortgage 
 will not 
 authorize 
 sale. 
 
 Trust for 
 sale sur- 
 vives. 
 
 Trustees 
 bound to 
 make good 
 title. 
 
 Counsel's 
 opinion. 
 
 An absolute trust for sale, from which it appears that it 
 was the intention of the author of the trust that the pro- 
 perty should be converted, will not authorize the trustees 
 in mortgaging. 1 But where the trustees are authorized to 
 sell in order to raise money for a particular purpose, as 
 for instance, to pay debts, and it does not appear that it 
 was the intention of the author of the trust that the pro- 
 perty should be converted, the trustees may raise the 
 necessary money by means of a mortgage. 2 " Generally 
 speaking," said Lord St. Leonards, 3 " a power of sale, out- 
 and-out, for a purpose or with an object beyond the raising 
 of a particular charge, does not authorize a mortgage ; 
 but where it is for raising a particular charge, and the 
 estate itself is settled or devised subject to that charge, 
 there it may be proper, under the circumstances, to raise 
 the money by mortgage, and the Court will support it as a 
 conditional sale, as something within the power, and as a 
 proper mode of raising the money." 
 
 Conversely, a trust to raise money by way of mortgage 
 will not authorize a sale, and the Court will not, in such a 
 case, direct a sale, even though it clearly appears that a 
 sale would be more advantageous. 4 
 
 A trust for sale survives, and it is not necessary, where 
 one trustee has died before a contract has been entered into, 
 to go to the Court in order to carry the sale into effect. 5 
 
 Trustees are bound, like other persons, to make a good 
 title ; they may of course protect themselves by express 
 stipulations. 6 
 
 " It would be prudent before proceeding to the execu- 
 tion of the trust to take the opinion of counsel whether a 
 good title can be deduced. Should the contract for sale be 
 unconditional, and the title prove bad, the purchaser in a 
 suit for specific performance would have his costs against 
 the trustee, though the trustee, where his conduct was 
 excusable, might charge them upon the trust-estate under 
 the head of expenses." ' 
 
 1 Haldenby v. Spofforth, 1 Beav.. 390 ; Sbroughill v. Anstey. 1 D. 
 M. G., 635 ; Page v. Cooper, 16 Beav.. 396 : Devaynes v. Robinson. 24 
 Beav., 86. 2 Ball v. Harris. 4 M. & Cr., 264. 
 
 3 Stroughill v. Anstey, 1 D. M. G.. 645. 
 
 4 Drake r. Whitmore, 5 DeG. and Sin.. 619. See further as to powers 
 of sale. Lewin. 7th Edn., 392. 
 
 5 Lane v. Debenham, 11 Hare. 188 
 
 White r. Foljnmbe. 11 Ves.. 343 ; M'Donald v. Hanson, 12 Ves.. 277 
 ' Lewin, 7th Ed., 396. 
 
DUTIES OF TRUSTEES FOR PURCHASE. 171 
 
 After property has been sold under a power of sale, the LECTURE 
 trustee should not let the purchaser into possession until VI - 
 the whole amount of the purchase-money has been paid. 1 Pa ,!^ tof 
 The purchaser is not bound to pay the money to the purchase- 
 trustees personally; but payment to an authorized agent of money ' 
 the trustees will bind them, and discharge the purchaser. 2 
 
 It sometimes happens that trustees are directed to lay Duties of 
 out the trust-funds in the purchase of lands. Such a direc- truscees for 
 tion is not very common, and I only propose to deal with pl 
 this branch of the law very shortly. 
 
 The general rule is, that trustees for purchase, like all other 
 trustees, are bound to discharge the duty prescribed ; and 
 failing to do so are answerable for the consequences, as if a 
 specih'c fund be bequeathed to trustees upon trust to lay out 
 on a purchase, and they neglect to call in the fund and lay 
 it out, they are liable to compensate the cestui que trust for 
 the consequences. 3 The trustees must take care to have 
 the estate valued on their own behalf, and must not be con- 
 tent with the valuation of the vendor. 4 They must see 
 that a good title is shown, and will be justified in taking 
 legal advice. 5 If the trust-estate is in the hands of the 
 Court, the trustees can only contract subject to the approval 
 of the Court, which will direct an inquiry as to whether the 
 purchase is beneficial, and if so, whether a good title can be 
 made. 6 Trustees having a trust or power to purchase must 
 exercise a joint discretion as to the propriety of the purchase, 
 and therefore, as no man can be a judge in his own case, they 
 are precluded from buying from one of themselves. If such 
 a purchase be really desirable, it might be carried out by a 
 friendly suit for obtaining the sanction of the Court. 7 
 
 The trustees, where the money is not under administration 
 by the Court, need not disclose the trust to the vendor either 
 in the contract or in the conveyance. If they do so, it will 
 embarrass the vendor by obliging him to see that the pur- 
 chase-money is properly applied in pursuance of the trust. 8 
 
 1 Oliver r. Court, S Price. 166 ; Browell v. Reed, 1 Hare, 434. As to the 
 conveyance and covenants. &c.. see Lewin. 7th Edn., 401 406. 
 
 2 Hope r. Liddell. 21 Beav.. 183 ; Robertson v. Armstrong. 28 Beav., 
 123 : and see IH re Fryer. 3 K. and J., 317 ; Viney v. Chaplin, 2 DeG. 
 and J., 468 ; West v. Jones. 1 Sim., N. S., 205 
 
 3 Lewin, 7th Edn., citing Craven v. Craddock, W. N., 1868, p: 229. 
 1 Ingle r. Partridge. 34 Beav., 4 1 2. 
 
 s Eastern Counties Railway Co. r. Hawkes. 5 H. L. Gas., 363. 
 Bethell v. Abraham, L. R. 17 Eq.. 27: Ex parte The Governors of 
 Christ's Hospital. 2 H and M., 166. 
 
 7 Lewin, 7th Ed., 455. s Ibid, 457. 
 
LECTURE VII. 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 Time within which sale of trust-property to be made Discretion to be exer- 
 cised Conveyance of trust-property to cestuis que iruste.nl Distribution of 
 the trust-fund Derivative title Payment after death of cestui que trust 
 Appointment of trustee to assist in distributing Presumption of deatli 
 Rebuttal of presumption Release Liability for payment to wrong per- 
 sons Costs Interest Bond of indemnity Authority from cestui que 
 trust to receive the money Payment on written authority Payment to 
 persons under disability Partners Payment to single trustee Overpay- 
 ment Refund to executor Payment when debt from testator subsisting 
 Liability of trustee for breach of trust Trustee liable though he has not 
 benefited Extent of liability Trustee about to abscond Criminal breach 
 of trust Liability of professional adviser Partner Loss by accident 
 Neglect to obey directions in instrument of trust To pay premiums Sale 
 to purchaser for valuable consideration without notice Agent Barnes v. 
 Addy Limitation Wilful default Concurrence Fraud by trustees 
 By cestui que trutt Acquiescence Delay Release and confirmation No 
 set-off in respect of breach of trust Liability for breach of trust by prede- 
 cessor or co-trustees Trustee joining in receipt for conformity Trustees 
 giving receipt bound to see to investment Walker v. Symonds Trustee 
 joining in act for convenience Executor joining in receipt for conformity 
 Executor must ascertain that money required Executor not liable as 
 such for act of co-executor Styles v. Guy Liability under decree for 
 common account Unnecessarily handing over assets Restraining intended 
 breach of trust Several liability of co-trustees Limitation of liability 
 Contribution Impounding fund in Court Costs Trustee paying under 
 power-of-attorney Payment without notice of transfer Indemnity -clause. 
 
 Time WHERE the instrument creating the trust contains a 
 
 W1 ^ m . direction to the trustees to sell and convert the trust-pro- 
 of trust- perty, the trustees will be allowed a reasonable time within 
 property to w hich to effect the sale, even though the direction is to 
 convert "with all convenient speed." "A direction to 
 convert with all convenient speed," said Sir C. C. Pepys, 
 M. R., 1 " is no more than the ordinary duty implied in the 
 office of an executor, and there must necessarily be some 
 discretion. If a reasonable discretion were to be denied 
 to an executor, if it were to be laid down as an inflexible 
 
 1 Buxton r Buxton, 1 M. and Cr.. 8C, 93. 
 
TIME FOK SELLING. 173 
 
 rule that he ought to convert the assets without waiting LECTURE 
 or considering how far it was for the interest of those who VIL 
 are beneficially entitled, there would of necessity be always 
 an immediate sale ; the executor would be bound to sell at 
 whatever loss. Such a rule would be in its operation most 
 injurious, and it has never been acted upon by the Court, 
 which, in cases of this kind, has always considered what 
 is for the interest of the parties concerned." 1 
 
 It is impossible to fix a particular period within which Discretion 
 an executor should convert his testator's property, but a t( ? 6 j exer " 
 reasonable discretion must be allowed to the trustees, and C ' 
 whether they have exercised such a discretion must de- 
 pend on the facts. 2 " You cannot," said Sir J. Romilly, 
 M. R., 3 " fix one period for selling every species of property. 
 Thus, suppose the testator possessed a large quantity of 
 horses, it would be culpable to keep them at a great ex- 
 pense, incurring necessarily a great outlay for their main- 
 tenance, instead of selling them at once. But with respect 
 to other property, there must be a reasonable time allowed 
 for selling it." The usual time is twelve months. 4 In 
 one case two months were held to be a reasonable time 
 within which to break up a testator's establishment. 5 
 And where executors sold the stock-in-trade and good-will of 
 a business three weeks after their testator's death, though 
 against the wish of the cestui que trust, and though there 
 was evidence that a better price might have been obtained, 
 they were held not responsible, as they had acted hon- 
 estly. 6 There is no fixed rule that conversion must take 
 place by the end of the year, but that is the primd facie 
 rule, and executors who do not convert by that time, must 
 show some reason why they did not do so. 7 
 
 But if the trustees have acted bond fide, and according 
 to the best of their judgment, and it appears that a sale 
 within twelve months must have resulted in a loss, they 
 will not be liable. 8 Trustees will, however, be liable for loss 
 
 1 Parry r. Warrington. 6 JIadd.. 155. 
 
 2 Buxton T. Buxton, 1 My. and Cr., 93. 
 
 3 Hughes v. Einpson, 22 Beav., 183. 
 
 4 See DeSouza v. DeSouza, 12 Bom.. 190 : Parry v. Warrington, 
 6 Madd.. 155 ; Vickers v. Scott. 3 M. and K., 500 ; Fitzgerald v. Jerroiae, 
 5 Madd.. 25. See Act V of 1881. s. 117. 
 
 5 Field v. Peckett (No. 2). 29 Beav.. 576. 
 
 " Selby . Bowie. 4 Giff., 300 ; afifd.. 9 Jur.. X. S.. 42:.. 
 
 7 Grayburn r. Clarkson. L. R., 3 Ch., 606. 
 
 9 Garrett r. Noble, 6 Sim., 504 ; Buxton r. Buxton, 1 M. atid Cr., 80. 
 
174 TIME FOR SI;LU.\<; 
 
 LEG-TUBE caused by any improper delay. 1 Where trustees delayed 
 vn - selling for twenty-five years, they were held to be liable ; 2 
 and persons who deal with trustees selling at a considerable 
 distance of time, are under an obligation to enquire and see 
 that no breach of trust is being committed. 3 A trust to sell 
 " at such time and in such manner" as the trustees think fit, 
 will not justify the trustees in arbitrarily postponing the 
 sale to an indefinite period, so as to place the tenant-for- 
 life and those in remainder in a totally different relative 
 situation from that in which they would have been had the 
 sale been made with reasonable diligence. 4 Where property 
 was devised to trustees upon trust with all convenient 
 expedition, and within five years after the testator's death 
 absolutely to sell and convey the premises, it was held, that 
 the trustees could make a good title upon a sale after the 
 expiration of that period. " There is nothing," said Turner, 
 V. C., " in the will importing a negative on a sale being 
 effected by the trustees after the expiration of five years. 
 If there had been a provision negativing any sale by the 
 trustees after that period, there might have been a suffi- 
 cient ground for this Court refusing to interpose to en- 
 force specific performance of the agreement. The question 
 is, whether it is to be collected from the will that the 
 sale, which must at any rate be effected notwithstanding 
 the lapse of the five years, may not after that time be 
 made by the trustees, or whether it must then be made 
 under the direction of the Court of Chancery by the Act 
 of the Court. I cannot impute the latter intention to the 
 testator. ... I think the expression of the will as 
 to the five years is only directory to the trustees, that they 
 might make the payments out of the trust-funds within 
 that time, if possible." 5 The onus is on the trustees to 
 show that the interests of the cestuis que trustent have 
 not been injuriously affected by the delay. 6 
 
 Where a testator left money invested in speculative 
 securities, and the executors waited for twelve mouths, by 
 which time the market had fallen, and they, hoping the 
 
 1 Pattendent- Hobson, 22 L. J., Ch.. 697; Cuff v. Hall, 1 Jur., N. S., 
 972; Devaynes v. Robinson. 24 Beav., 86. 
 
 2 Fry r. Fry, 27 Beav.. 144. 
 
 3 Stroughill v. Anstey. 1 D. M. G., 635. 
 
 4 Walker v. Shore, 19 Ves.,391 : see Wilkinson r. Duncan, 23 Beav., 469. 
 
 5 Pearce v. Gardner. 10 Hare. 287. 291 : and see Cuff v. Hall, 1 Jar., 
 K. S., 972 ; De La Salle r. Moorat. L. R., 11 Eq., 8. 
 
 Cuff r. Hall. 1 Jur., N. S., 972. 
 
CONVEYANCE TO CESTUIS QUE TRUSTENT. 175 
 
 market would rise, delayed the sale, and a loss ensued, it LECTURE 
 was held, that they ought not to be made liable. "The VIL 
 executors," said James, L. J., " acted with no view of ob- 
 taining any benefit to themselves ; they appear to have 
 acted honestly with a view to what they thought beneficial 
 to everybody interested. In the honest exercise of their 
 discretion they thought it more prudent to wait for a rise, 
 and we think they ought not to suffer because it turns 
 out that they committed an error of judgment. It would 
 be very hard upon executors, who have been saddled with 
 property of this speculative kind and have endeavoured 
 to do their duty honestly, if they were to be fixed with 
 a loss arising from their not having taken what, as it 
 proved by the result, would have been the best course." 1 
 
 If a testator gives an absolute discretion to his exe- 
 cutors to postpone the sale and conversion of his estate, 
 they are not bound by the ordinary rule to convert the 
 property within a year, even though some of it consists 
 of shares in an unlimited company. And they will not, 
 in the absence of mala fides, be liable for loss arising to 
 the estate from non-conversion. 2 
 
 If the instrument creating the trust does not contain 
 any special direction as to sale, it is not usual for the 
 trustees to sell except upon the request of some one or more 
 of their cestuis que trustent, or under circumstances which 
 render a sale necessary or expedient, or unless the pro- 
 perty is not of a permanent character. 3 
 
 When the duties of trustees are at an end, they must Convev- 
 convey the trust-property to their cestuis que trustent t" u s e t of to . 
 upon its being clearly and satisfactorily proved to them pe rty to 
 that their duties are at an end, unless they have notice of 
 any disposition or incumbrance made by the cestuis que 
 trustent or any of them. 4 
 
 When a trustee is called upon to distribute the trust- 
 fund, he has a right to know the title of those who claim trust-fuud. 
 to be cestuis que trustent. 5 And the necessity of seeing 
 that the trust-money reaches the proper hand is obliga- 
 tory, not only on trustees regularly invested with the 
 
 1 Marsden v. Kent. L. R., 5 Ch. Div., 600 : and see Sculthorpe v. 
 Tipper, L. R-, 13 Eq., 232 ; Turner v. Buck, L. R., 18 Eq., 301. 
 
 2 In re Norrington Brindley v. Partridge, L. R., 13 Ch. Div., 654. 
 
 3 See Dart V. and P.. oth Edn., 59. 
 
 4 Frederick v. Hartwell, 1 Cox. 193 ; Holford f. Phipps. 3 Bear., 440. 
 4 Hurst r. Hurst. L. R., 9 Ch., 762. 
 
17G DISTRIBUTION OF TRUST-FUND. 
 
 LECTURE character, but on all persons having notice of the equities, 
 as if A lend a sum to B, and B afterwards discovers that it 
 is trust-money, he cannot pay it back to A, unless A, as 
 trustee, has a power of signing a receipt for it. 1 
 Derivative It occasionally happens that other persons than the 
 original cestuis que trustent may come to have an interest 
 in the trust-property, and questions arise as to how far the 
 trustees are liable if they part with the trust-fund with- 
 out noticing the persons who have subsequently acquired 
 an interest in it. For instance, the instrument creat- 
 ing the trust may give A a life-interest, with a power of 
 appointment among his children. Here the trustees must 
 be careful to ascertain whether any appointment has been 
 made, and who are the persons entitled under it. So if they 
 have notice of an incumbrance having been created by a 
 cestui que trust, they must ascertain whether it is still 
 subsisting, otherwise they will be liable if they pay to the 
 original cestui que trust? New trustees are not bound to 
 make any enquiries of the old trustee as to incum- 
 brances. 3 
 
 Pavment Upon the death of a cestui que trust, the trustee must 
 after death on ly pay to the person duly authorized by law to give 
 qw fnut. receipts for property belonging to the cestui que trust. He 
 has nothing to do with any disputes as to the persons ulti- 
 mately entitled, and if he mixes himself up with such dis- 
 putes and refuses to pay over the trust-fund to the person 
 entitled to demand it, he will be liable for the costs of a 
 suit to recover it. 4 
 
 Appoint- If a surviving trustee be placed in an embarrassing 
 ment of situation as regards the distribution or management of the 
 aMistln fund, it is said that he has a right to ask for the appoint- 
 distribut- ment of a new trustee to assist him by his counsel. 5 
 
 According to English law, if a person has not been heard 
 
 tion S oi" P ~ of for seven years, there is a presumption of law that he is 
 
 death, dead ; but at what time within that period he died is not 
 
 a matter of presumption but of evidence, and the onus of 
 
 proving that the death took place at any particular time 
 
 within the seven years, lies upon the person who claims a 
 
 1 Lewin. 7th Edn., 316, citing Sheridan v. Joyce. 7 Ir. Eq. Rep., 115. 
 
 2 Cothay r. Sydenham. 2 Bro. C. C., 391 ; Leslie v. Baillie, 2 Y. and 
 C. C. C., 91 ; Cresswell v. Dewell, 4 Giff.. 460. 
 
 3 Phipps v. Lovegrove. L. R.. 16 Eq., 80. 
 
 4 Smith r. Bolden, 33 Beav.. 262. 
 
 5 Lewin, 7th Edn., 317, citing Livesay r. O'Hara, 14 Ir. Ch. Rep.. 12. 
 
DISTRIBUTION OF TRUST-FUND. 177 
 
 right, to the establishment of which that fact is essential. 1 LECTUBB 
 According to Hindu law, there must be a lapse of twelve vn - 
 years before death will be presumed. 2 
 
 The presumption does not arise when the probability Rebuttal 
 of intelligence is rebutted by circumstances. 3 Should the of P re : 
 person afterwards re-appear in fact, he may assert his 8U 
 right. 4 And therefore, if the trust-fund is in Court and 
 it is paid out to a claimant, he must give security to re- 
 fund in such a case. 5 A trustee should, therefore, either 
 accumulate the fund until death is proved, or else require 
 an indemnity from the person to whom he pays. 
 
 When a trustee or executor hands over the trust-funds Release, 
 to a cestui que trust, it is usual to obtain a receipt or ac- 
 knowledgment in full discharge of all claims. But such a 
 receipt only discharges in respect of those claims which 
 were actually known, and if given in ignorance of the real 
 facts, will not affect the right of the cestui que trust. 6 
 
 If a trustee, executor, or administrator pays over the trust- Liability 
 fund to persons who are not properly entitled to it, he will, for P a ?- 
 as a general rule, be liable to those persons who can prove wrong per- 
 their title to it, even though he has acted honestly and SODSt 
 circumspectly, and has been misled by his legal advisers. 
 " I have no doubt," said Lord Redesdale, 7 " that the trustees 
 meant to act fairly and honestly ; but they were misadvised ; 
 and the Court must proceed, not upon the improper advice 
 under which an executor may have acted, but upon the 
 acts which he has done. If under the best advice he could 
 procure he acts wrong, it is his misfortune; but public 
 policy requires that he should be the person to suffer." 8 
 But ignorance of facts may, under certain circumstances, 
 excuse the trustees. 9 
 
 1 In re Phene's Trusts, L. R., 5 Ch., 139 : and see Nepean v. Doe, 2 M. 
 and W., 894 ; Dunn r. Snowden, 2 Dr. and Sm., 201 ; Lamb v. Orton, 
 6 Jur., N. S., 61 ; Sillick v. Booth. 1 Y. and C. C. C., 117 ; Hickman r. Upsall, 
 L. R./20 Eq., 136. Act I of 1872, ss. 107, 108. 
 
 2 Janmajay Mazumdar v. Keshab Lai. 2 B. L. R , A. C., 134; Sarada 
 Sundari Debi r. Gobind Hani, ib., 137 (). 
 
 3 Bowdenf. Henderson, 2 Sin. and G., 360. 
 
 4 Lewin. 7th Edn., 319, citing Woodhouselee v. Dalrymple, 9 W. R. 
 (Eng), 475; Monckton v. Braddell. L. R., 7 Eq., 30. 
 
 5 Dowley v. Winfield, 14 Sim., 277; Cuthbert v. Furrier, 2 Phillips. 199. 
 
 6 Eaves v. Hickson, 30 Beav., 143 : see further Lewin, 7th Edn., 326. 
 
 7 Doyle . Blake, 2 Sch. and Lef., 243. 
 
 8 And see Urch v. Walker, 3 M. and C., 705 ; Turner r. Maule, 3 DeG-. 
 and Sm., 497 ; In re Knight's Trusts, 27 Beav., 49. 
 
 9 Exparte Norris, L. R., 4 Ch., 287. 
 
 23 
 
178 COSTS. 
 
 LECTUBE Where the trustees have acted bond fide and under legal 
 VIL advice, they will not be made to pay costs. 1 As a rule, 
 
 Costs. ~ costs follow the event, and if a plaintiff fails, he has to pay 
 the costs of the suit. But the Court has jurisdiction to 
 allow an unsuccessful plaintiff his costs. And if it appears 
 upon the construction of the instrument of trust that the 
 rights of parties were so exceedingly doubtful that the fund 
 could not safely be distributed without the opinion of the 
 Court, an unsuccessful claimant may be allowed his costs 
 out of the fund. 2 Where, however, a suit was instituted 
 for the administration of an estate by a person entitled to 
 a contingent reversionary interest, and a decree for an 
 account was obtained, but before the accounts could be 
 taken his interest wholly failed, he was held not to be 
 entitled to his costs either as against the defendants or out 
 of the fund. 3 
 
 But trustees are not justified by remaining passive, in 
 preventing the rightful owners from obtaining possession of 
 their property, and if called upon to do an act involving 
 no risk or responsibility, which is necessary to enable the 
 true owner to obtain his property, they are bound to do it ; 
 and if their refusal renders an application to the Court 
 necessary, they will be made to pay the costs. 4 
 
 Interest. An executor or trustee who in good faith pays over trust- 
 money to persons who are not entitled to it, may be order- 
 ed to refund, but he will not have to pay interest. 5 If 
 interest has been paid by mistake, it cannot be recovered 
 back, but such wrongful payment cannot affect the title 
 to the capital. 6 
 
 Bond of " In cases where there exists a mere shadow of doubt as 
 
 indemnity. fo fa e r jghfc s of parties interested, and it is highly impro- 
 bable that any adverse claim will, in fact, be ever advanced, 
 the protection of the trustee may be provided for by a 
 substantial bond of indemnity. In general, however, a 
 bond of indemnity is a very unsatisfactory safeguard, for 
 
 1 Angier v. Stannard, 3 M. and K., 566 ; Devey v. Thornton, 9 Hare, 
 232 ; Field t>. Donoughmore, 1 Dr. and War., 234. 
 
 2 Lynn v. Beaver, T. and R., 63 ; Westcott . Culliford, 3 Hare, 274 ; 
 Turner v. Frampton. 2 Coll.. 336 ; Wedgwood r. Adams. 8 Beav., 103 ; 
 Boreham v. Bignall, 8 Hare, 134 ; Merlin v, Blagrave, 25 Beav., 134. 
 
 3 Hay v. Bowen, 5 Beav., 610. 
 
 4 In re Primrose. 23 Beav.. 590. 
 
 5 Saltmarsh T. Barrett. 31 Beav., 349. 
 
 ' Remnant v. Hood, 2 DeG. F. and J., 404 : see Ex parte Ogle. L. R., 
 8 Ch., 711. 
 
PAYMENT ON WRITTEN AUTHORITY. 179 
 
 when the danger arises, the obligors are often found in- LECTURE 
 solvent, or their assets have been distributed. And if the vn - 
 bond be to indemnify against a breach of trust, the Court 
 is not disposed to show mercy towards a trustee who ad- 
 mits himself to have wilfully erred by having endeavour- 
 ed to arm himself against the consequences." * 
 
 " Where the trustee is satisfied as to the parties right- Authority 
 fully entitled, he may pay the money either to the parties from . 
 
 j.11 i-i.i * cestui que 
 
 themselves, or to an agent empowered by them to receive trust to 
 it; and the authority need not be by power-of-attorney, receive the 
 or by deed, or even in writing. The trustee is safe if 
 he can prove the authority, however communicated. But 
 a trustee would not be acting prudently if he parted with 
 the fund to an agent without some document producible 
 at any moment by which he could establish the fact of the 
 agency." 2 
 
 If trustees pay on awritten authority, they must be careful Payment 
 to see that it is genuine ; for if it turns out to be forged, authority 611 
 they will be liable for the loss. " Trustees," said Lord 
 Northington, 3 " whether private persons or a body corpo- 
 rate, must see to the reality of the authority empowering 
 them to dispose of the trust-money, for if the transfer is 
 made without the authority of the owner, the act is a 
 nullity, and in consideration of law and equity the rights 
 remain as before." In that case a bank had permitted a 
 transfer of stock under a forged power-of-attorney. " The 
 question is," said Lord Romilly, 4 " where forgery is com- 
 mitted, and a person wrongfully gets trust-money which 
 cannot be recovered from him, on whom is the loss to 
 fall ? I am of opinion that it falls on the person who paid 
 the money. Here the loss falls on the trustees, and the 
 persons to whom the fund really belongs are not to be 
 deprived of it. The trustee is bound to pay the trust- 
 fund to the right persons." In this case the trustees had 
 paid over the trust-fund to wrong parties upon a forged 
 authority, and they were held to be liable ; but the persons 
 who had wrongfully received the money were ordered to 
 repay the amount they had respectively received in order 
 to relieve the trustees. 5 
 
 1 Lewin, 7th E<3n., 320. 2 Ibid, 322. 
 
 3 Ashby v. Blackwell, 2 Eden, 302 : and see Sloman v. The Bank of 
 England, 14 Sim.. 475. 4 Eaves v. Hickson, 30 Beav.. 141. 
 
 5 See also Bostock v. Floyer. L. R.. 1 Ch.. 20 ; Hopgood c. Parkin, 
 L. R., 11 Eq., 75 ; Sutton v. Wilders, L. R., J2 Eq., 373. 
 
180 
 
 REFUND. 
 
 LECTUIJE 
 VII. 
 
 Payment 
 to persons 
 under 
 disability. 
 Partners. 
 
 Payment 
 to single 
 trustee. 
 
 Over- 
 payment. 
 
 Refund to 
 executor. 
 
 If trustees are induced by fraud to pay to an infant, 
 they will not be liable to pay over again to him when he 
 comes of age. 1 
 
 In the case of the death of a partner, a debt owing to 
 the firm may safely be paid to the surviving partners, who 
 are competent to give receipts in respect of joint debts. 2 
 
 " The Court will not, in the exercise of its discretion, 
 except under special circumstances, pay out money to a 
 single trustee who has survived his co-trustees, and a 
 trustee out of Court would do well to throw all the pro- 
 tection he can about a trust-fund ; but it must not be in- 
 ferred that he would not be safe in paying to a single 
 surviving trustee, for payment to a surviving trustee for 
 sale, is of constant occurrence." 3 
 
 If trustees under an erroneous view of the effect of 
 the instrument of trust have overpaid cestuis que trustent, 
 the Court will compel a restitution and repayment, and 
 will give the trustees a lien on other interests of such 
 cestuis que trustent, even as against an assignee for valu- 
 able consideration. 4 And one cestui que trust may sue 
 the cestui que trust who has been overpaid, to recover the 
 amount notwithstanding the Limitation Act, if there have 
 been no improper laches on his part. 5 
 
 Where in a suit against a trustee for relief in respect 
 of a breach of trust it appears that overpayments have 
 been made, they may be recovered in the suit without 
 instituting fresh proceedings. 6 
 
 Legatees will not, generally, be made to refund, at the 
 the suit of other legatees, payments voluntarily made to 
 them by the executors under a mistake, but the repay- 
 ment will be ordered to be made out of any undistributed 
 funds in which they may be interested, 7 especially they 
 Avill not be made to refund when they were not willing 
 parties to the payment, and a long period has since 
 
 1 Overton v. Banister, 3 Hare, 503 ; Wright r. Snowe. 3 DeG. and Sm., 
 321 ; Xelson v. Stocker, 4 DeG. and J., 458. As to payments to married 
 women and lunatics, see Lewin. 7th Edn., 323, 324. 
 
 2 Philips v. Philips, 3 Hare, 289. 
 
 3 Lewin, 7th Edn.. 324. 
 
 4 Dibbs v. Goren, 11 Beav.. 483 ; Livesey r. Livesey. 3 Ross.. 287. 
 
 5 Harris v. Harris, 29 Beav.. 110; Prowse . Spurgin, L. R., 5 Eq., 
 99 ; Jervis r. Wolferstan, L. R., 18 Eq.. 18. 
 
 6 Hood . Clapham, 19 Beav., 90 ; Baynard r. Woolley, 20 Beav.. 583 ; 
 Davies v. Hodgson. 25 Beav., 177 ; Griffiths r. Porter, ib., 230. 
 
 7 Dowiifcs c. Bullock, 25 Beav., 54. 
 
REFUND. 
 
 elapsed. 1 And it appears that a purchaser of a legacy LECTORS 
 cannot be called upon to refund or pay any portion of a VI1 - 
 debt subsequently established against the testator's estate. 2 
 
 Where an executor administered an estate and paid 
 over the residue, and ten years after a creditor of the 
 testator brought an action of covenant against the exe- 
 cutor, who instituted proceedings to administer the estate, 
 and to make legacies standing in the joint names of the 
 executor and legatees applicable to the payment of the 
 debt, the Court ordered the debt to be paid out of the 
 legacies, but refused to allow the executor his costs. 3 
 
 Notice of a remote contingent liability on the part of 
 a testator is not sufficient to prevent his executor from 
 distributing his residuary estate ; and if the executor 
 distributes with such notice, and the liability afterwards 
 ripens into a debt, he will be entitled to call upon the 
 residuary legatees to refund. 4 
 
 Where one of several residuary legatees or next-of-kin 
 has received his share of the estate of a testator or intestate, 
 the others cannot call upon him to refund if the estate is 
 subsequently wasted ; but they can do so if the wasting 
 took place before such share was received. And in the latter 
 case, the burden of proof lies on those who call upon the 
 residuary legatee or next-of-kiu to refund, to show that 
 the wasting took place before the shai'e was paid over. 5 
 
 It is a breach of trust on the part of executors or Payment 
 trustees to pay residuary legatees while their testator's Jj, e $. 
 debts remain unpaid, and creditors whose debts are not tor sub- 
 Statute-barred may recover the amount from the legatees, 6 81stlll s- 
 but they cannot recover from a purchaser for value. 7 
 
 If through the acts, or default of the trustees, the trust- Liability of 
 property is damaged, the cestuis que trustent are entitled ^^h oT 
 to sue the trustees for compensation for the loss which has trust, 
 been sustained, and the trustees will be liable to make 
 good such loss personally. 8 
 
 1 Bate v. Hooper, 5 D. M. G.. 345. 
 
 2 Noble c. Brett, 24 Beav., 499. 
 
 3 Noble v. Brett, 24 Beav.. 499 ; 26 Beav., 233. 
 * Jervis v. Wolferstan, L. R., 18 Eq., 18. 
 
 5 Peterson v. Peterson, L. R., 3 Eq., 111. 
 
 6 Fordham v. Wallis. 10 Hare, 217. 
 
 ' Dilkes v. Broadmead. 2 D. F. & J., 566 ; Ridgway r. Newstead, 3 D. 
 F. & J., 474 
 
 8 Syed Khodabunda Khan v. M. S. Oomutul Fatima. 13 S. D. A.. 235 ; 
 Moonshee Buzzul Ruhhn r. Shumsheroon-nissa Begum, W. R. (F.B.), 60. 
 
182 
 
 LIABILITY FOR BREACH OF TRUST. 
 
 LECTURE 
 VII. 
 
 Trustee 
 liable, 
 though he 
 has not 
 benefited. 
 
 Extent of 
 liability. 
 
 Trustee 
 about to 
 abscond. 
 
 Criminal 
 breach of 
 
 trust. 
 
 A trustee is liable for a breach of trust, even though 
 there was no consideration and the trustee himself is the 
 author of the trust. 1 And if any person assumes to act 
 as a trustee, and in so doing injures the trust-fund, he 
 will be responsible, though he was never properly ap- 
 pointed. 2 
 
 The Court does not inquire whether the trustee has 
 gained any particular benefit ; but fastens upon him an 
 obligation to make good the situation of the cestui que 
 trust. 3 " It has been the constant habit of Courts of 
 Equity," said Lord Redesdale, 4 " to charge persons in the 
 character of trustees with the consequences of a breach of 
 trust, and to charge their representatives also, whether 
 they derive benefit from the breach of trust or not." 5 
 
 A trustee will not be charged, as a mortgagee, for what 
 he has or might have received ; 6 he will not be charged 
 with imaginary values, 7 for he is a mere stake-holder. 8 
 But if there is wilful default, 9 or very supine neglect, 7 
 he may be charged with more than he received, but the 
 proof must be very strong. 7 
 
 If the trustee is about to abscond, the cestui que trust 
 may apply under chap. XXXIV of the Code of Civil 
 Procedure that the trustee may give security, and the Court 
 may, if it thinks fit, issue a warrant to arrest the trustee 
 and bring him before the Court to show cause why he 
 should not give security for his appearance. The Court 
 would probably only exercise its jurisdiction under this 
 chapter if the cestui que trust had a vested interest, and 
 would not interfere where the cestui que trust's interest 
 was contingent A present vested interest, though cap- 
 able of being divested, would be sufficient. 9 
 
 If a trustee dishonestly misappropriates or converts 
 trust-property to his own use, or dishonestly uses or dis- 
 poses of that property in violation of any direction of 
 
 1 Drosier v. Brereton. 15 Beav., 221. 
 
 2 Rackham v. Siddal, 16 Sim., 297 ; 1 Mac. & G.. 607 ; Life Association 
 of Scotland . Siddal, 3 DeG. F. & J.. 58 ; Aveline v. Melhuish, 2 DeG. 
 J. & S.. 288 ; Hennessey . Bray. 33 Beav., 96. 
 
 3 Dornford r. Dornford, 12 Ves.. 129. 
 
 4 Adair v. Shaw, 1 Sch. & Lef.. 272. 
 
 s See also Raphael r. Boehm. 13 Ves.. 411. 490 ; Moons r. De Bernales, 
 1 Russ., 305; Lord Montford v. Lord Cadogan, 17 Ves., 489. 
 
 6 Harnard r. Webster. Sel. Ch. Ca., 53. 
 
 7 Palmer r. Jones. 1 Vern., 144. 
 
 8 Pybns v. Smith, 1 Ves. J., 193. 
 
 9 See Howkins c. Howkius, 1 Dr. i; Sm., 75. 
 
CRIMINAL BREACH OF TRUST. 183 
 
 law prescribing the mode in which such trust is to be LECTURE 
 discharged, or of any legal contract, express or implied, vn - 
 which he has made touching the discharge of such trust, 
 or wilfully suffers any other person so to do, he commits 
 criminal breach of trust (Act XLV of 1860, s. 405), and is 
 liable to be punished with imprisonment of either descrip- 
 tion for a term which may extend to three years, or with 
 fine or with both (s. 406). And the Code contains provi- 
 sions (ss. 407, 408, 409) regarding criminal breach of trust 
 by a carrier, wharfinger, or warehouse-keeper; clerks or 
 servants, public servants, bankers, merchants, or agents. 
 At one time it was held in England, that a trustee could 
 not be punished for stealing the trust-property, as he is, 
 according to English law, the legal owner, and a man cannot 
 steal his own property. This absurdity has, however, been 
 done away with by 24 and 25 Viet., c. 96, ss. 80, 86 ; and 
 a trustee in England is now liable criminally as well as 
 civilly. 
 
 A refusal to give up land alleged to have been mort- 
 gaged, the mortgage having been denied, cannot be treated 
 as a dishonest misappropriation of documents of title 
 amounting to a criminal breach of trust under s. 405. 1 
 
 If a professional adviser wilfully advises a breach of Liability of 
 trust, he will be liable to be suspended from practice. 2 profession- 
 And a trustee, also a professional man, who commits a a 
 breach of trust, is liable to the same penalty. 3 But the 
 breach must be wilful; and a professional man acting 
 under instructions from the trustees, will not, as we have 
 seen, be liable as a constructive trustee, unless he is aware 
 of the intended breach of trust. 4 
 
 If a trustee is a member of a firm, and pays trust- Partner, 
 moneys into the partnership account, the other partners 
 will be liable for any loss occasioned by the breach of 
 trust; 5 and if one of a firm of solicitors in transacting 
 business with trustees practises a fraud upon the trustees, 
 the co-partners are liable. 6 
 
 If trustees neglect to take possession of the trust-property, Loss by 
 and to put it in position of security, they have committed accident - 
 
 1 Reg. v. Jaffir Naik, 2 Bom. H. C. R., 133. 
 
 2 Goodwin v. Gosnell. 2 Coll.. 457. 
 
 3 In re Chandler. 22 Beav.. 253. 
 
 4 Barnes v. Addy, L. R., 9 Cb... 244. 
 s Eager r. Barnes. 31 Beav., 579. 
 
 Lewin, 7th Edn., 77u. 
 
184 BREACH OF TRUST GENERALLY. 
 
 LECTURE a breach of trust, and will be liable for loss, even by fire, 
 
 VI1 - lightning, or any other accident. 1 
 
 Neglect to If a trustee neglects to follow a direction to accumulate 
 obey direc- dividends, 2 to enforce a transfer of stock, 3 or to sell, and in 
 instrument consequence the property becomes deteriorated in value, he 
 of trust, will be liable for any loss that may happen. 4 So, if he neg- 
 lects to register or to execute a power which it was his 
 duty to execute, he will be liable for loss. 5 
 
 To pay If a trustee suffers a policy of insurance to become for- 
 
 preunums. f e ited through neglect to pay the premiums, he is bound 
 to make good the loss to the cestui que trust. 6 But if a 
 trustee has no funds in hand, he will not be liable. 7 If he 
 advances the premiums himself, he will have a lien on the 
 policy. 8 If there are no means of keeping up the policy, 
 the Court will direct it to be sold. 9 
 
 Saietopur- If a trustee has wrongfully sold the trust-estate to a 
 
 viable* P m> chaser for valuable consideration without notice, the 
 
 considera- cestui que trust may either compel the trustee to purchase 
 
 ouTnotice ^ er l an( Is of equal value, which lands will be held upon 
 
 the trusts originally provided, 10 or he may take the proceeds 
 
 of the sale with interest, or the present estimated value of 
 
 the lands sold, after deducting any increase of price caused 
 
 by subsequent improvements. 11 
 
 Agent. As a rule, an agent appointed by a trustee cannot be 
 
 made accountable for any losses incurred by him while 
 acting as agent. 12 If, however, he goes beyond his author- 
 ity as an agent, and loss ensues, he will be liable as a 
 constructive trustee. 13 The trustees are responsible for the 
 acts of their agents, and must be made parties to a suit 
 to recover moneys lost by the agent. 14 
 
 1 Caffrey v. Darby, 6 Ves., 496 : see also Cocker v. Quayle, 1 R. & M., 
 535 ; Fyler V. Fyler, 3 Beav., 568 ; Kellaway v. Johnson. 5 Beav., 324 ; 
 Munch r. Cockerell, 5 M. & Cr., 212 ; Gibbins v. Taylor, 22 Beav., 344. 
 
 2 Pride v. Fooks, 2 Beav., 430. 
 
 3 Fenwick v. Greenwell, 10 Beav., 412. 
 
 4 Devaynes v. Robinson, 24 Beav., 86 ; Sculthorpe v. Tipper.. L. R,, 
 13 Eq., 232 ; In re Norrington, L. R., 13 Ch. Div., 664. 
 
 s Lewin, 7th Edn., 771. 
 
 6 Lewin, 7th Edn.. 771, citing Marriott v. Kinnersley, Taml.. 470. 
 
 7 Hobday v. Peters (No 3), 28 Beav., 603 : see, however, Kingdon v. 
 Castleman, 46 L. J.. Ch.. 448. 
 
 8 Clack v. Holland. 29 Beav., 273. 
 
 9 Hill r. Teenery. 23 Beav., 16. 
 
 10 See Lewin, 7th Edn., 770. " Ibid. 
 
 12 Morgan v. Stephens, 3 Giff., 235 ; Marshall v. Sladden, 7 Hare, 428. 
 
 13 Morgan v. Stephens, 3 Giff., 235 ; Hardy v. Caley. 33 Beav., 365. 
 
 14 Robertson r. Armstrong, 28 Beav., 123. 
 
AGENTS. 
 
 A firm of solicitors having been employed by the trus- LKOTUBB 
 tees of a will to receive the proceeds of the testator's real VIJ - 
 estate which had been taken by a Railway Company, paid 
 over the money to one of such trustees without the receipt 
 or authority of the other. The money having been lost to 
 the estate by the insolvency and death of the trustee to 
 whom it was paid, it was held, that the receipt of one 
 trustee only (though also an executor) was not a sufficient 
 discharge to the solicitors for the money which they had 
 received by the authority of the two, and that they were 
 personally liable to make good the loss which had resulted 
 to the trust-estate from such improper payment. 1 
 
 The tendency of recent decisions is to avoid making an 
 agent responsible, unless there has been dishonest know- 
 ledge on his part. In Barnes v. Addy 2 Lord Selborne, Ban.es p. 
 L.C., said: " It is equally important to maintain the doctrine 
 of trusts which is established in this Court, and not to 
 strain it by unreasonable construction beyond its due and 
 proper limits. There would be no better mode of under- 
 mining the sound doctrines of equity than to make reason- 
 able and inequitable applications of them. 
 
 " Now in this case we have to deal with certain persons 
 who are trustees, and with certain other persons who are 
 not trustees. That is a distinction to be borne in mind 
 throughout the case. Those who create a trust clothe the 
 trustee with a legal power and control over the trust-pro- 
 perty, imposing on him a corresponding responsibility. 
 That responsibility may no doubt be extended in equity to 
 others who are not properly trustees, if they are found 
 either making themselves trustees de son tort, or actually 
 participating in any fraudulent conduct of the trustee to 
 the injury of the cestui que trust. But, on the other hand, 
 strangers are not to be made constructive trustees merely 
 because they act as the agents of trustees in transactions 
 within their legal powers transactions, perhaps, of which 
 a Court of Equity may disapprove, unless those agents 
 receive and become chargeable with some part of the trust- 
 property, or unless they assist with knowledge in a dis- 
 honest and fraudulent design on the part of the trustees. 
 Those are the principles, as it seems to me, which we must 
 bear in mind in dealing with the facts of this case. If 
 those principles were disregarded, I know not how any one 
 
 1 Lee r. Sankey, L. R., 16 Eq., 204. 2 L. R., 9 Ch v 251. 
 
 24 
 
lg(J LIMITATION. 
 
 LECTURE could, in transactions admitting of doubt as to the view 
 VII. which a Court of Equity might take of them, safely dis- 
 charge the office of solicitor, of banker, or of agent of any 
 sort to trustees. But on the other hand, if persons dealing 
 honestly as agents are at liberty to rely on the legal power 
 for the trustees, and are not to have the character of trus- 
 tees constructively imposed upon them, then the transac- 
 tions of mankind can safely be carried through ; and I 
 apprehend those who create trusts do expressly intend, in 
 the absence of fraud and dishonesty, to exonerate such 
 agents of all classes from the responsibilities which are 
 expressly incumbent by reason of the fiduciary relation, 
 upon the trustees." 
 
 Limitation. Limitation cannot be pleaded as a bar to a suit for 
 compensation for breach of trust, where the trust is ex- 
 press. Section 10 of Act XV of 1877 provides, that "no 
 suit against a person in whom property has become vested 
 in trust for any specific purpose, or against his legal re- 
 presentatives or assigns (not being assigns for valuable 
 -consideration) for the purpose of following in his or their 
 hands, such property shall be barred by any length of 
 time." These words mean, that where a trust has been 
 created expressly for some specific purpose or object, and 
 property has become vested in a trustee upon such trust 
 (either from such person having been originally named 
 as trustee, or having become so subsequently by operation 
 of law), the person or persons who for the time being may 
 be beneficially interested in that trust, may bring a suit 
 against such trustee to enforce that trust at Jiny distance 
 of time, without being barred by the law of limitation. 1 
 The words ' in trust for a specific purpose ' are intended 
 to apply to trusts created for some defined or particular 
 purpose or object as distinguished from trusts of a general 
 nature, such as the law imposes upon executors or others 
 who hold recognized fiduciary positions ; they are used in a 
 restrictive sense to limit the character or nature of the trust 
 attaching to the property which is sought to be followed. 2 
 
 In this country, suits betsveen a cestui que trust and 
 trustee for an account are governed solely by the Limita- 
 tion Act; and. unless they fall within the exemption of 
 
 1 Kherodemoney Dossee r. Doorgamoney Dossee, I. L. R., 4 Calc.. 465, 
 per Garth. C. J. 
 
 2 Greender Chunder Ghose v. Mackintosh, I. L. R., 4 Calc., 897 : see 
 Lewin, 7th Edn., 769. 
 
WILFUL DEFAULT. 
 
 s. 10, are liable to become barred by some one or other of LECTURE 
 the articles in the second schedule of the Act. To claim vn - 
 the benefit of that section, a suit against a trustee must be 
 for the purpose of following the trust-property "in his 
 hands. If the object of the suit is not to recover any 
 property in specie, but to have an account of the defend- 
 ant's stewardship, which means an account of the moneys 
 received and disbursed by the defendant on the plaintiff's 
 behalf, and to be paid any balance which may be found 
 due to him upon taking the account, it must be brought 
 within six years from the time when the plaintiff had first 
 a right to demand it. 1 
 
 In 1860, certain shares in a company then formed were 
 allotted to S., on the understanding, as the plaintiff' alleged, 
 that 120 of such shares should, on the amount thereof being 
 paid to S., be transferred to, and registered in the books of, 
 the company in the names of the plaintiffs. In 1862, the 
 plaintiffs completed the payment to S. in respect of the 
 shares, and during his lifetime, received dividends in respect 
 of the shares. S. died in 1870 leaving a will, probate of 
 which was granted to the defendant as his executor. In 
 a suit brought by the plaintiffs, after demand of the shares 
 from the defendant, and refusal by him to deliver them, 
 to compel the defendant to transfer the shares to the plain- 
 tiffs, and register the same in their names, the plaintiffs' 
 case was, that the shares had been held in trust for them, 
 and that, consequently, their suit was not barred by lapse 
 of time. It was held, that the transaction between S. and 
 the plaintiffs did not amount to "a trust for a specific 
 purpose." 2 
 
 It is a general rule that a plaintiff cannot have any wilful 
 relief for which no case has been made on the pleadings, 3 
 and, therefore, if a cestui que trust sues his trustee for 
 an account, and the plaintiff seeks relief against wilful 
 default, he must in his pleadings allege some specific act 
 of wilful default and pray for consequential relief,* and 
 he must prove at least one act of wilful neglect and 
 default. 5 
 
 1 Saroda Pershad Chattopadhya v. Brojo Nath Bhuttacharjee, I. L. R., 
 5 Calc., 910. 
 
 2 Ahmed Mahomed Patel v. Adjein Dooply, I. L. R., 2 Calc., 323. 
 
 3 Mayer v. Murray. 47 L. J., Ch., 606. 
 Lewin, 7th Edn., 772. 
 
 * Sleight v. Lawson, 3 K. & J., 292. 
 
188 
 
 CONCURRENCE. 
 
 LECTUBE If a t the hearing no act of wilful default is proved, 
 VII. and on taking the ordinary accounts, documents are dis- 
 covered which might have shown wilful default, the Court 
 will not direct any further inquiry as to wilful default. 1 
 But if the plaintiff pray an account with interest, and at 
 the original hearing an account is directed, and in the 
 course of the accounts improper balances appear to have 
 been retained, interest on the balances may be asked for 
 at the hearing on further directions. 2 And if relief against 
 a breach of trust be prayed, and at the original hearing 
 the usual accounts only are directed, but with an enquiry 
 who are the parties interested, it is not too late to ask 
 relief against the breach of trust on further directions, 
 as before that time the Court was not in a condition to 
 deal with the question. 3 
 
 And in a redemption-suit it is not necessary that the 
 plaintiff should charge wilful default ; nor is the case 
 altered, if the deed, though in substance a security, be in the 
 form of a deed of trust. 4 A mortgagor can always have an 
 account of rents and profits which a mortgagee in possession 
 might, but for his wilful default, have received, though no 
 charge of wilful default has been made, the reason being, that 
 the Court looks with less favour on the case of a mortgagee 
 in possession than on that of a mere gratuitous trustee. 
 Concur- If the cestuis que trustent are persons who are com- 
 rence. petent to contract, 6 and they have assented to the wrong- 
 ful act on the part of the trustees, the Court will endeavour 
 to deliver the trustees from their liability to make good any 
 loss, 7 and the cestuis que trust ent will have to bear it. 
 If some of the cestuis que trustent are not competent to 
 contract, the loss will be thrown, in the first instance, upon 
 those who were sui juris and who consented to the breach 
 of trust, but the trustees will remain liable to make up 
 any deficiency. "The rule of the Court in all cases is, 
 that if a trustee errs in the management of the trust, 
 and is guilty of a breach of trust, yet if he goes out of 
 the trust with the approbation of the beneficiary, it must 
 first be made good out of the estate of the person who 
 
 1 Coope v. Carter. 2 D. M. G., 292 : and see Re Fryer, 3 K. & J., 317 ; 
 Partington r. Reynolds, 4 Drew., 253 ; Re Delevante, 6 Jur., N. S., 118 ; 
 Brooker T. Brooker, 3 Sm. & Giff.. 475. 
 
 2 Lewin. 7th Edn., 772. 3 Ibid. * Ibid. 773. 
 
 s Mayer r. Murray, 47 L. J., Ch., 606. 6 See Lewin. 7th Edn., 783. 
 
 7 See Aganoor v. Hogg, Boul.. 38; Brice ?. Stokes, 11 Ves., 324 ; 
 Thompson r. Linch, 22 Beav., 324; 8 D. M. G., SCO. 
 
CONCURRENCE. 189 
 
 consented to it." l And the Court will enquire whether LECTURE 
 and when the cestui que trust had notice of the breach vn - 
 of trust. 2 No man, having a right to require the per- 
 formance of a duty, who becomes a party to the delay in 
 the performance of it, can complain of any consequences 
 which may arise from such delay. There is a marked dis- 
 tinction between the degree of knowledge and sanction 
 necessary for the purpose of exonerating a trustee from 
 that which was clearly a breach of trust, and that which 
 is necessary to preclude the cestui que trust from com- 
 plaining of that not being done, the omission to do which, 
 with the concurrence of the cestui que trust, never consti- 
 tuted a breach of trust. In the first case, it is used to 
 release a right and discharge an obligation already per- 
 fected by the breach of trust ; in the latter, only to pre- 
 vent a right from arising from the non-performance of a 
 duty which it was competent for the cestui que trust to 
 dispense with. 3 " It is established by all the cases," said 
 Lord Eldon, 4 " that if the cestui que trust joins with the 
 trustees in that which is a breach of trust, knowing the 
 circumstances, such a cestui que trust can never complain 
 of such a breach of trust. I go further, and agree, that 
 either concurrence in the act, or acquiescence without 
 original concurrence, will release the trustees ; but that 
 is only a general rule, and the Court must inquire into 
 the circumstances which induced concurrence or acquies- 
 cence ; recollecting in the conduct of that inquiiy, how 
 important it is, on the one hand, to secure the property 
 of the cestui que trust, and on the other, not to deter 
 men from undertaking trusts, from the performance of 
 which they seldom obtain either satisfaction or gratitude." 
 Where trustees allowed property settled upon the mar- 
 riage of a lady to remain uninvested in the hands of one 
 of their co-trustees, the lady being aware of the facts, and 
 the trustee with whom the money was, subsequently be- 
 came insolvent, it was held, that the co-trustees had been 
 guilty of a breach of trust, but that the lady was debarred 
 by acquiescence from obtaining any relief from them. 5 
 
 1 Trafford r. Boehm. 3 Atk.. 444. per Lord Hardwicke: Lord Montford r. 
 Lord Cadogan, 17 Yes., 4s:> : 11) Yes., 635 ; Booth o. Booth, 1 Beav., 130. 
 
 2 Broadhurst r. Balguy. 1 Y. & C. C. C., 16. 
 
 3 Munch c. Cockeroll.'.-. My. -\: Cr.. :.'(>:, -J18. 
 
 4 Walker r. Sy mends. !! Swanst.. I. 04. 
 
 5 Jones c. Higgins, L. R., i' K<I.. :>:'>$. 
 
190 
 
 ACQUIESCENCE. 
 
 Fraud by 
 trustees. 
 By cestui 
 que trust. 
 
 Acquies- 
 cence. 
 
 LKCTUBE If the trustees have induced the cestuis que trustent to 
 VI1 - assent to the breach of trust by fraud, their liability will, 
 of course, remain unaltered. 1 
 
 If cestuis que trustent, who are not competent to con- 
 tract, fraudulently induce their trustees to commit a 
 breach of trust, they are debarred from afterwards calling 
 upon the trustees to make good any loss. 2 
 
 Cestuis que trustent may debar themselves from obtain- 
 ing relief in respect of a breach of trust either by direct 
 acquiescence in the act, 3 or else by standing by and allow- 
 ing the wrongful act complained of to be done without 
 objection. 4 
 
 The term acquiescence will have different significa- 
 tions attached to it, according to whether the acquiescence 
 alleged, occurs while the act acquiesced in is in progress, 
 or only after it has been completed. " If," said Thesiger, 
 L. J., 5 " a person having a right, and seeing another person 
 about to commit, or in the course of committing, an act 
 infringing upon that right, stands by in such a manner 
 as really to induce the person committing the act, and 
 who might otherwise have abstained from it, to believe 
 that he assents to its being committed, he cannot after- 
 wards be heard to complain of the act. This, as Lord 
 Cottenham said in The Duke of Leeds v. Earl of Am- 
 herst, 6 is the proper sense of the term ' acquiescence,' and in 
 that sense may be defined as quiescence, under such 
 circumstances as that assent may be reasonably inferred 
 from it, and is no more than an instance of the law of 
 estoppel by words or conduct. But when once the act 
 is completed without any knowledge or assent upon the 
 part of the person whose right is infringed, the matter 
 is to be determined on very different legal considerations. 
 A right of action has then vested in him which, at all 
 events, as a general rule, cannot be divested without 
 accord and satisfaction or release under seal. Mere sub- 
 mission to the injury for any time short of the period 
 limited by Statute for the enforcement of the right of 
 
 1 Walker v. Symonds, 3 Swanst., 1. 
 
 2 See Lewin, 7th Edn., pp. 7836, and ante, p. 128. 
 
 3 Styles r. Guy. 1 Mac. and G., 427 ; Graham v. Birkenhead Railway 
 Co., 2 Mac. and G., 156 ; Kent v. Jackson, 14 Beav., 384. 
 
 4 Duke of Leeds v. Earl of Amherst, 2 Phillips, 123 : Phillipson v. 
 Gatty, 7 Hare, 523 ; Stafford v. Stafford, 1 DeG. and J., 202 ; Jorden v. 
 Money. 5 H. L. C., 185 ; Rennie v. Young, 2 DeG. and J., 136. 
 
 5 De Bussche v. Alt, L. R., 8 Ch. Div., 314. 6 2 Phill., 47, 123. 
 
DELAY. 191 
 
 action, cannot take away such right, although under the LECTURE 
 name of laches it may afford a ground for refusing relief ^ 
 under some particular circumstances ; and it is clear that 
 even an express promise by the person injured that he 
 would not take any legal proceedings to redress the injury 
 done to him, could not by itself constitute a bar to such 
 proceedings, for the promise would be without considera- 
 tion, and therefore not binding." x 
 
 In order that acquiescence may be successfully pleaded 
 as a bar to a suit for relief in respect of a breach of 
 trust, there must have been such delay as amounts to 
 laches on the part of the cestui que trust. No precise time 
 can be fixed, but delay for twenty years will disentitle 
 the cestui que ti^ust to relief. 2 The onus lies on the party 
 relying on acquiescence to prove the facts from which 
 the consent of the cestui que trust is to be inferred. 3 It 
 is not the business of a cestui que trust to inform a trustee 
 of his duty, and a cestui que trust will not, therefore, be 
 barred on the ground of acquiescence, because he has not 
 made enquiries which, if made, would have brought the 
 fact that a breach of trust had been committed to his 
 knowledge. 4 Nor will he be bound by accepting some 
 portion of his claim before suit. 5 A cestui que trust, 
 whose interest is reversionaiy, is apparently not bound to 
 take proceedings to rectify a breach of trust, and will not 
 be barred by acquiescence because he does not promptly 
 act. " Length of time," said Turner, L. J., 6 " where it does 
 not operate as a statutory or positive bar, operates, as I 
 apprehend, simply as evidence of assent or acquiescence. 
 The two propositions of a bar by length of time and by 
 acquiescence are not, as I conceive, distinct propositions. 
 They constitute but one proposition, and that proposition, 
 when applied to a question of this description, is, that the 
 cestui que trust assented to the breach of trust. A cestui 
 que trust, whose interest is reversionary, is not bound to 
 assert his title until it comes into possession, but the mere 
 circumstance that he is not bound to assert his title, does 
 
 1 And see Lewin, 7th Edn., 736. 
 
 2 Thomson r. Eastwood, L. R., 2 App. Cas.. 236, per Lord Cairns. 
 
 3 Life Association of Scotland v. Siddal, 3 DeG. F. and J., 77, per Lord 
 Campbell, L. C. 
 
 4 Thompson v. Finch, 22 Beav., 325 ; 8 D. M. G., 560 ; Life Association 
 of Scotland r. Siddal. 3 DeG. F. and J., 73. 
 
 5 Thompson r. Finch. 22 Beav., 316 ; 8 D. M. G., 560. 
 
 6 Life Association of Scotland v. Siddal, 3 DeG. F. and J., 72. 
 
192 RELEASE AND CONFIRMATION. 
 
 LECTURE not seem to me to bear upon the question of his assent 
 VII- to a breach of trust. He is not, so far as I can see, less 
 capable of giving such assent when his interest is in rever- 
 sion than when it is in possession. Whether he has done so 
 or not, is a question to be determined on the facts of each 
 particular case." ..." I am not prepared to say that 
 where the trust is definite and clear, a breach of trust can 
 be held to have been sanctioned or concurred in, by the 
 mere knowledge and non-interference on the part of the 
 cestui que trust before his interest has come into posses- 
 sion." It is almost impossible to attribute laches to a 
 person whose interest is reversionary, because he does not 
 sue before it vests in possession. 1 But knowledge of the 
 facts may and ought, in some cases, to be presumed from 
 great lapse of time. 2 
 
 Re ! ease fi Cestuis que trustent, who are competent to contract, may 
 
 mation. release their trustees from liability to account for a breach 
 
 of trust, or they may confirm the transaction, in either of 
 
 which case-s they will be debarred from proceeding against 
 
 the trustees. 3 
 
 If, however, the transaction in respect of which the re- 
 lease is given is null and void, the release will not bar the 
 cestui que trust. 4 " 
 
 A cestui que trust who releases the principal in a fraud 
 cannot go on against the other parties, though they would 
 have been secondarily liable. 
 
 In order that cestuis qtie trustent may be debarred from 
 obtaining relief in respect of a breach of trust on any of 
 the grounds which I have mentioned, they must be com- 
 petent to contract, must have full information of all the 
 facts relating to the breach of trust, must be aware of the 
 relief to which they would be entitled in a Court of Equity, 
 and must not have acted under compulsion. A cestui que 
 trust who has lately come of age should have independent 
 legal advice. 6 
 
 No set-off A trustee, who is liable for a loss occasioned by a breach of 
 of breach' trust in respect of one portion of the trust-property, can- 
 of trust, not set-off against his liability, a gain which has accrued 
 
 1 Taylor v. Cartwright, L. R.. 14 Eq., 176. 
 
 - Life Association of Scotland r. Siddal. 3 DeG. F. and J., 77. 
 3 French r. Hobson, 9 Yes.. 103 ; Wilkinson r. Parry. 4 Russ., 272 ; 
 Aylwin v. Bray, 2 Y. and J., 518 () ; Cresswell r. Dewell, 4 Giff.. 465. 
 1 Thomson v. Eastwood, L. R., '2 App. Cos.. 215. 
 
 5 Thomson r. Harrison, 2 Bro. C. C., 1G1. 
 
 6 See Lcwin, 7th Ed., pp., 789, 790. 
 
BREACH OF TRUST BY CO-TRUSTEE. 193 
 
 to another portion of the trust-property through another LECTUBE 
 and distinct breach of trust. " When there are two sepa- vn - 
 rate funds, subject to trusts," said Kindersley, V. C., 1 " and 
 the trustees commit a breach of trust as to one, by which 
 it is lost, I think it is impossible to permit the trustees to 
 say ' we have improved the other fund, and that fund is 
 bound to make up the loss on the other/ That I cannot 
 hold. If the trustees have lost one part of the settled 
 funds, they must answer for it, whatever may be the im- 
 provement of the other part." 2 
 
 One trustee is not as such liable for a breach of trust Liability 
 committed by his predecessor, 3 or by his co-trustee. The ^tru'sT'b 1 
 leading case upon this point is Townley v. Sherborne* where predecease* 
 it was resolved by all the Judges, " that where lands or leases or c - 
 were conveyed to two or more upon trust, and one of them 
 receives all, or the most part of the profits, and after dieth 
 or decayeth in his estate, his co-trustees shall not be charged, 
 or be compelled in this Court (the Court of Chancery) to 
 answer for the receipts of him so dying or decayed, unless 
 some practice, fraud, or evil dealing appear to have been in 
 them to prejudice their trust ; for they being by law joint 
 tenants or tenants-in-common, every one by law may receive 
 either all or as much of the profits as he can come by, and 
 if two executors be, and one of them waste all, or any part 
 of the estate, the devastavit shall, by law, charge him only, 
 and not his co-executor ; and in that case, equitas sequitur 
 legem, there having been many precedents that one execu- 
 tor shall not answer, nor be charged for the act or default 
 of his companion. 
 
 " And it is no breach of trust to permit one of the trustees 
 to receive all or the most part of the profits, it falling 
 out many times that some of the trustees live far from 
 the lands, and one put in trust out of other respects than 
 to be troubled with the receipt of the profits." 5 
 
 And it was further resolved, that " if, upon the proofs or 
 circumstances, the Court be satisfied that there be dolus 
 mains, or any evil practice, fraud, or ill-intent in him that 
 permitted his companion to receive the whole profits, he 
 may be charged though he receive nothing." 
 
 1 Wiles v. Gresham. 2 Drew.. 258, p. 271. 
 
 2 See also Dimes v. Scott, 4 RUBS., 195 ; Fletcher v. Green. 33 Beav., 426. 
 
 3 Tebbs v Carpenter, 1 Madd., 290. 
 
 4 Bridgman, 35. 
 
 * Williams r. Nixon. 2 Beav., 472. 
 
 25 
 
194 
 
 RECEIPT FOR CONFORMITY. 
 
 LECTURE 
 VII. 
 
 Trustee 
 joining in 
 receipt for 
 conform- 
 ity. 
 
 Trustee 
 giving 
 receipt 
 bound to 
 see to in- 
 vestment. 
 
 It is now settled, overruling the earlier cases, that a trus- 
 tee who joins with his co-trustees in a receipt for trust-money 
 when it is indispensable that he should do so for conform- 
 ity, will not, from that act alone, be made liable for any 
 misapplication of the trust-property by his co-trustees into 
 whose hands it comes. " It seems," said Lord Cowper, 1 " to 
 be substantial injustice to decree a man to answer for 
 money which he did not receive, at the same time that the 
 charge upon him by his joining in the receipts is but no- 
 tional." 2 " When the administration of the trust is vested 
 in co-trustees, a receipt for money paid to the account of 
 the trust must be authenticated by the signature of all the 
 trustees in their joint capacity, and it would be tyranny 
 to punish a trustee for an act which the very nature of his 
 office will not permit him to decline." 3 The trustee who 
 seeks to be discharged from liability, on the ground that he 
 only signed the receipt for conformity, must show that the 
 money acknowledged to have been received by all, was in 
 fact received by the co-trustees, and that he only joined 
 for conformity. 4 A joint receipt will charge trustees in 
 solido each, if there is no other proof of the receipt of the 
 money. As if a mortgage is devised in trust to three trus- 
 tees, and the mortgagor, with his witness, meets them to 
 pay it off; the money is laid on the table, and the mort- 
 gagor, having obtained a reconveyance and receipt for his 
 money, withdraws, each trustee is answerable in solido? 
 
 And where it cannot be distinguished how much was 
 received by one trustee, and how much by the other, each 
 will be charged with the whole ; for, in such case, the 
 trustees are to blame for not keeping distinct accounts. It 
 is like throwing corn or money into another's heap, where 
 there is no reason that he who made the difficulty should 
 have the whole ; on the contrary, because it cannot be dis- 
 tinguished he shall have no part. 6 
 
 But though a trustee joining in a receipt for conformity 
 may, under certain circumstances, escape liability for loss 
 incurred by the acts of his co-trustee, he will remain liable, 
 
 1 Fellows v. Mitchell, 1 P. Wms.. 82. 
 
 2 See also Brice v. Stokes, 11 Yes.. 319; In re Fryer, 3 K. and J., 
 317 ; and Lewin. 7th Ed., 242, where the cases are collected. 
 
 3 Lewin, 7th Edn.. 242. 
 
 4 Brice r. Stokes, 4 Ves.. 324. 
 
 5 Westley r. Clark. 1 Eden. 359. 
 
 8 Fellows r. Mitchell, 1 P. Wms., 81. 
 
RECEIPT FOR CONFORMITY. 195 
 
 if he allows the money, for which he has given a receipt, LKCTUBE 
 to remain uninvested for a long time, 1 or if he sanctions VIL 
 an improper investment. 2 "Though," said Lord Eldon, 3 
 " a trustee is safe, if he does no more than authorize the 
 receipt and retainer of the money as far as the act is within 
 the due execution of the power, yet, if it is proved that a 
 trustee, under a duty to say, his co-trustee shall not retain 
 the money beyond the time during which the transaction 
 requires retainer, and says, with his knowledge, and there- 
 fore with his consent, the co-trustee has not laid it out 
 according to the trust, but has kept it, or lent it, in opposi- 
 tion to the trust, and the other trustee permits that for 
 ten years together, the question turns upon this not 
 whether the receipt of the money was right, but whether 
 the use of it, subsequent to that receipt, was right after 
 the knowledge of the trustee, that it had got into a course 
 of abuse ... As soon as a trustee is fixed with know- 
 ledge that his co-trustee is misapplying the money, a duty is 
 imposed upon him to bring it back into the joint custody of 
 those who ought to take better care of it. It is the duty of 
 a trustee who signs a receipt for conformity and allows the 
 trust-money to get into the hands of his co-trustee, to ascer- 
 tain for what purposes the money is required, and person- 
 ally to ascertain that it has been duly invested. It is not 
 enough for him to rely upon a statement by the co-trustee 
 that such is the case." 4 
 
 The law on the point now under consideration was dis- walker v . 
 cussed at some length in Walker v. Symonds. 5 There a Symouds. 
 sum of money secured upon a mortgage was assigned to 
 three trustees, Donnithorne, Griffith, and Symonds, upon 
 certain trusts. The mortgage was paid off in 1791, and the 
 proceeds, with the approbation of Griffith and Symonds, 
 came into the hands of Donnithorne, who invested it in 
 securities of the East India Company, which were paid off 
 in 1795. Donnithorne again received the money. The co- 
 trustees allowed Donnithorne to retain the money, taking a 
 bond from him, he promising to give a mortgage over some 
 lauded estates belonging to him. This he never did, and 
 died in 1796 insolvent ; a bill by the cestuis que trustent . 
 
 1 Brice o. Stokes, 11 Ves.. 319. 
 
 2 Thompson r. Finch. 8 D. M. G.. 560. 
 8 Brice v. Stokes. 11 Ves.. 319. 
 
 4 Hanbury v. Kirkland, 3 Sim., 265 ; Thompson v. Finch, 8 D. M. G., 560. 
 4 1 Swanst., 1. 
 
196 WALKER r. SYMONDS. 
 
 LECTURE against Griffith and Syrnonds, to set aside a compromise of 
 ^ ** the breach of trust on the ground that it had been fraudu- 
 lently obtained, was dismissed, Sir William Grant, M. R., 
 considering that the fraud had not been proved. His 
 Honor said, p. 41 : " What are the transactions ? The money 
 had been properly laid out ; it had been paid in without any 
 act of the trustees ; the trustees did no act to call in the 
 money or change its situation ; they were obliged to receive 
 it ; so far they were blameless. It came to Donnithorne's 
 hands, and the trustees were not to blame in letting it come 
 to his hands ; but they might have afterwards made them- 
 selves responsible, by merely not doing what was incumbent 
 on them ; by permitting the money to remain a considera- 
 ble time in the hands of their co-trustee, they might, with- 
 out any positive act on their part, have made themselves 
 liable ; that will depend on the degree and extent of their 
 laches in suffering the money to remain in the hands of the 
 trustee. Brice v. Stokes 1 proceeds upon the doctrine, that 
 a trustee may become liable by knowing that his co-trustee 
 had the money, and leaving it there. They being autho- 
 rized to put the money out on mortgage, it would be rather 
 hard to say they were guilty of laches by giving Donnithorne 
 a little time to find a mortgage, taking his bond in the 
 meantime." On appeal the decision of Sir William Grant 
 was reversed, and an enquiry was directed as to the acts of 
 the trustees as to the receipt and placing out of the trust- 
 moneys up to the date of Donnithorne's death. On the case 
 coming on for further directions, Lord Eldon said : 2 " The 
 case comes back with a report stating a clear breach of 
 trust in leaving the trust-fund in the situation represented 
 from 1791 to 1793 and from 1793 to 1795. The report 
 states that the money was laid out with the consent of the 
 trustees, in India bills, payable to Donuithorne ; a palpable 
 breach of trust, by placing the fund under his control, secured 
 by little more than a promissory note payable to himself. It 
 was probable that in 1793 he would receive the money, and 
 it would be lodged in his hands, and I repeat, that although 
 the Court in directing an inquiry will proceed as favour- 
 ably as it can to trustees who have laid out the money on 
 security from which they cannot with activity recover it, 
 yet no Judge can say that they are not guilty of a breach 
 of trust, if they suffer it to lie out on such a security during 
 
 1 11 Ves., 319. - Page 65. 
 
JOINING IN ACT FOR CONVENIENCE. 197 
 
 so long a time. 1 . . . The trustees were guilty of a breach LECTUEB 
 of trust in permitting the money to remain on bills payable VII. 
 
 to Donnithorne alone, and iu leaving the state of the funds 
 
 unascertained for five years. 2 . . . The Master of the Rolls 
 seems to have thought, that the only breach of trust was 
 taking the bond; that was a breach of trust; but he 
 says, and I think rightly, that if he had not found other 
 grounds for dismissing the bill, inquiry would have been 
 necessary. I agree with the Master of the Rolls, that 
 inquiry might, on the principles of this Court, have dis- 
 charged the trustees in given circumstances from breach 
 of trust. If, without further participation, they, in 1795, 
 had found that they, being implicated in no breach of 
 trust till that time, had a co-trustee who had been guilty 
 of a shameful violation of his duty, and immediately 
 exerted themselves to obtain from him a mortgage, which 
 was their object at that time, and used their utmost efforts, 
 instead of filing a bill in this Court against him, which, 
 perhaps, might have destroyed his means of giving security, 
 I should have hesitated long before I charged them, if 
 inquiry had satisfied me that for a simple contract debt 
 due to them they had taken a bond and a mortgage, in- 
 stead of instituting a suit, with the rational hope that by 
 means of the bond and the mortgage they should obtain 
 payment from their co-trustee ; in such circumstances, I 
 should readily agree with the Master of the liolls. But 
 when they take no steps on the arrival of the period at 
 which the bond becomes payable, and choose to communi- 
 cate to the cestui que trust that they have taken a bond, 
 but not what is the effect of it, that is not a communica- 
 tion which can entitle them, iu this stage of the cause, to 
 insist on circumstances of which, if inquiry had been direct- 
 ed, they might possibly have availed themselves for their 
 protection." 
 
 Where a trustee joins in signing a cheque, or does any Trustee 
 other act to place money in the hands of his co-trustee, or joining in 
 a person employed by the trustees in a due course of busi- ' 
 
 ness, for the purpose of being applied in a due execution of 
 the trust, such act being required for the purposes of conve- 
 nience, and the money be lost, if no case of negligence in 
 not making inquiry as to the proposed application of the 
 
 1 Page 67. 2 Page 71. 
 
198 JOINING IN ACT FOR CONVENIENCE. 
 
 LECTURE money, or looking after the application of the money, be 
 VI1 - made against the trustee, 1 he will not be liable. 2 " It will be 
 found to be the result of all the best authorities upon the 
 subject," said Lord Cottenham, 3 " that though a personal 
 representative, acting strictly within the line of his 
 duty, and exercising reasonable care and diligence, will 
 not be responsible for the failure or depreciation of the 
 fund in which any part of the estate may be invested, 
 or for the insolvency or misconduct of any person who 
 may have possessed it, yet if that line of duty be not strict- 
 ly pursued, and any part of the property be invested by 
 such personal representative in funds or upon securities 
 not authorized, or be put within the control of persons who 
 ought not to be intrusted with it, and a loss be thereby 
 eventually sustained, such personal representative will 
 be liable to make it good, however unexpected the result 
 however little likely to arise from the course adopted and 
 however free such conduct may have been from any im- 
 proper motive. Thus, if he omit to sell property when 
 it ought to be sold, and it be afterwards lost without any 
 fault of his, he is liable ; 4 or if he leave money due upon 
 personal security, which, though good at the time, after- 
 wards fails. 5 And the case is stronger if he be himself the 
 author of the improper investment, as upon personal secu- 
 rity, or an unauthorized fund. Thus, he is not liable, 
 upon a proper investment in the 3 per cents, for loss 
 occasioned by fluctuations of that fund. 6 But he is for 
 the fluctuations of any unauthorized fund. 7 So, when the 
 loss arises from the dishonesty or failure of any one to 
 whom the possession of part of the estate has been en- 
 trusted. Necessity, which includes the regular course of 
 business in administering the property, will, in equity, 
 exonerate the personal representative. But if without 
 such necessity he be instrumental in giving to the person 
 failing possession of any part of the property, he will be 
 
 1 Underwood v. Stevens, 1 Mer., 713 ; Hanbury v. Kirkland. 3 Sim., 
 265 ; Brice v. Stokes, 11 Ves., 319 ; Hewettv. Foster, 6 Beav., 261. 
 
 2 Bacon v. Bacon, 5 Ves., 331 ; Terrell v. Matthews, 11 L. J., N. S., Ch., 
 31 ; Broadhurst v. Bahjuy. 1 Y. and C. C. C., 28. 
 
 3 Clough v. Bond, 3 My. and Cr., 496. 
 
 4 Phillips v. Phillips, Freem. Ch. Ca.. 11. 
 
 5 Powell v. Evans, 5 Ves , 839 ; Tebbs v. Carpenter, 1 Madd., 290. 
 
 6 Peat v. Crane, 2 Dick, 499. 
 
 7 Hancom . Allen, 2 Dick, 498 ; Howe v. Earl of Dartmouth, 7 Ves., 
 137. 
 
EXECUTOR JOINING IN RECEIPT. 199 
 
 liable, although the person possessing it be a co-executor or LECTUBB 
 co-administrator." l vn. 
 
 Formerly it was considered that an executor joining in a Ex ^> r 
 receipt for conformity made himself liable ; for there is no joining in 
 necessity for him to do so, as the receipt of one executor is a 
 sufficient discharge, whereas the receipt of one trustee is not. 2 
 But this rule has since been modified. In Walker v. 
 Symonds 3 Lord Eldon said : " Without going through all 
 the cases, it is obvious that primd facie there is this distinc- 
 tion between executors and trustees, that one executor can, 
 and one trustee cannot, give a discharge : and it may fre- 
 quently happen, as in Brice v. Stokes* it actually happened, 
 not only that one trustee cannot give a discharge, but that 
 the instrument of trust provides that there shall be no dis- 
 charge without an act in which all the trustees join. Exe- 
 cutors seem formerly to have been charged on much stricter 
 principles, if they joined unnecessarily, though without tak- 
 ing control of the money ; that rule is now altered : whether 
 the alteration is wholesome may be a question. It may 
 be laid down now, as in Brice v. Stokes, 5 that though one 
 executor has joined in a receipt, yet whether he is liable shall 
 depend on his acting. The former was a simple rule, that 
 joining shall be considered as acting ; but in the cases since 
 the rule, that joining alone does not impose responsibility 
 scarcely two Judges agree." And in Joy v. Campbell* 
 Lord Redesdale said : " The distinction seems to be this, 
 with respect to a mere signing, that if a receipt be 
 given for the mere purpose of form, then the signing will 
 not charge the person not receiving ; but if it be given 
 under circumstances purporting that the money, though 
 not actually received by both executors, was under the 
 control of both, such a receipt shall charge ; and the true 
 question in all these cases seems to have been, whether the 
 money was under the control of both executors. If it was 
 so considered by the person paying the money, then the 
 joining in the receipt by the executor, who did not actually 
 receive it, amounted to a direction to pay his co-executor ; 
 
 1 Langford v. Gascoyne, 11 Yes., 333 ; Lord Shipbrook r. Lord Hinchin- 
 brook, 11 Ves., 252; Underwood v. Stevens, 1 Mer., 712; Hanbury v. 
 Kirkland, 3 Sim., 265. 
 
 See Lewin, 7th Edn., 246 ; and the notes to Townley v. Sherborne, 
 2 Wh. and Tudor. 3rd Ed., 820, where the earlier cases are collected. 
 
 3 3 Swanst.. 3. 4 11 Ves.. 319. s Ibid. 
 
 1 Sch. and Lef.. 341. 
 
200 EXECUTOR JOINING IN RECEIPT. 
 
 LECTUUE for it could have no other meaning. He became responsible 
 ^ n> for the application of the money just as if he had received 
 it." And in Doyle v. Blake l his Lordship said : " The true 
 consideration in a question of this kind is, whether the 
 executor who merely joins in the receipt had a control, 
 and his joining in the receipt is evidence of that control, 
 although the money was actually received by the other." 
 The principles, therefore, which govern the case of trustees 
 joining for conformity will apparently be applicable, and 
 an executor will not be responsible for joining, so long us 
 he acts subsequently in a proper manner. Thus an executor 
 indorsing a bill of exchange, 2 or joining in a sale of securi- 
 tieis 3 in order to enable the co-executor to receive the 
 money, will not be liable in the absence of negligence. 
 
 Executor Executors joining in a transfer to a co-executor upon his 
 
 must ascer- ,. ,1 ,1 . /> ,-, 
 
 tain that representation that the money is required lor the payment 
 money re- of debts, must take care to ascertain that the money is really 
 quire ' required for that purpose, and will be liable for negligence if 
 it turns out that it was not wanted, or for the portion not 
 applied to that purpose, but not for any portion properly ex- 
 pended. The person to whom the representation is made, 
 has imposed upon him at least ordinary and reasonable dili- 
 gence to inquire whether the representation is true. 4 In 
 Lord Shipbrook v. Lord Hinchinbrook? which was a case 
 of this nature, Lord Eldon said : " This case depends upon 
 the principle applicable to trustees. The fund being 
 vested in the names of all the executors, it was necessary 
 that all should join in the act which placed the pro- 
 perty in the hands of one of them ; and my mind had 
 reached this conclusion, that, as these executors could not 
 be held answerable for the balance, for which their co- 
 executor was to account separately, they had a right to 
 contend, at least, that they should be allowed so much of 
 the fund as had been applied to the purpose to which it 
 ought to have been applied, as they might have been com- 
 pelled so to apply it These executors ought at 
 
 least to have made some inquiry of their co-executor as to 
 what had been doing in the administration. If, making 
 that inquiry, they were misled, that is a distinct case ; but, 
 
 1 2 Sch. and Lef., 242. - Hovey v. Blakeman, 4 Ves., 608. 
 
 3 Chambers v. Minchin. 7 Ves., 197. 
 
 4 Lord Shipbrook v. Lord Hinchinbrook. 11 Ves., 254 ; Underwood r. 
 Stevens. 1 Mer., 712 ; Hewett v. Foster. 6 Beav., 25'J. 
 
 s 16 Ves., 477. 
 
LIABILITY OF CO-EXECUTOR. 201 
 
 making no inquiry, they are satisfied with the information LKCTURK 
 which proves groundless, that he wants the money for the v " 
 purpose of paying debts. They ought to have inquired 
 how that could be ; and though it is not a consequence 
 that they might not place the remainder of the property in 
 his hands, it must surely be at their risk, if they were 
 aware that he had been not acting according to his trust, 
 but grossly violating it." l 
 
 The rule that a trustee as such is not liable for a breach Executor 
 of trust committed by his co-trustee, extends to co-execu- not Iiab ' e 
 tors. 2 But it is otherwise if he has concurred in the misap- Mt'of^o-* 
 plication of the fund. 3 In Muckloiv v. Fuller 4 a trustee, executor - 
 who as executor had proved the will, was held to be liable 
 to make good a loss incurved by his allowing a debt from 
 his co-executor to remain outstanding, although the will 
 contained the usual indemnity-clause. In Booth v. Booth, 6 
 a testator bequeathed his estate to his partner Booth and to 
 one Batkin upon trust to invest it for the benefit of his wife 
 and children. Both Booth and Batkin proved the will, and 
 Booth retained the testator's moneys in the trade, and ulti- 
 mately they were lost. Batkin took no active part in the 
 trusts, but was cognizant of the breach of trust, and took no 
 steps to prevent it. It was held, that he was responsible 
 for the consequences of the breach of trust. " The two 
 executors," said Lord Langdale, " proved the will ; they take 
 on themselves the trust and the duty of performing it. 
 From that moment it was their duty to do all that was 
 necessary for the conversion of the estate into money, and 
 to see the dividends duly applied ; but Batkin, unfortu- 
 nately, did not consider that by proving the will he had 
 undertaken any duty, or incurred any responsibility ; he 
 says he proved the will in consequence of the request of 
 the widow r , who informed him that he would not thereby 
 undertake any duty or be responsible for anything. It is 
 important that it should be well understood that no one 
 can safely act in that manner, and that the law will not 
 permit a party to neglect the duty which by proving the 
 will he has undertaken. I am of opinion that he became 
 
 1 Underwood v. Stevens. 1 Mer.. 712; Bick r. Motley. 2 M. and K.. HI 2; 
 Williams r. Nixon. 2 Beav., 472 ; Hewett r. Foster. (5 Beav.. 2f>!i. 
 
 - Hargthorpe /. Milf'orth. Cro. Eliz., 318 ; Biky v. Kemmis, 1 L. andG. r 
 f : Sugd.. 122 : Cottam r. E. C. R.. 1 J. and H.. 243. 
 
 3 Hovey r. Blakenian, 4 V us., 51)6 ; Brice c. Stokes, 11 Ves., ;>!'.). 
 
 4 Jac.. 198. * 1 Beav., 125. 
 
 26 
 
202 LIABILITY OF CO-EXECUTOR. 
 
 LECTURE liable for the performance of the trusts, and for any conse- 
 VI1 - quences arising from a breach of them. Part of the testa- 
 tor's property was engaged in trade ; that trade ought to 
 have been put an end to, and the property invested. Batkiri, 
 it appears, went to the place of business from time to time, 
 and it is, therefore, clear that he knew that what ought to 
 have been done was not performed. He acquiesced, week 
 by week, and year by year, in the breach of trust which his 
 co-executor was committing. There is no corrupt motive 
 no receipt of money which he misapplied to be attri- 
 buted to him, but he undertook the performance of a duty 
 which he did not perform. This is no small blame : a man 
 cannot be allowed to neglect a duty which he has under- 
 taken. He permitted his co-executor to carry on the trade, 
 and consequently must be considered, in this Court, a party 
 to this breach of duty. It is said, in extenuation, that he 
 did this from the best motives; he thought the brother of 
 the testator was the proper person to carry on the busi- 
 ness ; he thought there would be more profit made by this 
 mode of dealing with the property, and that it was more 
 advantageous for the children. All this might have been 
 very right to do, and to acquiesce in, if he had undertaken 
 to make good any loss which might occur in the course of 
 the experiment; he could not, however, so act without 
 incurring that responsibility if a loss occurred. I am of 
 opinion, on the authorities and on the established rules 
 of the Court, to which it is not necessary to refer, that 
 a trustee who stands by and sees a brearh of trust commit- 
 ted by his co-trustee, becomes responsible for that breach 
 of trust." 
 
 The authorities on the question of the liability of an 
 executor who allows his co-executor to retain the assets 
 Styles v. of the testator's estate were discussed in the case of Styles 
 Gu y- v. Guy l by Lord Cottenham. His Lordship, after referring 
 to various cases, said : " In the reported cases, the loss 
 appears to have been of property received by the default- 
 ing executor after the testator's .death, and not of a debt 
 due from him before that event ; but this cannot furnish 
 any distinction against the co-executor : in the latter case, 
 a debt due from an executor constitutes part of the assets ; 
 but over which the co-executor could not have had any 
 control ; whereas he had the means of watching, and, if 
 
 1 Mac. and G.. 422. 
 
STYLES r. GUY. 
 
 necessary, of interfering with tbe receipt by the defaulting 
 executor of assets after the death. His being passive VH 
 cannot be an immunity for him in the case of assets re- 
 ceived, and not in the case of a debt retained ; but how 
 was this immunity consistent with the admitted liability 
 of all executors for losses from negligence, and inactivity 
 in not calling in debts due to the estate ? Could passiveness 
 be a protection in the case of property lost in the hands 
 of a co-executor, but an offence in the case of property 
 lost in the hands of other debtors to the estates ? The 
 liability in the latter case arises from the soundest principle. 
 If a person named executor does not choose to accept the 
 office, he has only to renounce, or, at least, to abstain from 
 proving ; but if he proves, he thereby accepts the office, 
 and becomes bound to perform the duties of it, and is 
 liable for the consequences of his neglecting to perform 
 them. Of these duties a principal one is to call in and col- 
 lect such parts of the estate as are not in a proper state 
 of investment. If he knows, or has the means of know- 
 ing, that part of the estate is not in a proper state of in- 
 vestment, but is held upon personal security only, and 
 not necessarily so for the purposes of the will, is it not 
 part of the duty he has undertaken, to interfere and to 
 take measures, if necessary, for putting such property in 
 a proper state of investment ; or is it no part of his duty 
 because the property is in the hands of a co-executor, and 
 not of any stranger to the estate ? It is impossible to 
 find any principle for such a distinction .... There can- 
 not be one rule applicable to a portion of the estate given 
 to the executor upon particular trusts, and another rule 
 applicable to another portion of the estate constituting 
 the residue given to the executor for the general pur- 
 poses of the will. In both cases, the executors are trustees 
 of the funds they are to administer for the purposes speci- 
 fied, and their responsibility with respect to each of such 
 funds must be the same. . . . From what I have already 
 said, it will have been seen that I approve of the principle 
 of the decisions in Nuckloiv v. Fuller, 1 Booth v. Booth, 2 and 
 Lincoln v. Wright, 3 and that I cannot discover any prin- 
 ciple for distinguishing between losses by not calling in 
 debts due from debtors to the estate or balances due from 
 executors. These cases establish, that it is the duty of all 
 
 1 Jac., 198. 3 1 Beav., l->5. * 4 Beav.. 427. 
 
204 
 
 STYLES V. GUY. 
 
 LKCTURE executors to watch over, and, if necessary, to correct the 
 VII< conduct of each other, and the moment that is established, 
 all ground of distinction between the two classes of cases 
 ceases. Finding, therefore, a principle adopted and acted 
 upon for many years and in many decisions, of the justice 
 :md grounds of which I fully approve, I cannot feel any 
 disposition to shake its authority, because I cannot recon- 
 cile it with dicta and doctrines of a much earlier date res- 
 pecting the security of an executor who is passive. I have 
 discussed this case much more at large than any difficulty 
 would seem to warrant, because I thought it material to 
 draw the attention of those who may hold the office of 
 executors, to the doctrine that they cannot safely rely 
 upon what they may find in the earlier cases, laying it 
 down that a devastavit by one of two executors shall not 
 charge his companion, provided he has not intentionally 
 or otherwise contributed to it. The later authorities to 
 which I have referred must show them that passive ness 
 will, in many cases, furnish no protection ; but that neg- 
 ligence and inattention in not interfering with, and 
 taking proper measures to prevent or correct the improper 
 conduct of their co-executor, may subject them to respon- 
 sibilities from which the language of the earlier cases 
 might lead them to suppose they were exempt. The co- 
 executors appear, in this case, to be free from any moral 
 blame ; they derived no benefit, but have suffered much 
 from the breach of trust of their co-executor ; but they 
 knew that part of the testator's property remained in his 
 hands, and that it was, therefore, not in a proper state of 
 investment : they knew, therefore, that a breach of trust 
 by him was actually in operation, and, excepting some 
 unprofitable applications for accounts and a settlement, 
 nothing was done by them to secure this property so known 
 by them to be in peril." 
 
 Under a decree against executors for the common accounts, 
 each is chargeable only with his actual or constructive re- 
 ceipts, and, therefore, in such a suit an executor will es- 
 cape liability by showing, either that he has been only pas- 
 sive, or that he has only acted so far as it was necessary to 
 enable his co-executor to administer the estate ; but it is 
 otherwise where he is sought to be made liable for wilful 
 neglect and default. 1 
 
 Liability 
 under 
 decree for 
 common 
 account. 
 
 1 Terrell r. Mathews, 1 Mac. and G., 433. 
 
LIABILITY OF CO-EXECUTOR. 205 
 
 The principle by which an executor is made liable if he LECTURE 
 joins with his co-executor in a receipt, is applicable when he V11 - 
 has received any portion of the testator's assets and voluntari- Unneces- 
 ly and unnecessarily hands it over to his co-executor. 1 So the 8ar ''y 
 executor is liable if he sanctions the property remaining in Jvera 
 the hands of his co-executor, 2 or does any act by which 
 the co-executor gets absolute possession of the assets, and 
 which but for that net he could not have obtained posses- 
 sion of, such as handing over securities, 3 drawing or en- 
 dorsing a bill of exchange. 4 
 
 When it was unnecessary that he should do so, the pay- 
 ment over in order to charge must be unnecessary. Under 
 certain circumstances, it may be necessary that one exe- 
 cutor should pay over money to his co-executors, and in 
 such a case no liability will attach ; as for instance, if the 
 payment is made to enable the executor who receives the 
 money to discharge debts payable where he resides, 5 or 
 to carry on a trade, 6 or where the executor has no legal 
 right to retain the money." 
 
 So, the indorsing a bill of exchange made payable to two 
 agents who, on the death of the principal, became his 
 executors in order to enable one to receive the money, was 
 held not to charge the one who did not receive. 8 
 
 If by agreement between the executors one is appointed 
 to receive and intermeddle with such part of the estate and 
 another with such a part, each of them will be charge- 
 able with the whole, because the receipts of each are pur- 
 suant to the agreement made betwixt both. 9 
 
 An executor is not liable for any portion of the fund 
 which has been properly applied. 10 
 
 1 Townsend r. Barber. 1 Dick. 356: Langford v. Gascoyne, 11 Ves., 
 333 ; Cloiigh v. Dixon. 3 M. and C.. 41)7. 
 
 2 Doyle r. Blake, 2 Sch. and Lef.. 231 ; Lees r. Sanderson. 4 Sim., 
 28 ; Styles v. Guy, 1 Mac. and G.. 42i>. 
 
 3 Candler v. Tillett. 22 Beav., 257 
 
 4 Sadler v. Hobbs, 2 Bro. C. C., 114 ; Hovey r. Blakeman, 4 Ves . 608. 
 
 5 Bacon v. Bacon, 5 Ves., 331 ; Joy r. Campbell, 2 Sen. and Lef., 
 341 
 
 6< Toplis r. Hurrell, 19 Beav., 423 ; Home r. Pringle, 8 C. and F., 288. 
 
 7 Davis v. Spurling. 1 II. and My., 64. 
 
 8 Hovey r. Blakeman. 4 Ves.. 608. 
 
 9 Gill r. The Attorney-General, Hard, 314 ; Moses r. Levi, 3 Y. and 
 C. Ex., 359. 
 
 10 Lord Shipbrook r. Lord Hinchinbrook. 11 Yes.. 252 ; (3. C.) 16 Ves., 
 477 : Underwood v. Stevens. 1 Mer., 712 ; Briee v. Stokes, 11 Ves., 328 ; 
 Hewett v. Foster, 6 Beav., 259. 
 
206 SEVERAL LIABILITY OF CO-TRUSTEES. 
 
 LECTURE If a trustee becomes aware that his co-trustee threatens, 
 Yn - or intents to commit a breach of trust, it is his duty to 
 Restrain- take steps to prevent it, and, if necessan', to apply for au 
 ing intend- injunction under s. 54 of the Specific .Relief Act, 1 of 1877. 
 of trust? If a breach of trust has been committed, the trustee should 
 institute proceedings against the co-trustee to compel him 
 to restore the property to its proper condition. 1 
 
 If a trustee conceals a breach of trust, 3 or refrains from 
 taking proceedings, 4 he will be liable for loss. 
 
 Several lia- There is no primary liability in respect of a breach of 
 co-trustees, trust, all parties to it being equally liable for the whole 
 of the loss occasioned b}' the wrongful act or default, and 
 it is no objection to a suit brought by parties seeking re- 
 lief against a breach of trust, that one of the defendants 
 against whom no relief is prayed, may have been a party 
 to such breach of trust. 5 
 
 If, however, it appears that one trustee took a more active 
 part in the breach of trust, the loss as between the trustees 
 may be thrown upon the more guilty party, who, or if he 
 be dead, his estate, may be ordered to indemnify the passive 
 trustee. 6 
 
 Limitation The joint liability of trustees may be taken away by 
 
 of liability. ex p ress contract, as where it is agreed each trustee shall 
 
 receive, and only be answerable for a certain proportion of 
 
 the trust-estate, in such a case the trustees will only be 
 
 liable for the amount in their own custody. 7 
 
 Where several trustees are involved in one common breach 
 of trust, a cestui quc trust, suffering from that breach and 
 proving that the transaction was neither authorized nor 
 adopted by him, may proceed against either or all of the 
 trustees. 8 
 
 Contribu- Should there be no distinction between the guilt of the 
 tion. trustees, and one of them has been compelled to tear the 
 
 1 See also In re Chertsey Market, 6 Price, 279. 
 
 2 Franco v. Franco, 3 Ves., 75 ; Earl Powlet r. Herbert, 1 Ves. J., 297. 
 8 Boardman v. Mosman, I Bro. C. C., 68. 
 
 4 Brice r. Stokes. 11 Ves., 319 ; Walker v. Symonds, 3 Sw., 41 ; Booth 
 r. Booth, 1 Beav., 125 : Williams v. Nixon, 2 Beav., 472. 
 
 5 Wilson v. Moore, 1 M. and K.. 127 ; affd. on appeal, ib.. 337. 
 
 6 Lockhart v. Reily, 1 DeG. and J.. 476 ; Priestman v. Tindall. 24 Beav., 
 244; Butler r. Butler. L. R.. 5 Ch. Div., 554. 
 
 7 Birls v. Betty, 6 Madd. 90. 
 
 8 Walker >:. Symouds, 3 Swanst.. 75 ; Attorney-General r. Wilson, 1 C. 
 and Ph., 28 ; Fletcher i: Green. 33 Beav., 426 ; Ex parte Norris, L. R., 
 4 Ch., 280. 
 
CONTRIBUTION BETWEEN TRUSTEES. 
 
 whole, or a greater portion of the loss, he may institute a LECTDBE 
 suit for contribution against his co-trustees. * If any of 
 the cestuis que trustent have participated in the breach of 
 trust, they must be made parties. 2 A separate suit must 
 be instituted ; contribution cannot be enforced in a suit 
 against the trustee to make good the breach of trust. 3 
 Where a decree had been passed against several defendants 
 with costs, which had been paid by one of the defendants, 
 the Court, on consent, decreed contribution in respect of 
 the costs. 4 If, however, the trustees have acted fraudu- 
 lently, the Court will not interfere to enforce contribution, 
 upon the principle that there can be no contribution be- 
 tween wrong-doers upon entire damages for a tort. 5 
 
 If there is any fund in Court in the suit, which is pay- 
 ahle to the trustee against whom contribution is sought, the c^"'" 1 in 
 Court will impound the fund in order to make good what 
 is due from him. Thus, if a fund in Court is set apart to 
 pay a legacy bequeathed to one of two defaulting trustees 
 who has paid no part of the balance due from him, the 
 other trustee who has paid the whole is entitled to ask 
 the Court to impound the fund, in order to make good the 
 share of the debt which the person who was both trustee 
 and legatee ought to have paid. 6 
 
 Where several defendants are involved in a breach of Costs, 
 trust, the Court, in decreeing relief in respect of it, de- 
 crees the costs of the suit against them all, on the prin- 
 ciple of giving the plaintiff the greater security for the 
 payment, and without regard to the relative degrees of 
 culpability in the defendants. 7 
 
 A cestui que trust is often abroad, and then the trustee Trustee 
 cannot be sure, that at the time of payment under a P^B 
 power-of-attorney the cestui que trust is alive ; and if he power-oi- 
 were dead, the power-of-attorney would be at an end. If, a omey. 
 however, the cestui que trust give to the trustee a written 
 
 1 Birks r. Micklethwait. 33 Beav., 409 ; Wilson r. Goodman. 4 Hare. 
 63 : Jesse r. Beunett. 6 D. M. G., 609 ; Fletcher r. Green, 33 Beav., 513 ; 
 Attorney-General r. Dallgars, >'/;.. 624. 
 
 2 Jesse r. Bennett. 6 D. M. G.. 609. 
 
 3 Fletcher r. Green. 33 Beav.. 513. 
 
 4 Pitt r. Bonner. 1 Y. and C. C. C.. 670. 
 
 5 Lingard r. Bromley. 1 V. and B.. 114 ; Tarleton r. Hornby. 1 Y. and 
 0. Ex.. 330 ; Attorney-General v Wilson. 7 Cr. and Ph., 28 ; Suput Singh 
 r. linrit Tewari. I. L. R.. 5 Calc.. 7 I'd. 
 
 6 Birks r. Micklethwait. 33 Beav.. 409. 
 
 7 Lawrence r. Bowie. 2 Phill.. 140. 
 
208 PAYMENT TO CESTU1 QUE 
 
 LKOTURE direction by deed, or otherwise, to pay money to a parti- 
 Vil< cular person, any payment made under such written 
 direction, until it be revoked, and the revocation comes to 
 the knowledge of the trustee, would be binding on the 
 <<*{ u I <j"<' 1 rust's executor. 1 A convenient course, in cases 
 of this kind, is to transmit the money to a bank abroad, 
 making it payable to the order of the cestui que truxf ; 
 but where the cestui que trust is unable to receive his 
 money in person, his direction should be obtained before 
 any particular mode of remittance is adopted. 2 In cases 
 to which English law is applicable, no trustee, executor, 
 or administrator making any payment, or doing any act 
 bond fide, under or in pursuance of any power-of-attorney, 
 shall be liable for the money so paid, or the act so done, 
 by reason that the person who gave the power-of-attorney 
 was dead at the time of such payment or act, or had done 
 some act to avoid the power ; provided that the fact of 
 the death, or of the doing of such act as last aforesaid, at 
 the time of such payment or act bond fide done as afore- 
 said by such trustee, executor, or administrator, was not 
 known to him : provided always that nothing herein con- 
 tained shall in any manner affect or prejudice the right of 
 any person entitled to the money against the person to 
 whom such payment shall have been made ; but that such 
 person so entitled shall have the same remedy against 
 such person to whom such payment shall be made, as he 
 would have had against the trustee, executor, or adminis- 
 trator, if the money had not been paid away under such 
 power-of-attor n ey , 3 
 
 payment When any beneficiary's interest in the trust-property 
 ^''""of becomes vested in another person, and the trustee, not 
 transfer, having notice of the vesting, pays or delivers trust-pro- 
 perty to the person who would have been entitled thereto 
 in the absence of such vesting, the trustee is not liable 
 for the property so paid or delivered. 4 For instance, if a 
 cestui que trust mortgages his reversionary interest in a 
 trust-fund, the trustee should be informed of the charge 
 by the mortgagee, and if he is not informed, and the 
 
 / 
 
 trustee remains without notice of the charge and pays 
 
 1 Lewin, 7th Edn.. 323. citing Vance . Vance. 1 Beav.. 605 ; Harrison 
 r. Asher. 2 DeG. and 8m., 436 ; Kiddill r. Farnell, 3 Sm. & Gift., 428, 
 - Lewin. 7th Edn., 323. 
 
 3 Act XXVIII of 186(5.8. M. 
 
 4 Trust's Bill. s. 29. referring to Underbill. 156. 
 
INDEMNITY-CLAUSE. 209 
 
 over the sum charged to the cestui que trust, the trustee LECTURE 
 will not be liable to the mortgagee. 1 vn - 
 
 An instrument of trust drawn according to the English ind^Tity- 
 form, whether a will or a deed, usually contains a clause clause, 
 declaring that one trustee shall not be answerable for the 
 receipts, acts, or defaults of his co-trustee. But the proviso, 
 while it informs the trustee of the general doctrines of 
 the Court, adds nothing to his security against the liabilities 
 of his office. 2 A Court of Equity infuses such a clause 
 into every instrument creating a trust ; it comes, therefore, 
 to little more than what a Court of Equity will do with- 
 out any direction ; 3 and a person can have no better right 
 upon the expression of what would, if not expressed, be 
 implied. 4 
 
 Such a clause only protects a trustee from liability for 
 losses when his acts have been justifiable; as for instance, 
 if he invests in a security authorized by the instrument 
 of trust, and the security fails, he will not be liable. 5 
 
 In Bone v. Cook 6 a testator bequeathed certain property 
 to B and 0, and directed them to sell it and invest the 
 proceeds for the benefit of D. B and C sold the property, 
 and the purchase-money was received by B and retained in 
 his hands. After the expiration of two years, C called 
 upon B to make the investment. He was unable to do so, 
 became insolvent, and the money was lost. C was held 
 liable, although there was a provision in the instrument 
 creating the trust that the trustees should not be answer- 
 able for any trust-moneys further than each person for 
 what he should actually receive. 
 
 In order to exempt a trustee from liability for a breach 
 of trust in respect of any of the acts to which I have 
 referred, by force of an express declaration in the instru- 
 ment of trust, the declaration must be of the very strong- 
 est kind ; and no declaration, however strong, can exempt 
 a trustee from liability if he has been guilty of gross mis- 
 conduct. In Wilkins v. Hogg, 1 a suit against two of three 
 trustees, to make good trust-moneys, &c., they had allowed 
 their co-trustee to receive, was dismissed with costs, the 
 instrument creating the trust having, besides the usual in- 
 demnity-clause, provided " that any trustee who should 
 
 1 See Jones r. Gibbons, 9 Ves., 410 ; Fortescue v. Barnett, 3 M. and K.. 36. 
 
 2 Lewin, 7th Edn.. 252. 5 Rehden r. Wesley, 29 Beav., 213. 
 * Dawson v. Clarke. 18 Ves.. 254. 6 M'Clel.. 168. 
 
 4 Worrall v. Harford, 8 Ves., 8. 7 3 GiflL 116. 
 
210 INDEMNITY-CLAUSE. 
 
 LECTURE pay to his co-trustee, or enable him to receive moneys for 
 vn - the general purposes of the will, shall not be obliged to 
 see to the due application thereof, or be responsible by 
 express or implied notice of the misapplication." 
 
 Section 37 of Act XXVIII of 1866 provides, in cases 
 to which English law is applicable, that every deed, will, 
 or other instrument creating a trust, either expressly or by 
 implication, shall, without prejudice to the clauses actually 
 contained therein, be deemed to contain a clause in the 
 words and to the effect following, that is to say, " that 
 the trustees or trustee for the time being of the said deed, 
 will, or other instrument, shall be respectively chargeable 
 only for such money, stocks, funds, and securities as they 
 shall respectively actually receive, notwithstanding their 
 respectively signing any receipt for the sake of conformity, 
 and shall be answerable and accountable only for their 
 own acts, receipts, neglects, or defaults, and not for those of 
 each other, nor for any banker, broker, or other person with 
 whom any trust-moneys or securities may be deposited, 
 nor for the insufficiency or deficiency of any stocks, funds, 
 or securities, nor for any other loss, unless the same shall 
 happen through their own wilful default respectively; 
 and also that it shall be lawful for the trustees or trustee, 
 for the time being, of the said deed, will, or other instru- 
 ment, to reimburse themselves or himself, or pay or dis- 
 charge out of the trust premises all expenses incurred in 
 or about the execution of the trusts or powers of the said 
 deed, will, or other instrument." 
 
LECTURE VIII. 
 
 RIGHTS AND POWERS OF TRUSTEES. 
 
 Custody of title-deeds Right of trustee to reimbursement Costa Expenses 
 of management Accounts Advances by trustee Wrongful act of agent 
 
 Repairs Lien for expenses Agents have no lien Interest on advances 
 
 Advances in respect of different trusts Personal liability of cesttti 
 que trust to reimburse Indemnity Suit to recover advances Public 
 funds Indemnity from gainer by breach of trust Suit to administer 
 trusts Appeal Costs Application to Court for opinion in management 
 of trust-property Hight to settlement of accounts General authority of 
 trustee Advice of cestui que trust What acts trustee may do Repairs 
 
 Winding up estate Maintenance Compounding or releasing debts 
 How trust-property may be sold Conditions of sale Buying in 
 Power to convey Power to vary investment Power to apply property 
 for maintenance Minors' Act Liability of purchaser to see to applica- 
 tion of purchase-money Fines and Recoveries Act Trustees' and Mort- 
 gagees' Powers Act To whom purchase-money payable Charge of 
 debts Notice of breach of trust Suspension of trustee's powers after 
 decree. 
 
 THE trustees are entitled to have the custody of the Custody of 
 instrument creating the trust, and of all muniments of title tule - deeits ' 
 relating to the trust-estate, and it will be a breach of their 
 duty if, where there is a trust to perform, they willingly 
 suffer the title-deeds or muniments relating to the trust- 
 property to get out of their possession, 1 it being, as we have 
 seen, 2 their duty to maintain and defend all suits neces- 
 sary for the protection and preservation of the trust-pro- 
 perty, as for instance, to sue tenants for rent, and for this 
 purpose they must have the documents relating to the 
 trust. 3 Moreover, if a cestui que trust for life were allowed 
 to have the custody of the title-deeds, he might mortgage 
 or convey the trust-property for valuable consideration 
 without notice, and the interests of remaindermen would 
 be injured. In such a case the trustees might, if it ap- 
 peared that they acted fraudulently or with gross negli- 
 gence, be made personally responsible not only to the other 
 
 1 Meux v. Bell, 1 Hare, 95. " Ante. p. 137. 
 
 3 Goode v. Burton. 11 Jur., 851 ; Garner v. Hannyngton, 22 Beav., 627 ; 
 Stanford r. Roberts, L. R., 6 Ch., 310. 
 
212 REIMBURSEMENT OF TRUSTEES. 
 
 LECTURE cestuis que trustent, but to third parties. 1 It being the right 
 
 "VIIL o f t^ trustees to have possession of the title-deeds, they 
 
 may sue to have them delivered up. 2 Trustees are bound 
 
 to produce all cases and opinions of counsel, not intended 
 
 for their own defence, to the cestui que trust. 3 
 
 A trustee, as we shall see hereafter, has no right, in the 
 reimburse- absence of express stipulation, to charge anything for the 
 ment. trouble he incurs in the management of the trust. But 
 he is entitled to be reimbursed for expenses out of pocket, 4 
 such as the expenses caused by the employment of a 
 bailiff, 5 an agent to collect rents, especially when the estate 
 is at a distance, 6 and of a legal adviser. 7 So he may be 
 reimbursed for fees to counsel 8 and travelling expenses 9 
 if properly incurred. 10 And it is not necessary that the 
 instrument creating the trust should contain an express 
 provision allowing the trustees to charge. 11 
 
 " The first principle of law," said Lord Cottenham, 12 " is 
 of course to reimburse the trustees all expenses properly 
 incurred by them in discharge of the duties of the trust." 
 " It is," said Lord Eldon, " in the nature of the office of a 
 trustee, whether expressed in the instrument of trust or 
 not, that the trust-property shall reimburse him all the 
 charges and expenses incurred in the execution of the 
 trust." 13 The expenditure must have been necessary, or 
 must have been incurred at the request of the cestui que 
 trust. 14 Trustees of a void deed, however, cannot charge 
 
 * o 
 
 costs and expenses incurred by them as against the persons 
 who get the deed set aside, 15 though they will be allowed 
 
 1 Evans v. Bicknell, 6 Ves., 174. 
 
 2 Smith v. Willis. Tay., 159 : see also Lewin, 7th Edn., 581. 
 
 3 Wynne v. Humberston. 27 Beav., 421. 
 
 4 In re Ormsby. 1 B. & B., 191. 
 
 5 Bonithron r. Hockmore. 1 Vern., 316 ; Chambers r. Goldwin, 9 Ves.. 273. 
 8 Godfrey v. Watson. 3 Atk.. 518 : Davis v. Bendy. 3 Madd.. 170 : Stewart 
 
 r. Hoare, 2 Bro C. C., 633 ; Wilkinson v. Wilkinson, 2 S. & S., 237 ; Re 
 Westbrooke, 2 Phillips, 631. 
 
 7 Macnamara v. Jones, Dick. 587 ; Blackford r. Davis, L. E.. 4 Ch.. 304. 
 
 8 Cary, 14 ; Poole v. Pass. 1 Beav.. 600. 
 
 9 Exparte Lovegrove, 3 D. & C.. 763 ; Ex parte Elsee, 1 Mont., 1 ; Ex 
 partc Bray. 1 Rose. 144. 
 
 10 Malcolm v. O'Callaghan, 3 M. & Cr., 62 ; Bridge v. Brown, 2 Y. & C., 
 C. C, 181. 
 
 11 Attorney-General v. The Mayor of Norwich, 2 M. & Cr.. 424. 
 
 12 Feoffees of Heriot's Hospital r. Ross, 12 C & F.. 51i>. 
 
 13 Worrall v. Harford, S Ves., 8 ; see Morrison r. Morrison. 7 D. M. G., 214. 
 
 14 Collinson v. Lister. 20 Beav.. 368 ; Leedham r. Chawner, 1 K. & J., 458. 
 13 Smith v. Dresser, L. R., 1 Eq., 651. 
 
COSTS. 213 
 
 for improvements. 1 If the trustees have been guilty of fraud, LECTURE 
 they will not be allowed their expenses, even if there is a VIII< 
 direction in the instrument of trust directing allowances 
 for expenses. 2 Where trustees were wrongfully appointed, 
 but acted bond fide, and believed themselves to have been 
 duly appointed, they were allowed their costs, charges, and Costa, 
 expenses notwithstanding the defect of title. 3 A trustee 
 who has obtained his costs as between party and party in a 
 suit respecting the trust-fund, will be entitled to charges 
 and expenses reasonably and properly incurred which 
 would not be allowed on taxation. 4 The fact that a trustee 
 has been unsuccessful in litigation either as plaintiff or 
 defendant, will not, in the absence of misconduct, disentitle 
 him to be reimbursed his costs. 5 And a trustee or executor, 
 who is ordered to pay costs to the plaintiff, is entitled, 
 unless he has forfeited his right by some misconduct, to 
 recover from the estate which he has defended, not only 
 the costs which he has incurred to the adversary, but also 
 the costs which he has paid to his own legal adviser. 6 
 He will not be allowed interest on costs paid by him. 7 
 If a suit respecting the trust-fund has been caused by the 
 negligence of the trustees, and d fortiori through their 
 misconduct, or has been instituted in the face of proper 
 advice, 8 they will not be entitled to costs. 9 
 
 A trustee or executor is not entitled to be allowed with- 
 out question the amount of bills of costs which he has paid 
 bond fide, to the legal adviser to the trust, but such bills 
 may be modified by the Court. 10 
 
 Where two executors, defendants in a suit, gave a joint 
 retainer to a firm of solicitors, and in the course of proceedings 
 it was certified that one executor, who had since died insolvent, 
 was indebted to the testator's estate, it was held, that the 
 surviving executor was entitled to be paid out of the estate all 
 the costs for which he was liable, and that the costs incurred 
 
 1 Lewin, 7th Edn., 549, citing Woods v. Axton, W. N.. 1866. p. 207. 
 
 2 Hide . Hay wood, 2 Atk., 126 ; Caffrey v. Darby. 6 Ves., 497. 
 
 8 Lewin, 7th Edn.. 544, citing Travis v. Illingworth, W. N., 1868, p. 206. 
 
 4 Fearns v. Young, 10 Ves., 184 ; Amand c. Bradbourne, 2 Ch. Cas., 138. 
 
 5 Lewin, 7th Edn.. 546. citing Courtney v. Rumley, 6 I. R., Eq., 99. 
 
 9 Lovat r. Eraser. L. R.. 1 Sc. App., 37. 
 
 7 Gordon v. Traill. 8 Price, 416. 
 
 8 Peers v. Ceeley, 15 Beav.. 209. 
 
 9 Caffrey v. Darby. 6 Ves.. 497: see Leedham r. Chawner. 4 K. & J.. 458. 
 
 10 Johnson v. Telford. 3 Russ.. 477 : Allen r. Jarvis, L. R., 4 Ch., GIG. 
 As to taxation, see Lewin. 7th Edii.. 54G. 
 
214 EXPENSES OF MANAGEMENT. 
 
 LECTURE for the deceased executor in taking the account of his debt 
 vm - must be set off against the sura found due from him. 1 
 
 Where, in a suit to set aside a compromise made on behalf 
 of infants by trustees, personal fraud was charged against 
 one of the trustees, and the suit was dismissed with costs to 
 be paid by the next friend, who could not pay, the trustee 
 was held to be entitled to be paid his costs out of the 
 estate, as he had defended the suit for the benefit of the 
 estate, though at the same time he had defended his own 
 character. 2 
 
 Expenses A trustee will be allowed to reimburse himself for neces- 
 ment" 18 *~ sar y expenses incurred in the management of the trust- 
 estate, even though the instrument of trust provides a 
 remuneration for trouble. Thus, where a testator, who gave 
 annuities to his trustees as a recompense for their care and 
 trouble in the execution of the will, died possessed of 
 a number of houses let at weekly rents, the trustees were 
 held to be entitled to employ an agent to collect the rents 
 and to pay him out of the trust-funds. 3 The trustee should 
 Accounts, keep a regular account of the expenses incurred. If he does 
 not, the Courts will order a reasonable allowance, taking 
 care that the remissness and negligence of the trustee in 
 not having kept accounts shall not be encouraged. 4 
 Advances As it is a rule that the cestui que trust ought to save 
 by trustee. ^ Q trustee harmless as to all damages relating to the 
 trust, so within the reason of that rule, where the trustee 
 has honestly and fairly, without any possibility of being 
 a gainer, laid down money, by which the cestui que trust 
 is discharged from being liable for a loss, or from a plain 
 and great hazard of being so, the trustee ought to be repaid. 5 
 If he has a right to protect the property from immediate 
 and direct injury, he must have the same right where the 
 injury threatened is indirect but probable. 6 Thus, in several 
 cases it has been held, that conservators of public works 
 and Municipal Commissioners are entitled to use the trust- 
 funds at their disposal in opposing proposed Acts of Par- 
 liament which would injure the trust-property. 7 
 
 1 Watson v. Row. L. R.. 18 Eq.. 680. 
 
 2 Walters v. Woodbridge. L. R., 7 Ch. Div., 504. 
 
 3 Wilkinson v. Wilkinson, 2 S. & S.. 237 : see Webb v. The Earl of 
 Shaftesbury, 7 Ves., 480. " Balsh r. Hyam. 2 P. Wins. 453. 
 
 5 Lewin, 7th Edn., 547. 6 Bright r. North, 2 Phill.. 220. 
 
 7 Reg. v. Norfolk Commissioners of Sewers, 15 Q. B., 549 ; Attorney- 
 General v. Andrews, 2 Mac. & G.. 225 ; Attorney-General v. Eastlake, 11 
 Hare. 2U5. 
 
LIEN FOR EXPENSES. 215 
 
 Again, if a trustee employs a proper agent to do an act, LECTURE 
 the directing which to be dene was within the due dis- YIIL 
 charge of his duty, and the agent makes a mistake, the wrongful 
 consequences of which subject the trustee to legal liability a <* of 
 to a third party, he is entitled to be indemnified out of ageut ' 
 the trust-estate. 
 
 And trustees have been allowed expenses for acts which Repairs, 
 were reasonable, though perhaps not strictly according to 
 law. 2 But a trustee, though he will be allowed to reim- 
 burse himself for moneys expended in the repair and 
 preservation of the trust-property, will not be allowed to 
 charge for sums laid out in increasing the value of it. 3 
 
 A trustee is entitled to a lien upon the trust-estate for Lien for 
 his out-of-pocket expenses, so long as it remains trust- ex P :n8 ' 
 estate, 4 but not for the expenses of any act not warranted 
 by the trust. 5 He may retain the trust-deeds, 6 and the 
 cestui que trust cannot compel a conveyance until the lien 
 is discharged, and this lien has priority over costs of a 
 suit, 7 or to any charge created by the cestui que trust? 
 
 If a cestui que trust advances money for the purpose of 
 paying a sum properly payable out of the corpus of the 
 trust-funds, he will be entitled to a lien on the corpus for 
 the amount advanced. 9 
 
 But agents and other persons employed by the trustees, Agents 
 such as solicitors, surveyors, &c., have no lien, 10 and except h * ve no 
 in the case of fraud are accountable only to the trustees. 11 
 If the instrument creating the trust expressly directs that a 
 ] (articular individual is to be employed at a salary, there 
 will be a trust in his favour, and he will have a claim for 
 his remuneration, but that can hardly be called a lien. 13 
 It must appear that it was the intention of the author of 
 the trust that the person named should be employed ; a 
 
 1 Benett . Wyndham. 4 DeG. F. & J.. 259. 
 
 2 Attorney-General r. Pearson, 2 Coll., 581. 
 
 3 Sandon r. Hooper. 6 Beav , 248. 
 
 4 Worrall v. Harford, & Ves.. 8 ; Ex parte Chippendale, 4 D. M. G., 19. 
 
 5 Leedham r. Chawner. 4 K. & J.. 458. 
 
 6 Darke v. Williamson. 25 Beav.. 622. 
 * Morison r. Morison. 7 D M. G.. 226. 
 
 8 Me Exhall Coal Co.. 35 Beav., 449. 
 
 9 Todd r. Moorhouse. L. R.. 19 Eq.. f>9. 
 
 10 Worrall r. Harford. 8 Ves., 8 ; Hall r. Laver, 1 Hare, 571 ; Francis v. 
 Francis. 5 D. M. G., 108. 
 
 11 Myler r. Fitzpatrick. 6 Madd., 360 ; Attorney-General v. Earl of 
 Chesterfield. 18 Beav.. 596 : Lee r. Sankey, L. R.. 15 Eq., 204. 
 
 12 See Williams r. Corbett, 8 Sim.. 349 ; Hibbert r. Hibbert, 3 Mer., 
 681 ; Consett r. Bell, 1 Y. & C. C. C., 5G'J. 
 
216 LIABILITY OF CESTUI QUE TRUST TO REIMBURSE. 
 
 LECTURE mere request or recommendation is not sufficient. 1 The 
 VIII. solicitor of trustees may set off payments which have pro- 
 perly beeu made by him in the performance of the trust 
 against his receipts in the same matter. 2 
 
 Interest on A trustee who pays money out of his own pocket in 
 advances, respect of debts is in no worse position than a stranger who 
 
 makes advances, and is entitled to interest on his debt. 3 
 Advances " If a person be trustee of different estates for the same 
 in respect ces t u i que trust under the same instrument, and he in- 
 
 of different . ., . . . 
 
 trusts. curs expenses on account or one estate in respect of which 
 he has no funds, it is presumed that he may apply to 
 their discharge any money which has come to his hands 
 from any other of the estates ; but he would not be justi- 
 fied in mixing up claims under one instrument of trust 
 with those under another." 4 
 
 Personal if the trust-fund fails, and the trustees, acting in good 
 cestui^que faith and within their powers, have expended money for 
 trust to re- the benefit of the trust-estate, they may call upon the 
 rse ' cestuis que trustent personally to reimburse them. " I 
 think," said Turner, L. J., 5 " that where parties place others 
 in the position of trustees for them, they are in equity 
 personally bound to indemnify them against the conse- 
 quences resulting from that position." The money must 
 have been properly expended. 6 
 
 indemnity. A trustee who has incurred a liability in respect of the 
 trust-estate, may call upon the cestuis que trustent to 
 indemnify him against the liability, 7 even before any actual 
 loss has been incurred. 8 
 
 Suit to A. trustee who has expended monies on the trust-estate 
 
 advances. a ^ the request of a cestui que trust, may institute proceed- 
 ings against him, or if he be dead, against his representa- 
 tives, to recover the amount expended, provided that the 
 expenditure was justifiable. 9 
 
 1 Shaw v. Lawless. 5 C. & F., 129 ; Finden r. Stephens, 2 Phill.. 142 ; 
 Knott v. Cottee. ib.. 192. 2 Re Sadd, 34 Beav., 652. 
 
 3 In re Beulah Park Estate, L. R , 15 Eq., 43 ; Finch v. Pescott, L. R., 
 17 Eq.. 554. 
 
 4 Lewin. 7th Edn.. 551. citing Price r. Loaden, 21 Beav., 508. 
 
 5 Exparte Chippendale, 4 D. M. G.. 54. 
 
 6 Leedham v. Chawner. 4 K. & G..458 ; Collinson r. Lister. 20 Beav., 368. 
 
 7 James v. May, L. R., 6 H. L., 333 ; Hemming r. Maddick, L. R., 
 9 Eq.. 175. 
 
 8 Phene r. Gillan, 5 Hare. 1. As to the fund out of which expenses 
 are payable, see Lewin. 7th Edn., 551. 
 
 9 Balsh r. Hyam. 2 P. Wms.. 453 : Ex partc Watts. 3 DeG. J. & S., 
 394 ; Jervis r. Wolferstan, L. R , 18 Eq., 18. 
 
INDEMNITY FROM GAINER BY BREACH OF TRUST. 217 
 
 Funds applied by the Government for the public service LECTURE 
 are not trust-funds in the hands of the persons empowered VIII 
 to disburse them, and the Court has no jurisdiction to take p u bii c 
 any account of the application of such funds. 1 fuiuls - 
 
 A person other than a trustee, who has reaped the benefit indemnity 
 of a breach of trust, must indemnify the trustee to the extent ^i gain " 
 of the amount actually received by such person under the breach of 
 breach ; and where he is a beneficiary, the trustee has a trust " 
 charge on his interest in the trust-property for such amount. 2 
 " Now," said Lord Langdale, 3 " nothing can be more 
 clear than the rule which is adopted by the Court in these 
 cases, that if one party haviug a partial interest in the 
 trust-fund induces the trustee to depart from the direction 
 of the trust for his own benefit, and enjoys that benefit, he 
 shall not be permitted personally to enjoy the benefit of 
 the trust, while the trustees are subjected to a serious 
 liability which he has brought upon them. What the 
 Court does in such a case, is to lay hold of the partial 
 interest to which that person is entitled, and apply it, so 
 far as it will extend, in exoneration of the trustees, who, 
 by his request and desire or acquiescence, or by any other 
 mode of concurrence, have been induced to do the impro- 
 per act." 4 But in such a case the Court will not order the 
 cestui que trust personally to recoup the trustee. 5 
 
 If there is any reasonable question or doubt as to the Suit to 
 persons entitled under the instrument creating the trust, 
 the trustees may institute a suit to have the trusts ad- 
 ministered under the direction of the Court, for they cannot 
 be expected to run any risk. 6 
 
 The decree of the Court of first instance is an indemnity Appeal, 
 to the trustee, and he cannot be made liable for acting under 
 it. If, therefore, he appeals from the decision, it will be at 
 his own risk. 7 And he will be liable for costs, unless there Costs. 
 
 1 Grenville Murray v. The Earl of Clarendon, L. R., 9 Eq., 11. 
 
 - Draft Trust Bill. s. 33. citing Underbill, p. 163 : and see Hobday v. 
 Peters, 28 Beav., 354; Vaughan v. Vanderstegen. 2 Drew., 165. 363; 
 Binks v. Micklethwait, 33 Beav., 409 ; Cooper r. Cooper, L. R., 7 H. L., 53. 
 
 3 Lincoln v. Wright, 4 Beav., 432. 
 
 4 See the authorities. Lewin. 7th Edn., 477. 
 
 5 Raby r. Ridehalgh! 7 D. M. G., 108 ; Walsham v. Stainton, 1 H. and 
 M . 337 ; Butler r. Butler, L. R.. 5 Ch. D., 554 ; 7 Ch. Div.. 116. 
 
 6 Taylor v. Glanville, 3 Madd., 176 ; Goodson v. Ellison. 3 Russ.. 583 ; 
 Campbell r. Home, 1 Y. and C. C. C., 664 ; Gardiner v. Downes. 22 Beav., 
 397 ; Merlin v. Blagrave, 25 Beav., 139. 
 
 7 Rowland r. Morgan, 13 Jur.. 23 ; Tucker v. Horneman, 4 D. M. G., 
 395. 
 
 28 
 
218 
 
 OPINION OF COURT. 
 
 manage- m 
 ment of 
 
 perty. pr 
 
 LECTURE were very good grounds for the appeal, even though he 
 
 VIIL acts without fraud or malice. 1 
 
 Application The Trustees' and Mortgagees' Powers Act 2 provides, in 
 to Court for cases to which English law is applicable, that "any 
 trustee, executor, or administrator, shall be at liberty, 
 without the institution of a suit, to apply by petition 
 to any Judge of the High Court for the opinion, advice, 
 or direction of such Judge on any question respecting the 
 management or administration of the trust-property, or the 
 assets of any testator or intestate. Such application shall 
 be served upon, or the hearing thereof shall be attended 
 by, all persons interested in such application, or such of 
 them as the said Judge shall think expedient. The trustee, 
 executor, or administrator acting upon the opinion, advice, 
 or direction given by the said Judge, shall be deemed, so far 
 as regards his own responsibility, to have discharged his 
 duty as such trustee, executor, or administrator in the sub- 
 ject-matter of such application. Provided, nevertheless, that 
 this Act shall not extend to indemnify any trustee, executor, 
 or administrator in respect of any act done in accordance 
 with such opinion, advice, or direction as aforesaid, if such 
 trustee, executor, or administrator shall have been guilty 
 of any fraud or wilful concealment or misrepresentation in 
 obtaining such opinion, advice, or direction : and the costs 
 of such application as aforesaid shall be in the discretion of 
 the Judge to whom the said application shall be made." 
 These provisions are substantially the same as those of Lord 
 St. Leonards's Act. 3 Under that Statute the Court of Chan- 
 cery in England has advised trustees as to the appropria- 
 tion of a fund for a legacy ; as to advancement, maintenance, 
 and advancement out of capital, change of investments, 
 sale of houses, compromises ; and as to taking proceed- 
 ings. 4 Petitions for the advice of the Court should relate 
 only to the management and investment of trust-property ; 
 the Court will not construe an instrument, or make any 
 order affecting the rights of parties. 5 In In re Mackin- 
 tosh's Settlement? the Court sanctioned the compromise by 
 trustees of a claim depending on foreign law and the 
 
 1 fie Knight's Trust, 27 Beav., 45 ; Lowsonv. Copeland, 2 Bro. C. C., 156. 
 
 2 XXVIII of 1866, s. 43. 
 
 3 22 and 23 Viet., c. 35, s. 30. 
 
 4 Seton on Decrees, 4th Edn.. 493. 
 
 5 Re Lorenz's Settlement, 1 Dr. and Sm., 401 ; and see Re Evans, 
 30 Beav., 232. 
 
 6 42 L. J., Ch., 208. 
 
GENERAL AUTHORITY OF TRUSTEE. 219 
 
 accounts of disbursements on an estate in a foreign country, LECTUBK 
 which accounts the trustees had no means of verifying. 
 
 No appeal lies in England from an order made by a 
 Judge of tirst instance on such a petition, but an opinion 
 has been given by the Lords Justices of Appeal at the re- 
 quest of one of the Vice-Chancellors. 1 
 
 An order made under this section will only indemnify 
 the trustees upon the facts stated in the petition. 2 No affida- 
 vits can be used. 3 It is not necessary that all the trustees 
 should join in the petition, the words are " auy trustee may 
 apply." 4 
 
 After the trust has been completed, the trustee is enti- R 'ght to 
 tied to have his accounts examined and to have a settle- 
 ment of them. He is bound to give accounts if demanded, 
 but giving the accounts he is entitled, to use a familiar 
 phrase, to have them wound up. If the party to receive is 
 satisfied upon the account sent in, that nothing more is 
 coming to him, he ought to close the account and give an 
 acknowledgment which will be equivalent to a release ; on 
 the other hand, if the cestui que trust is dissatisfied with the 
 accounts, he ought to require to have the accounts taken ; 
 he is not at liberty to do neither, and keep an action for an 
 account hanging for an indefinite time over the head of the 
 trustee. 5 
 
 A trustee may do all acts which are reasonable and pro- General 
 per for the realization, protection, or benefit of the trust- of* trustee, 
 property, and for the safety and support of a cestui que 
 trust who is not competent to contract, unless his powers 
 iu the case of a special trust are limited, when he may not 
 go outside them. "Under particular circumstances," says 
 Mr. Lewin, 6 " the trustee is held capable of exercising the 
 discretionary powers of the bond fide proprietor ; for the 
 trust-estate itself might otherwise be injuriously affected. 
 The necessity of the moment may demand immediate deci- 
 sion, while the sanction of the parties who are beneficially 
 interested could not be procured without great inconveni- 
 ence (as where the cestuis que trustent are a numerous 
 class), or perhaps could not be obtained at all (as where 
 
 1 See Seton. 4th Ed.. 493. 2 Re Mockett's Will, Johns., 628. 
 
 1 Re Muggeridge's Trusts. Johns.. 625. 
 
 4 Re Muggeridge's Trusts. Johns., 625. See further, Lewin. 7th Edn., 
 634536. 
 
 3 2 Spence. 46. 6 7th Edn.. 501. 
 
220 
 
 GENERAL AUTHORITY OF TRUSTEE. 
 
 VIII. 
 
 Advice of 
 cestui que 
 trust. 
 
 LECTURE the cestuis que trustent are under disability, or not yet in 
 existence), the alternative of consulting the Court would 
 always be attended with considerable expense, and, it may 
 be, an expense wholly disproportioned to the importance of 
 the occasion, and perhaps in the meantime the opportunity 
 might be lost. It is, therefore, evidently in furtherance of 
 the cestui que trust's own interest, that, where the circum- 
 stances of the case require it, the trustee should be at 
 liberty to exercise a reasonable discretionary power. 1 But a 
 trustee for adults should not take any proceeding without 
 consulting his cestuis que ti^ustent ; and if he do, and the 
 proceeding is disavowed by them, he may have to pay the 
 costs himself. 2 
 
 If there is a discretion to be exercised under the trust, the 
 trustee may apply to the cestui que trust for his advice and 
 assistance in the exercise of it, and if the cestui que trust 
 refuses his aid, he will not be entitled afterwards to com- 
 plain of what the trustee has done in the exercise of his 
 own discretion. So again, where it is doubtful what ought 
 to be done under a trust, the trustee may give notice to the 
 cestui que trust of his intention to do a particular act, unless 
 the cestui que trust interferes ; and if the cestui que trust 
 does not interfere, the Court will hold that the trustee is 
 not liable for doing that act. There are cases in which the 
 trust is not definite or precise. If the trust is definite and 
 clear, the trustee is bound to follow it, and will not be 
 excused for a breach of trust, merely because he has given 
 notice to the cestui que trust of the act which he intends 
 to commit. 3 
 
 Trustees are entitled to do any act which they would be 
 compelled to do by the Court at the suit of the cestuis que 
 trustent, or which the Court itself would direct to be done. 4 
 For instance, trustees may cut down decaying timber, 5 or 
 appropriate a legacy when the appropriation would have 
 been directed by the Court. 6 So if they are authorized to 
 
 1 See Angell v. Dawscn. 3 Y. and C., 317 ; Darke r. Williamson, 
 25 Beav., 622 ; Harrison r. Randall. 9 Hare. 407 ; Forshaw r. Higgiuson, 
 8 D. M. G., 827 ; Ward v. Ward. L. R . 2 H. L.. 784. 
 
 2 Lewin. 7th Edn., 502. citing Bradby v. Whitchurch. W. X.. 1868. p. 81. 
 
 3 Life Association of Scotland v. Siddal, 3 DeG. F. and J., 73, per 
 Turner, L. J. 
 
 4 Shaw v. Borrer, 1 Keen. 576. 
 
 5 \Vuldo r. Waldo, 7 Sim., 2G1 ; Gent v. Harrison, Johns.. 517 ; Earl 
 Cowley v. Wellesley. L. R., 1 Eq . 656. 
 
 6 Hutche.sou c. liuamiuud. 3 LJro. C. C., 128. 
 
 "\Vhnt acts 
 trustee 
 may do. 
 
GENERAL AUTHORITY OF TRUSTEE. 221 
 
 sell land, they may do such acts as in the bond fide exercise LECTURE 
 of their discretion are necessary to carry out the sale. 1 Arid VI11 - 
 if a trustee acting in the bond fide exercise of his discretion, 
 makes a payment which, though not authorized by the 
 trust, is in his opinion necessary to enable him to execute 
 the trust, he will be allowed such payment in passing his 
 accounts, though he does not act prudently in assuming the 
 responsibility of making such a payment without the sanc- 
 tion of the Court. 2 Again, trustees may avoid unnecessary 
 formalities. 3 
 
 Where the cestui que trust is incapable of contracting, Repairs, 
 the trustee may expend money in necessary repairs in im- 
 proving the estate. 4 But he may not expend money in 
 unnecessary expenses, such as ornamental improvements. 5 
 So a trustee might be justified in insuring, 6 but where there 
 is a tenant-for-life, he could not be advised to do so out of 
 the income without the tenant- for-life's consent. But if 
 an annuity and a policy on the life of the cestui que vie 
 be made the subject of a settlement, it is implied that the 
 trustee is to pay the premiums out of the income. 7 
 
 An executor will be allowed a reasonable time for breaking Winding 
 up his testator's domestic establishment, and discharging his Uf 
 servants, and a period of two months is not an unreason- 
 able delay. 8 An executor is not bound to pay or deliver 
 any legacy until the expiration of one year from the testa- 
 tor's death ; 9 but if the assets are sufficient, he may pay 
 before the expiration of the year. 10 
 
 A trustee will be allowed credit in his accounts for sums Mainte- 
 properly expended for the protection and safety or main- naace - 
 tenauce and support of his cestui que trust at a time when 
 he, though adult, was incapable of taking care of himself. 11 
 As to when maintenance should be made out of interest, 
 
 1 Forshaw v. Higginson. 3 Jur.. N. S.. 478. 
 
 2 Ibid. See also Seagram v. Knight. L. R., 2 Ch., 630. 
 
 3 Pell v. Dewinton, 2 DeG. and J., 20 ; George v. George, 35 Beav., 
 382. 
 
 4 Bowes v. Earl of Strathmore. 8 Jar., 92. 
 
 5 Attorney-General v. Geary. 3 Mer., 513 ; Bridge r. Brown, 2 Y. and 
 C. C. C.. 181 : see further. Lewin, 7tl. Edn., 504. 
 
 6 Fry i: Fry. 27 Beav.. 146. 
 
 I Lewin, 7th Edn.. 50(5. citing D'Arcy v. Croft, 9 Ir. Ch., 19. 
 
 8 Field v. Peckett. 29 Beav., 576. 
 
 9 Act V of 1881,8. 117. 
 
 10 Angerstein r. Martin, 1 T. and R , 241 ; Pearson v. Pearson. 1 Sch. 
 and Lef.. 12 : Garthshore v. Chalie. 10 Yes.. Ki. 
 
 II Nelson r. Buncombe, 9 Beav., 211 ; Chester r. Rolfe, 4 D. M. G., 798. 
 
222 COMPOUNDING OR RELEASING DEBTS. 
 
 LECTURE and when out of principal, see Lewiu. 1 The general rule 
 
 vni - is not to break into the capital unless it is very small. 2 
 
 Compound- Trustees or executor may, under certain circumstances, 
 
 ing or compound or release debts where it is clearly for the benefit 
 
 debtT lg of the trust-fund that they should do so. 3 If they are 
 
 unable to show that they have acted for the benefit of the 
 
 estate, they will be liable for the debt. 4 According to 
 
 English law, an executor or administrator may pay a debt 
 
 barred by the Statutes of Limitation, 5 and the same rule 
 
 obtains in this country, 6 the principle being, that the law 
 
 of limitation merely bars the remedy but does not extinguish 
 
 the debt. 7 An executor would not be justified in paying 
 
 a barred debt after a decree for administration. 8 
 
 " Trustees of an equity of redemption of lands mort- 
 gaged for more than their value, may, it is conceived, 
 release the equity of redemption to the mortgagee, rather 
 than be made defendants to a foreclosure-suit, the costs of 
 which, so far as incurred by themselves, would fall upon 
 the trust-estate." 9 
 
 How trust- Where the instrument of trust authorizes the trustees 
 may^e 7 * se ^ the trust-property, the trustees may sell either by 
 sold. public auction or private contract, as they may think most 
 beneficial, 10 and it is not necessary that they should, before 
 selling by private contract, have advertised the property 
 for sale by public auction. 11 They should not delegate the 
 general trust for sale. But there are many acts which the 
 trustees must necessarily do through the agency of other 
 persons and which are valid when so done, and the employ- 
 ment of agents to do such acts as an ordinary person acting 
 with common care would employ agents to do, is justifiable. 12 
 
 1 7th Edn., 607. 
 
 2 Ibid, 508. As to maintenance when the father is alive as to ad- 
 vancement, see Lewin, 7th Edn., 509 511. 
 
 3 Ratcliffe v. Winch, 17 Beav.. 216 ; Forshaw v. Higginson, 8 D. M. 
 G., 827 ; Exparte Ogle, L. R., 8 Ch.. 715 ; Act V of 1881, s. 92, ill. (a). 
 
 4 Wiles v. Gresham, 5 D. M. G , 770. 
 
 5 Coombs v. Coombs, L. R., 1 P. and D., 289 ; Lowis v. Rumney, L. R., 
 4 Eq., 551. 
 
 6 Administrator-General of Madras v. Hawkins, I. L. R., 1 Mad., 267. 
 
 7 Mohesh Lai . Busunt Kumaree. I. L. R., 6 Calc., 340, overruling Ram 
 Chunder Ghosaul v. Juggut Monmohiney Dabee, I. L. R., 4 Calc., 283. 
 
 8 See Lewin, 7th Edn., 511, 512. 
 
 9 Lewin, 7th Edn., 513 : and see further as to the general powers of 
 trustees, 513 518. 
 
 10 Davey v. Durrant, 1 DeG. and J., 535. " Ibid. 
 
 12 Ex parte Belchier, Arab., 218 ; Ord v. Noel, 5 Madd., 438 ; Rossiter 
 v. Trafalgar Life Assurance Co., 27 Beav.. 377. 
 
SALE OF TRUST-PROPERTY. 223 
 
 Where the trustees sell by public auction, they must LECTUBE 
 take care to have the property properly advertised, aud vni - 
 that due notice of the sale is given. If they neglect these 
 precautions, the sale may be stayed by injunction at the 
 suit of the cestui que trust, it being the duty of the trus- 
 tee to sell to the best advantage. 1 The property may be 
 sold in different lots, should that seem to be the course 
 most likely to attract purchasers, 2 unless the instrument of 
 trust provides that the property is to be sold in one lot. 
 
 The Trustees' and Mortgagees' Powers Act (XXVIII of 
 1866) provides, in cases to which English law is applicable 
 (s. 2), that " in all cases where by any will, deed, or other 
 instrument of settlement, it is expressly declared that trustees 
 or other persons therein named or indicated shall have a 
 power of sale, either generally or in any particular event, 
 over any immoveable property named or referred to in, or 
 from time to time subject to the uses or trusts of such 
 will, deed, or other instrument, it shall be lawful for such 
 trustees or other persons, whether such property be vested 
 in them or not, to exercise such power of sale by selling 
 such property either together or in lots, and either by public 
 auction or private contract, and either at one time or at 
 several times." 
 
 The trustees should take care that every necessary and Conditions 
 no unnecessary condition is attached to the sale. 3 They of sale> 
 must not omit any condition which the state of their title 
 requires, but the employment by them of conditions of 
 such a depreciatory character as to involve the purchaser 
 in a breach of trust, will constitute an objection to the 
 title, besides rendering them liable to their cestuis que 
 trustent* "I have always understood it to be the law 
 consistently with authority and principle," said James, 
 L. J., 5 " that however large may be the power of trustees 
 tinder their trust-deed to introduce conditions limiting the 
 title and other special conditions which have, or are cal- 
 culated to have, a depreciatory effect on the sale, they are 
 
 1 Webb v. Earl of Shaftesbury, 7 Ves., 487 ; Attorney-General v. Cor- 
 poration of Liverpool, 1 M. and C., 210 ; Attorney-General v. Aspinall, 
 2 M. and C., 623; Milligan v. Mitchell, 1 M. and K., 446; Dance v. 
 Goldingham, L. R.. 8 Ch., 902. 
 
 2 Ord v. Noel, 5 Madd., 438. 
 
 3 Ex part e Lewis, 3 Gl. and J., 173. 
 
 4 Ord v Noel, 5 Madd., 438 ; Hobson v. Bell, 2 Beav., 17 ; Borrell v. 
 Dann, 2 Hare. 440: see 1 Dav. Convey., 441. 
 
 s Dance v. Goldingham, L. R., 8 Ch., 909. 
 
CONDITIONS OF SALE. 
 
 LECTURE bound to exercise them in a reasonable manner that they 
 Till, ninst not rashly or improvidently introduce a depreciatory 
 condition for which there is no necessity." No general 
 rule can be laid down, determining what conditions do, and 
 what do not, fall within this description. Each case must 
 depend mainly on its own circumstances, and a Court of 
 Equity will allow trustees a fair discretion in employing 
 special conditions. 1 They may stipulate that all objec- 
 tions to the title shall be taken within twenty-one days 
 from the delivery of the abstract, or be deemed \vaived, 
 and that time in that respect is to be deemed of the 
 essence of the contract, and that if a valid objection be 
 taken, they shall be at liberty to rescind the contract on 
 returning the deposit, and to re-sell. 2 Such a condition 
 may, in a certain sense, be depreciatory, yet it is one which 
 a prudent owner selling in his own right would intro- 
 duce. 3 The trustees must be careful to avoid misdescrip- 
 tions, since it seems that they cannot enforce a condition 
 for compensation if they make an error in describing the 
 property. 4 Where a sale is made by trustees or mort- 
 gagees, or other persons who do not, enter into the usual 
 covenants for title, the fact should be mentioned in the 
 conditions. 5 
 
 The condition should be framed so as to entitle the 
 vendor to rescind, not merely on the purchaser insisting 
 upon some objection as to title, but on his insisting on any 
 objection or requisition as to either title or conveyance ; 
 and should provide that the right may be exercised not- 
 withstanding any intermediate negotiation in respect of 
 such objection or requisition. 6 A condition that the 
 trustees shall only be called upon to covenant against 
 incumbrances is not unusual. 7 So, where the trustees have 
 no power to give receipts, they may stipulate that their 
 receipts shall be sufficient, and that the concurrence of the 
 cestuis que trustent shall not be required. 8 
 
 Buying in. Trustees may fix a reserved bidding, and if the amount 
 fixed is not reached at the sale, may buy in the property 
 
 1 Sugd.. 51. 
 
 2 Hobson v. Bell, 2 Beav., 17 ; Falkner v. The Equitable Society, 
 4 Drew., 352. 
 
 8 Falkner v. Equitable Reversionary Co., 4 Drew., 352. 
 4 White v. Cuddon. 8 C. and F., 766; Hobson v. Bell, 2 Beav., 17: 
 but see Hill r. Buckley, 17 Ves., 394. 
 
 4 1 Dav.. 441 . 442. ' 6 Dart V. and P.. 5th Edn.. 157. 
 
 7 Dart V. and P., 5th Edn., 172. s Wilkinson v. Hartley. 15 Beav.. 183. 
 
POWER TO CONVEY. 225 
 
 at that price. 1 They must be careful not to delay in re- LECTURE 
 selling, otherwise, if there is a loss on the re-sale, they may VI1 
 be held liable. 2 
 
 The Trustees' and Mortgagees' Powers Act 3 provides, 
 in cases to which English law is applicable, that " it shall 
 be lawful for the persons making any sale to insert 
 any such special or other stipulations, either as to title 
 or evidence of title or otherwise, in any conditions of 
 sale, or contract of sale, as they shall think fit ; and 
 also to buy in the property or any part thereof at any 
 sale by auction, and to rescind or vary any contract for 
 sale, and to re-sell the property which shall be so bought 
 in, or as to which the contract shall be so rescinded, with- 
 out being responsible for any loss which may be occa- 
 sioned thereby ; and no purchaser under any such sale 
 shall be bound to enquire whether the persons making 
 the same may or may not have in contemplation any 
 particular re-investmeiit of the purchase-money in the 
 purchase of any other property or otherwise." But this 
 section would not warrant trustees in introducing stipula- 
 tions which are plainly not rendered necessary by the state 
 of the title, and are calculated to damp the success of the 
 sale. 4 
 
 When the trust-property has been sold either by public p ow er to 
 auction or private contract, the trustees must convey it convey, 
 to the purchaser in such manner as may be necessary. The 
 Trustees' and Mortgagees' Powers Act 8 provides, that, "for 
 the purpose of completing any sale, the persons empowered 
 to sell shall have full power to convey or otherwise dispose 
 of the property in question in such manner as may be 
 necessary." 
 
 Trustees do not usually enter into covenants for title 
 beyond a covenant against incumbrances, 6 and they can- 
 not be compelled to enter into a covenant for further as- 
 surance. 7 
 
 Where the instrument creating the trust does not contain power to 
 any power to the trustees to alter the mode of investment, varv in - 
 the trustees may, nevertheless, sell the property, and invest 
 
 1 EC Peyton's Settlement, 8 Jur.. N S., 453; 30 Beav., 252 ; Else r. 
 Barnard. 28 Beav., 228 ; Bousfield v. Hodges, 33 Beav., 90. 
 - Taylor . Tab rum. 6 Sim., 281 ; Fry v. Fry, 27 Beav., 144. 
 
 3 XXVIII of 1866. s. 3. 
 
 4 See Lewin. 7th Edn. 5 XXVIII of 1866, s. 4. 
 6 Worley r. Frampton, 5 Hare, 560. ' Ibid. 
 
 29 
 
226 MAINTENANCE. 
 
 LECTURE the proceeds on any of the securities which would be autho- 
 y 111 ' rized by the Court, see ante, p 160, and vary such invest- 
 ment from time to time, provided that they never buy any 
 redeemable security at a premium. 1 
 
 The Trustees' and Mortgagees' Powers Act 2 provides, that 
 " trustees having trust-money in their hands, which it is 
 their duty to invest at interest, shall be at liberty, at their 
 discretion, to invest the same in any Government securities; 
 and such trustees shall also be at liberty, at their discretion, 
 to call in any trust-funds invested in any other securities 
 than as aforesaid, and to invest the same on any such secu- 
 rities as aforesaid for others of the same nature. Pro- 
 vided always, that no such original investment as aforesaid 
 shall be made where there is a person under no disability 
 entitled in possession to receive the income of the trust- 
 fund for his life, or for a term of years determinable with 
 his life, or for any greater estate, without the consent in 
 writing of such person." 
 
 Power to Where the cestuis que trustent, or some of them, are in- 
 pmy for" fonts, the trustees may apply the trust-fund towards their 
 mainte- maintenance, 3 either out of interest or under certain cir- 
 cumstances out of the principal. But the principal should 
 not be touched if it can be helped. The father, if alive, is 
 the proper person to maintain the infants, and the Court 
 will not direct maintenance without inquiring whether the 
 father is able to maintain the infant himself; but no in- 
 quiry will be directed in the case of a widow applying for 
 maintenance. 4 
 
 If, however, the father has abandoned his children, or is 
 destitute, the trustees will be allowed sums properly expend- 
 ed, 5 upon the principle that a trustee may do what the Court 
 would direct to be done. 6 
 
 Income which has been accumulated may be resorted 
 to for future maintenance. 7 
 
 The trustees will only be justified in applying the prin- 
 cipal towards the maintenance of infant cestuis que trustent 
 when it is so small that if invested, the income would be 
 
 1 Waite v. Littlewood, 41 L. J.. Ch., 636. 
 
 2 XXVIII of 1866. s. 32. 
 
 * Duncombe v. Nelson. 9 Beav., 211 ; Chester r. Rolfe. 4 D. II. G., 79?. 
 4 Lewin. 7th Edn.. 50y. 
 
 * Sisson r. Shaw. 9 Ves., 288 ; Prince r. Hine. 26 Beav., 634. 
 
 * Maberley i: Turton. 14 Ves . 499 : see ante. p. 220. 
 7 Edwards r. Grove. 2 DeG. F. and J.. 210. 
 
MAINTENANCE. 227 
 
 wholly insufficient. Thus, where four infants were entitled LKCTUUK 
 to a share of 1,538, 3 consols, and their father, a man of VIII. 
 improvident habits,living apart from his wife, did not contri- 
 bute to the support of either wife or children, the trustees 
 were allowed two sums of 200 and 100, applied by them 
 towards the maintenance of the infants. 1 
 
 If the fund is considerable, say Rs. 10,000, the trustees 
 would not be safe in applying the principal without the 
 sanction of the Court. 2 
 
 In certain cases the trustees may expend a portion of the 
 principal of the trust-fund for the advancement of a child, 
 unless there is a limitation over, for then the Court itself 
 could not order the advancement. 3 
 
 The Trustees' and Mortgagees' Powers Act 4 provides, that, 
 " in all cases where any property is held by trustees in 
 trust for a minor, either absolutely or contingently on his 
 attaining majority, or on the occurrence of any event pre- 
 viously to his attaining majority, it shall be lawful for 
 such trustees, at their sole discretion, to pay to the guar- 
 dians (if any) of such minor, or otherwise to apply for or 
 towards the maintenance or education of such minor, the 
 whole or any part of the income to which such minor may 
 be entitled in respect of such property, whether there be any 
 other fund applicable, for the same purpose, or any other per- 
 son bound by law to provide for such maintenance or educa- 
 tion or not : and such trustees shall accumulate all the residue 
 of such income by way of compound interest, by investing 
 the same and the resulting income thereof, from time to 
 time, in proper securities, for the benefit of the person who 
 shall ultimately become entitled to the property from which 
 such accumulations shall have arisen. Provided always, 
 that it shall be lawful for such trustees at any time, if it 
 shall be appear to them expedient, to apply the whole or 
 any part of such accumulations as if the same were part 
 of the income arising in the then current year." 
 
 Various Acts regarding the property of minors have been Minors' 
 passed from time to time. Act XL of 1858 contains provi- Act- 
 sions for placing the property of minors not being European 
 
 1 Priuce v. Hine. 26 Beav . 634 : see also Ex parte Hays, 3 DeGr. and 
 Sra.. 485 ; Bridge c. Brown. 2 Y. and C. C. C., 181. 
 
 2 Barlow r. Grant. 1 Vern., 255 : see further as to maintenance, 
 Tagore Law Lecture. 1877. Trevelyan ; Lewin. 7th Edn., 507 511. 
 
 3 See Lewin, 7th Edn.. 510. 
 
 4 XXVIII of 1866. s. 33. 
 
228 MINORS' ACTS. 
 
 LECTURE British subjects, and who are not brought under the super- 
 vm - intendence of the Court of Wards, under the charge either 
 of a relative of the minor, or of a public curator; and s. 11 
 gives the Civil Court power to fix such allowance as it 
 may think proper for the maintenance of the minor. Sec- 
 tion 25 made it incumbent upon the guardians of minors to 
 provide for their education. That section was repealed by 
 Act IV (B. C.) of 1870, s. 86, which provides, s. 64, that 
 general superintendence and control of every minor ward 
 is thenceforth to be vested in the Court of Wards. This 
 section only applies to minors who are subject to the Court 
 of Wards. 
 
 Act XX of 1864, which provides for minors in the Pre- 
 sidency of Bombay, and contains similar provisions to 
 Act XV of 1858 as to placing the property of minors not 
 being European British subjects under the charge of rela- 
 tives or a public curator, provides (s. 10) that the Civil 
 Court may fix such allowance as it may think fit for the 
 maintenance of the minor ; and (s. 25) for his education. 
 
 Act XXI of 1855, an Act for making better provision 
 for the education of male minors subject to the superin- 
 tendence of the Court of Wards in the Presidency of Fort 
 St. George, gives the Collector (ss. 2 and 3) power to make 
 provision for the maintenance and education of minors sub- 
 ject to the Court. 
 
 And Act XIII of 1874, the European British Minors' Act, 
 which extends to the Punjab, Oudh, the Central Provinces, 
 British Burma, Coorg, Ajmeer, Mairwara, and Assam, pro- 
 vides that the Court may order that the principal of the 
 ward's property, or any part thereof, shall be applied 
 for his maintenance, education, or advancement. 
 Liability of All thetrustees must, as we have seen, join in giving 
 purchaser receipts for any property transferred to them as trustees, 
 appiica- In properly drawn instruments of trusts, whether deeds 
 tionof or settlements, a power is inserted authorizing the trustees 
 " to give receipts for trust-moneys or other funds paid or 
 transferred to them. Where there is no such power, it is 
 in general incumbent on the person paying trust-money 
 to see that it is applied as directed by the instrument 
 of trust. The leading case on this point is Elliot v. 
 Merryman ; * there it was decided (1) that a purchaser 
 of personal property from an executor will not be liable 
 
 1 Barn, 781 ; W. and T.. L. C., 59. 
 
APPLICATION OF PURCHASE-MONEY. 229 
 
 to see to the application of the purchase-money, except LECTURE 
 in cases of fraud; (2) that it is a general rule, that, VIIL 
 where real estate is devised to trustees upon trust 
 to sell for payment of debts generally, the purchaser 
 is not bound to see to the application of the money, and 
 that the same rule applies where real estate is not 
 devised to be sold for the payment of debts, but is only 
 charged with such payment ; and (3 ) that if real estate is 
 devised upon trust to be sold for the payment of certain 
 debts, mentioning to whom in particular the debts are 
 owing, the purchaser is bound to see that the money is 
 applied for the payment of those debts. 
 
 The reason for the rule is this, at law the trustees are 
 the owners, and they can, therefore, give a valid dis- 
 charge. But in equity the cestuis que ti^ustent are the 
 owners, and Courts of Equity, therefore, hold, that a pur- 
 chaser must get a discharge from them unless the instru- 
 ment of trust authorizes the trustees to give receipts. 
 
 The Fines and Recoveries Act 1 provides (s. 17), that Fines and 
 where any property is sold, the proceeds of which are Recoveries 
 subject to any trust, the bond fide purchaser of the pro- 
 perty shall not in any case be bound to see to the applica- 
 tion of the purchase-money to the purposes of the trust. 
 
 Act XXVIII of 1866, in cases to which English law is Trustees' 
 applicable, provides (s. 36), that "the receipts of any trustees a ',| d e gg? rt " 
 or trustee for any money payable to them or him by reason Powers 
 or in the exercise of any trusts or powers reposed or vested Act> 
 in them or him, shall be sufficient discharges for the money 
 therein expressed to be received, and shall effectually 
 exonerate the persons paying such money from seeing to 
 the application thereof, or from being answerable for any 
 loss or misapplication thereof." 
 
 The purchase-money should be paid to the vendor per- To whom 
 sonally. An agent or solicitor has no implied authority ^ U r ^ se " 
 to receive it, and if the purchaser pays his purchase- payable, 
 money to a person not authorized to receive it, he is 
 liable to pay it over again. The possession of the executed 
 conveyance, with the signed receipt for the consideration- 
 money indorsed, is not of itself an authority to the soli- 
 citor of the vendor to receive the purchase-money. 2 Such 
 a receipt is not conclusive evidence of payment. 3 
 
 1 XXXI of 1854. - Viney v. Chaplin, 2 DeG. and J., 468. 
 
 s Winter c. Lord Anson. 3 Russ.. 488. 
 
230 APPLICATION OF PURCHASE-MONEY. 
 
 LECTURE It has been said, that where the vendors sell in a 
 fiduciary character as executors or trustees, they should 
 receive the purchase-money themselves. 1 In Webb v. 
 Ledsam, 2 however, Wood, V. C., said, that he knew of no 
 authority for holding a man liable to pay over again pur- 
 chase-money which he had paid to one of several trustees 
 upon a receipt signed by them all. 
 
 Where there is a charge of debts generally under a will, 
 a purchaser is not bound to see to the application of the 
 purchase-money, 3 nor where there is a charge of debts 
 and legacies ; 4 and it is immaterial that there were no debts 
 existing, or that the debts and legacies have been since 
 discharged. " When," said Lord St. Leonards, 6 " a testa- 
 tor, by his will, charges his estate with debts and legacies, 
 he shows that he means to entrust his trustees with the 
 power of receiving the money, anticipating that there will 
 be debts, and thus providing for the payment of them ; 
 it is by implication a declaration by the testator that he in- 
 tends to intrust the trustees with the receipt and application 
 of the money, and not to throw any obligation at all upon 
 the purchaser or mortgagee ; that intention does not cease 
 because there are no debts ; it remains just as much if 
 there are no debts as if there are debts, because the power 
 arises from the circumstance that the debts are provided 
 for, there being in the very creation of the trust a clear 
 indication amounting to a declaration by the testator that 
 he means that the trustees are alone to receive the money 
 and apply it." 
 
 The purchaser will not be bound to see to the applica- 
 tion of the purchase-money, even if he knew that there 
 were no debts, if the other purposes of the trust require 
 a sale. 7 And where real estate is directed by will to 
 be sold generally, the proceeds to form part of the per- 
 sonal estate, and subject to debts to be divided, the 
 purchaser is not bound to see to the application of the 
 
 1 Dart V. and P.. 602. 
 
 2 1 K. and J., 388. 
 
 3 Ball v. Harris, 4 M. and C., 264 ; In re Langmeads's Trusts, 7 D. 
 M. G., 353. 
 
 4 Eland v. Eland. 4 M. and Cr.. 420. 
 
 5 Rogers v. Skillicorne. Arab., 188 ; Johnson >: Kennett, 3 M. and 
 K.. 624 : Robinson v. Lowater. 5 D. M. G.. 272. 
 
 6 Stroughill v. Anstey, 1 D. M. G., 635. 
 
 7 Eland v. Eland. 4 M. and C., 420 ; Stroughill v. Anstey, 1 D. M. G.. 
 635 ; Howard v. Chaffer, 9 Jur., N. S., 7G7. 
 
NOTICE OF BREACH OF TRUST. 231 
 
 purchase-money. 1 But where an estate is directed to be LECTURE 
 sold and is charged generally with the payment of legacies ^i ti- 
 er specified debts, the purchaser must see to the applica- 
 tion of the purchase-money. 2 
 
 The trustee is not bound to give the purchaser any 
 information as to the existence of debts. 3 
 
 If the nature of the transaction affords intrinsic evidence Notice of 
 that the fiduciary vendor is not acting in the execution breach of 
 of his duty, but is committing a breach of trust, as where tr 
 the consideration of the mortgage or sale is a personal 
 debt due from the vendor to the purchaser, there the pur- 
 chaser being a party to the breach of trust does not hold 
 the property discharged from the trusts, but equally sub- 
 ject to the payment of debts and legacies as it would have 
 been in the hands of the executor. 4 And if a purchaser 
 or mortgagee knows that there were no debts existing at 
 the time of the testator's death, or that they have since 
 been paid, leaving only legacies due, and that the money 
 was raised for the private purposes of the parties raising it, 
 he will be postponed to the unpaid legatees. 5 
 
 Where a particular time is fixed for the sale, and the 
 proceeds are divisible among infants or persons then un- 
 born, 6 the purchaser need not see to the application of 
 the purchase-money ; nor where it is to be applied upon 
 trusts requiring time for their performance, as where other 
 estates are to be purchased with it, 7 or^he trust is for per- 
 sons not immediately ascertainable, as for instance, credi- 
 tors coming in after a certain time under a deed. 8 Where 
 there is a chai-ge of debts and power-of-sale in the event 
 of the personal estate proving insufficient, the trustees 
 are not bound to show, nor the purchasers to ascertain, that 
 there is a deficiency. 9 
 
 In the recent case of Greender Chunder Ghose v. Mac- 
 kintosh the question how far lands purchased from a 
 
 1 Smith v. Guyon, 1 Bro. C. C., 186. 
 
 - Smith v. Guyon. 1 Bro. C. C., 186 ; Horn r. Horn. 2 S. and S., 448. 
 
 Forbes v. Peacock 1 Ph.. 717 : Sabin r. Heap. 27 Beav.. 553. 
 
 Watkins v. Cheek. 2 S. and S.. 199 ; El&nd v. Eland, 4 M. and C., 
 420 : Corser r. Cartwright. L. R., 7 H. L., 731. 
 
 Howard r. Chaffer, 9 Jur., N. S.. 767. 
 
 Sowarsby r. Lacey. -1 Madd., 142 ; Breedon v. Breedon. 1 R. and My., 
 4H. 
 
 Doran v. Wiltshire. 3 Swanst. 697. 
 
 Balfour r. Welland, 16 Ves.. 151 ; Groom r. Booth. 1 Drew. 548. 
 
 9 Bird r. Fox. 11 Hare. 40 ; Pierce r. Scott, 1 Y. and C.. Ex.. 257. 
 
 10 I. L. R.. 4 Calc.. 897. 
 
232 SUSPENSION OF TRUSTEES* POWERS. 
 
 LECTURE Hindu devisee are liable in the purchaser's hands for the 
 testator's debts was considered, and Pontifex, J., held, that 
 the question is on the same footing as a similar question 
 would be under the English law. 
 
 His Lordship said, 1 that the creditors of the ancestor 
 or testator may " follow his lands into the possession of a 
 purchaser from the heir or devisee if it can be proved that 
 such purchaser knew (i) that there were debts of the 
 ancestor or testator left unsatisfied ; and also (ii) that the 
 heir or devisee to whom he paid his purchase-money in- 
 tended to apply it otherwise than in the payment of such 
 debts. But a purchaser, ignorant on either of these points, 
 has a safe title, for no duty is cast upon the purchaser 
 from the heir or devisee to enquire whether there are any 
 debts of the ancestor or testator, or to see to the applica- 
 tion of his purchase-money. The decision in Corser v. 
 Cartwright 2 is an authority for this, even in the far 
 stronger case where there is an express charge of debts by 
 the testator on the devised estate, at least when the 
 devisee is also executor, for the Lord Chancellor cautiously 
 confined his judgment to the case before him, and it is 
 also an authority to show that even where there is an 
 express charge of debts, the burden of proof is entirely 
 on the creditor to show that the purchaser from the devisee 
 had notice that the latter intended to misapply the pur- 
 chase-money." 3 
 
 Suspension After a suit has been instituted for the purpose of ad- 
 powerf 66 S ministering the trust, and a decree has been made, the 
 after trustees cannot act on their own responsibility, but must 
 ree< come to the Court, whenever they have to do any acts 
 regarding the property. 4 They cannot commence or defend 
 any suit without the leave of the Court ; 5 nor can trus- 
 tees for sale sell. 6 And an executor cannot pay debts, 
 or invest his testator's assets. 8 But it has never been 
 decided that an executor after the institution of a suit 
 
 'Page 906. 2 L. R., 7 H. L.. 731. 
 
 3 See further as to trustee's receipts. Lewin, 7th Edn.. 407 438. 
 
 4 Mitchelson v. Piper, 8 Sim.. 64 ; Shewen v. Vanderhorst, 1 R. and M., 
 347 ; S. C., 2 R. and M.. 75 ; Minors v. Battison, L. R., 1 App. Cas., 428. 
 
 5 Jones v. Powell. 4 Beav., 96. 
 
 " Walker v. Smallwood, Ambl., 676 ; Annersley c. Ashurst, 3 P. Wms., 
 282. 
 
 7 Mitchelson v. Piper. 8 Sim.. 64 ; Irby v. Irby., 24 Beav, 525. 
 
 8 Widdowson v. Duck, 3 Mer., 494 ; Bethell v. Abraham, L. R.. 
 17 Eq., 24. 
 
SUSPENSION OF POWERS BY DECREE. 233 
 
 cannot sign a valid receipt for any part of the testator's LECTURE 
 personal estate. 1 A decree must have been made in the VIII. 
 suit. The reason of this rule is, that the plaintiff may, at 
 any time before decree, withdraw his suit; 2 and should he 
 do so, the progress of the trust may have been arrested for 
 no purpose. Still it is safer for the trustees, after a suit has 
 been instituted, not to act without the leave of the Court ; 
 and if, by acting independently of the Court, expenses be 
 incurred, which might have been avoided had the trustees 
 applied to the Court, they may be made to bear them per- 
 sonally. 3 
 
 1 Lewin, 7th Ed., 516. 2 See Act X of 1877, s. 373. 
 
 3 Lewin, 7th Ed., 516. 
 
 30 
 
LECTURE IX. 
 
 DISABILITIES OF TRUSTEES. 
 
 Trustee cannot renounce after acceptance Trustee cannot delegate Employ- 
 ment of solicitor to invest Delegation to co-trustee or co-executor 
 Necessary delegation Co-executor Delegation authorized by author of 
 trust Representatives of surviving trustee Fraud by co-trustee Dis- 
 cretionary trust Ministerial acts Liability of agent Co-trustees cannot 
 act singly All trustees must join in receipt and conveyance Proof in 
 insolvency Exception to rule in case of public trust Special power 
 Acknowledgment Costs of acting independently Injunction Remu- 
 neration for trouble Carrying on business Surviving partner trustee 
 Solicitor trustee Extent of charge allowed Costs Trustee appointed 
 by Court Professional charges not allowed Settled account Remuner- 
 ation fixed by author of trust Contract for remuneration with cestuis que 
 irustent. Gift coupled with duty Expenses of agent Curators under 
 Act XIX of 1841 and Act XL of 1858 Official Trustee Administrator- 
 General Trustee may not make a profit from his office Employing 
 trust-funds in trade Compounding debts or mortgages and purchasing 
 Purchase for benefit of cestui que trust Cestui que trust cannot give to 
 trustee Rule applies to all fiduciary relations Partners Purchasing 
 share of deceased partner Instances of rule Trustee retiring for a con- 
 sideration Extent of liability Failure of heirs of cestui que trust 
 Failure of next-of-kin Trustee for sale cannot purchase Trustee pur- 
 chasing from himself That price fair immaterial So nature of property, 
 or mode of purchase Trustee who has never acted When cestui qtie 
 trust may set aside sale Trustee may not buy for another Agent of 
 trustee may not purchase Trustee taking lease Time within which sale 
 must be set aside Confirmation Purchase from destui que trust Fidu- 
 ciary relation dissolved Burden of proof Purchase by creditors 
 Assignee Leave to bid Purchase from infants Legal representatives 
 Mortgagee Lending to trustees. 
 
 AFTER a trustee has once accepted the trust, either ex- 
 pressly or impliedly, he cannot, by any act of his own, 
 without communication with his cestui que trust, denude 
 ceptance. himself of the character of trustee until he has performed 
 his trust ; l any subsequent renunciation will be void. 2 Thus, 
 the trustee of a temple cannot alienate the trust-property 
 subject to the trusts attaching to it, and so get rid of the 
 
 1 Chalmer r. Bradley. 1 Jac. & W., 68. 
 
 2 Read v. Truelove, Ambl., 417. 
 
 Trustee 
 cannot 
 renounce 
 after ac- 
 
DELEGATION OF TRUST. 235 
 
 office. 1 The only way in which a trustee can obtain a LECTURE 
 release from the office is by obtaining his discharge from 
 the Court, 2 or, if all the cestuis que trustent are competent 
 to contract, by obtaining their consent to his renuncia- 
 tion ; or by retiring under a special power in the instru- 
 ment of trust. With the subject of appointments of new 
 trustees I shall deal hereafter. Thus, where A was named 
 executor in a will, and acted on behalf of particular legatees, 
 disclaiming an intention of interfering generally, and after- 
 wards renounced in favour of B, who was named a trustee 
 in the same will, and who thereupon obtained adminis- 
 tration with the will annexed ; and B subsequently died 
 insolvent after having possessed himself of the assets, it 
 was held, that A was liable as executor notwithstanding 
 his renunciation, and was answerable for the acts of B. 
 " Executors," said Lord Redesdale, " must either wholly re- 
 nounce, or if they act to a certain extent as executors, and 
 take upon them that character, they can be discharged 
 only by administering the effects themselves, or by put- 
 ting the administration into the hands of a Court of 
 Equity." 3 Where a trustee gave a bond to convey trust- 
 property, and the administrator of the cestui que trust sued 
 upon the bond and recovered the penalty, it was held, 
 nevertheless, upon a bill to compel a conveyance, that the 
 trustee was liable to carry out the trust upon the penalty 
 being refunded with interest. 4 
 
 As a general rule, a trustee cannot delegate his office. Trustee 
 1 f he does so, he will be liable for any breach of trust 
 committed by the person to whom the office has been en- 
 trusted, for trustees cannot divest themselves of their 
 trust at their pleasure. 5 "Trustees," said Lord Langdale, 6 
 ' who take on themselves the management of property for 
 the benefit of others, have no right to shift their duties on 
 other persons ; and if they employ an agent, they remain 
 subject to responsibility towards their cestui que trust, for 
 whom they have undertaken the duty." In that case the 
 
 1 Rajah of Kovilagom v. Kottayath, 7 Mad. H. C. R., 210. 
 
 - Doyle K. Blake, 2 Sch. & Lef.. 245. 
 
 3 Doyle r. Blake. 2 Sch. & Lef., 231 : see also Lowry v. Fulton, 9 Sim., 
 1 : 4 : Belchior Francisco Ferras v. Roque Mariano Dos Angos, 9 S. D. 
 A.. 921. 
 
 1 Moorecroft r. Dowding. 2 P. Wins.. 314. 
 
 5 Bradwell v. Catchpole. 3 Swaust., 79 (). 
 
 6 Turner . Corney. 5 Beav .. 517. 
 
236 DELEGATION OF TRUST. 
 
 LECTUBE trustees were empowered by the trust-deed to employ an 
 Ix - agent, and the decree directed an enquiry as to whether 
 it was by the neglect or default of the trustees that they 
 were unable to render a better account. And in a subse- 
 quent case l Lord Langdale said : " In cases of breach of 
 trust, it is of great importance to the community that 
 trustees, who take on themselves the protection of the 
 property of others, should be made to feel that they will 
 be held liable for trust-property which is lost by their 
 acts of omission or commission, and that such liability 
 will be enforced against them." 
 
 Employ- Trustees have been held liable when they have employed 
 
 solicitor to their solicitors to invest the trust-fund, and it has been lost 
 
 invest. through the fraudulent acts of the persons employed. " If," 
 
 said Lord Eldon, 2 " a trustee trusts an attorney, he must 
 
 abide by the effect of that confidence." And it is no defence 
 
 that, in the employment of the solicitor, ordinary care and 
 
 discretion was exercised. 3 In one case trustees were held 
 
 liable for lending money on the valuation of the mortgagor's 
 
 agent without looking into the matter themselves. 4 
 
 Delegation If trustees or executors delegate the execution of the 
 
 tee C or co-~ trust or the distribution of the assets to one of their own 
 
 executor, number, and a loss ensues through his wrongful act, they 
 
 will be liable, for it is the duty of each trustee or executor 
 
 to watch over the trust-property. 5 
 
 But where an executor who had proved, but never acted, 
 received a bill of exchange by post on account of the 
 estate, and immediately sent it to the acting executor, and 
 it was lost, it was held, that the first executor was not 
 liable, as he had never acted in the trust. 6 
 
 Necessary In Ex parte Belchier 1 it was sought to make the 
 e egation. ass jg nee o f a bankrupt liable for the default of a broker, 
 who had been employed to sell some of the bankrupt's pro- 
 perty. Lord Hardwicke said: " If the assignee is chargeable 
 
 1 Ghost r. Waller, 9 Beav., 497. 
 
 2 Chambers v. Minchin, 7 Ves., 196. 
 
 3 Bostock ?;. Floyer, L. R., 1 Eq., 26. See also Griffiths v. Porter. 
 25 Beav., 236 ; Ingle v. Partridge. 32 Beav., 661 ; Wood r. Weightman, 
 L. R., 13 Eq., 434 ; In re Bird, L. R., 16 Eq., 203. As to liability of an 
 assignee in bankruptcy for loss caused by acts of an attorney empowered 
 to recover debt, see Lewin. 7th Edn., 234. 
 
 4 Ingle v. Partridge, 34 Beav., 411. 
 
 5 Langford v. Gascoyne. 11 Ves., 333 ; Davis v. Spurling. 1 R. & M., 
 66 ; Clough v. Bond, 3 M. & Cr., 497 ; Eaves v. Hickson, 30 Beav., 130. 
 
 Balchen v. Scott. 2 Ves. Jr., 678. 
 ' Arab., 218. 
 
DELEGATION OF TRUST. 237 
 
 in this cs,se, no man in his senses would act as assignee LECTURE 
 
 T "V 
 
 under commissions of bankrupt. This Court has laid down 
 a rule with regard to the transactions of assignees, and 
 more so of trustees, so as not to strike a terror into man- 
 kind acting for the benefit of others, and not for their own. 
 Courts of Law, and Equity too, are more strict as to execu- 
 tors and administrators ; but where trustees act by other 
 hands, either from necessity, or conformable to the common 
 usage of mankind, they are not answerable for losses. There 
 are two sorts of necessities : first, legal necessity ; secondly, 
 moral necessity. As to the first, a distinction prevails 
 where two executors join in giving a discharge for money, 
 and one of them only receives it, they are both answerable 
 for it, because there is no necessity for both to join in the 
 discharge, the receipt of either being sufficient ; but if 
 trustees join in giving a discharge, and one only receives, 
 the other is not answerable, because his joining in the dis- 
 charge was necessary. 
 
 " Moral necessity, from the usage of mankind. If a 
 trustee acts as prudently for the trust as for himself and 
 according to the usage of business, he will not be liable. 
 
 " If a trustee appoints rents to be paid to a banker at that 
 time in credit, and the banker afterwards breaks, the trustee 
 is not answerable. So, in the employment of stewards and 
 agents, the receiver of Lord Plymouth's estate 1 took bills 
 in the country of persons who at the time were reputed of 
 credit and substance, in order to return the rents to Lon- 
 don : the bills were protested and the money lost, and yet 
 the steward was excused. None of these cases are on 
 account of necessity, but because the persons acted in the 
 usual method of business. " 2 
 
 Where an executor possessing assets of his testator hands Co-exe- 
 over the assets to a co-executor, and they are misapplied cutor - 
 by him, the executor who so hands them over will be 
 answerable for their misapplication, because he had a legal 
 right to retain them, and might have preserved them, and it 
 was his duty to do so ; unless, indeed, they were so handed 
 over for the express purpose of a special administration by 
 the co-executor as for the payment of a particular debt. 3 
 
 1 Knight v. The Earl of Plymouth, 1 Dick, 120. 
 
 2 See ante, p. 140 ; and also Wren r. Kirton. 11 Ves.. 377 ; Massey v. Ban- 
 ner. 1 J. and W., 248 ; Joy v. Campbell, 1 Sch. and Lef., 341. 
 
 3 Davis v. Spurling, 1 R. and M., 66 : and see Trutch ?. Lamprell, 
 20 Beav.. 116 : Thompson i: Finch, 22 Beav.. 316 : 8 D. M. G., 560 ; Cowell 
 r. Gatcombe. '27 Beav . 568. 
 
238 DELEGATION OF TliUST. 
 
 LECTURE But trustees cannot be answerable, if the instrument of 
 
 Ix - trust provides for delegation, and they follow the directions 
 
 Delegation given by it. Thus, a testator by his will recommended his 
 
 authorized executors to employ A (who had been in the testator's own 
 
 of trust, employment) as their clerk or agent. The executors gave 
 
 A a power-of-attorney to receive debts, and A subsequently 
 
 became insolvent. It was contended that the executors 
 
 were answerable for the default of A ; but Sir A. Hart said, 
 
 that if a testator pointed out an agent to be employed by 
 
 the executor, and such emplo} r ee received a sum of money, 
 
 and immediately made default, the executor would clear 
 
 himself by showing that the testator designated the person, 
 
 and that he could not by the exercise of reasonable diligence 
 
 recover the money. 1 
 
 Represent- Again, where property was bequeathed to trustees upon 
 surviving certain trusts, to be executed by them or the survivor of 
 trustee. them, or the assigns of such survivor, and one of the 
 trustees died, it was held, that the survivor might 
 bequeath the trust-property to trustees upon the trusts 
 of the original will. 2 " Where," said Lord Langdale, 
 " a trust-estate is limited to several trustees and the 
 survivor of them, and the heirs of the survivor, and no 
 power of appointing new trustees is given, we observe a 
 personal confidence given, or at least probably given, to 
 every one of the several trustees, as any one may be the 
 survivor; the whole power will eventually come to that 
 one, and he is entrusted with it, and being so, he is not, 
 without a special power to assign it to any other, he 
 cannot of his own authority, during his own life, relieve 
 himself from the duties and responsibilities which he has 
 undertaken. 
 
 " But we cannot assume that the author of the trust 
 placed any personal confidence in the heir of the survivor ; 
 it cannot be known beforehand which one of the several 
 trustees may be the survivor ; and as to the contingent 
 survivor, it cannot be known beforehand whether 
 he may have an heir or not, or whether the heir may 
 be one, or may consist of many persons, trustworthy 
 or not, married women, infants, or bankrupts, within or 
 without the jurisdiction. The reasons, therefore, which 
 
 1 Lewin, 7th Ed.. 245, citing Kilbee v. Sneyd, 2 Moll., 199 ; Doyle c. 
 Blake, 2 Sch. and Lef.. 232. 239. 
 
 2 Titley r. Wolstenholnie. 7 Beav.. 424. 
 
DELEGATION OF TRUST. 239 
 
 forbid the surviving trustee from making an assignment. LECTURE 
 
 O O * i 
 
 inter vivos, iu such a case, do not seem to apply to an 
 assignment by devise or bequest ; which being made to 
 take effect only after the death of the last surviving trustee, 
 and consequently after the expiration of all personal con- 
 fidence, may perhaps not improperly be considered as made 
 without any violation or breach of trust. It is to take 
 effect only at a time when there must be a substitution 
 or change of trustees, there must be a devolution or 
 transmission of the estate to some one or more persons not 
 immediately or directly trusted by the author of the 
 trust, and the estate subject to the trusts must pass 
 either to the hceres natus or hceres factus of the sur- 
 viving trustee, and if the heir or heirs-at-law, whatever 
 may be their situation, condition, or number, must be the 
 substituted trustee or trustees, the greatest inconvenience 
 may arise, and there are no means of obviating them other 
 than by an application to the Court. With great respect 
 to those who think otherwise, and quite aware that some 
 inconveniences which can only be obviated in the Court 
 may arise from devising trust-estates to improper persons 
 for improper purposes, I cannot at present see my way 
 to the conclusion, that in the case contemplated, the sur- 
 viving trustee commits a breach of trust by not permitting 
 the trust-estate to descend, or by devising it to proper 
 persons, on the trusts to which it was subject in the hands 
 of the surviving trustees." 
 
 And trustees are not liable to their cestuis que trustent Fnm.i by 
 for money belonging to the trust which a co-trustee gets C(J " trustee ' 
 into his possession without their consent or knowledge 
 and by a fraud upon them. Thus, where trustees drew a 
 cheque upon a banker, and crossed the cheque with the 
 names of other bankers, and delivered it over to one of 
 their number for the purpose of paying it into the bank 
 of the bankers with whose name the cheque was crossed, 
 it was held, that the co-trustees were not liable for the 
 misapplication of the money by the trustee to whom the 
 cheque was delivered. 1 
 
 If the trust is of a discretionary character, a trustee Discretion- 
 cannot delegate the execution of it under any circumstances arj b 
 either to a stranger or to a co-trustee, or co-executor, and 
 not only will the trustee so delegating be liable for any 
 
 1 Barnard v. Bagshaw, 3 DeG. J. and S., 355. 
 
240 JOINT NATURE OF OFFICE. 
 
 LECTUEE loss, but the exercise of the discretion by the substitute 
 
 IX - will be actually void. 1 
 
 Ministerial ^ trustee may carry out the ministerial portion of an 
 acts. act connected with the trust by attorney or proxy ; for 
 instance, if he has agreed to sell the trust-property, he may 
 execute the instrument transferring the property by his 
 attorney, for he does not delegate any portion of the 
 confidence reposed in him. 2 
 
 Liability of The agent of a trustee is not accountable to the cestuis 
 agent. que trustent, though a substituted trustee is, 3 and payment 
 to an agent authorized by trustees to receive trust-moneys 
 discharges the person paying the money. 4 An agent who 
 has been party to a breach of trust, will, however, be res- 
 ponsible to the cestuis que trustent. 5 
 
 Co-trustees The office of co-trustees is joint, they all form as it 
 1 a<t were one collective trustee, and therefore must execute 
 
 the duties of their office in their joint capacity. 6 An act 
 done by one may be subsequently approved by the other ; 
 but the approval must be strictly proved. 7 It is not 
 uncommon to hear one of several trustees spoken of as the 
 acting trustee, but the Court knows of no such distinction ; 
 all who accept the office are in the eye of the law acting 
 trustees. During the joint lives of the trustees if one 
 refuse to act, the other cannot act without him ; but the 
 trust devolves upon the Court. 8 
 
 All trustees It follows from this doctrine of unity among co-trustees, 
 
 U r VeTt ^ na ^ ^ ne y mus t &U ji n i n i ym a receipt; and that, unless 
 
 the instrument of trust specially provides that the receipt 
 
 of some or one of the trustees shall be a discharge, a 
 
 receipt not signed by all will be invalid. 9 So they must 
 
 and con- all join in a conveyance of the trust-estate. 10 
 
 veyance. 
 
 1 Alexander r. Alexander, 2 Ves., 643 ; Bradford v. Belfield, 2 Sim., 264; 
 Hitch v. Leworthy, 2 Hare. 200 ; Crewe v. Dicken, 4 Ves., 97 ; Attorney- 
 General v. Glegg, 1 Atk., 356. 
 
 * Attorney-General v. Scott, 1 Ves. Sr., 413 ; Ex parte Rigby. 19 Ves.. 463. 
 
 3 Myler v. Fitzpatrick, 6 Madd.. 360 ; Maw v. Pearson, 28 Beav., 196. 
 
 4 Robertson v. Armstrong, 28 Beav., 123. 
 
 5 Fyler v. Fyler, 3 Beav., 550. 
 
 6 Lewin, 7th Edn., citing Ex parte Griffin, 2 Gl. and J , 116. 
 
 7 Messeena v. Carr, L. R., 9 Eq., 260 ; Lee i\ Sankey, L. R., 15 Eq., 204. 
 
 8 Doyly v. Sherratt, 2 Eq. Cas. Abr. , 742 D. 
 
 9 See ante, p. 194 ; and Walker v. Symonds, 3 Swanst., 63 ; Hall v. Franck, 
 11 Beav., 519 ; Lee v. Sankey, L. R.. 15 Eq., 204. 
 
 10 Townley v. Sherborne, Bridg.. 35. 
 
JOINT NATUltE OF OFFICE. 241 
 
 If there are many trustees, the Court will order that the LECTUBB 
 trust-moneys may be paid to them or any two of them. 1 IX - 
 
 One of several executors may, on the insolvency of a Proo{ ia 
 debtor to the estate, prove the debt ; but one of several insolvency, 
 trustees cannot prove without the order of the Court. 2 
 
 There is an exception to the general rule that all trustees Exception 
 must join in executing the office, in the case of a trust of ca S r e U of ' n 
 a public character. There the act of the majority is to be public 
 considered the act of the whole body. 3 The majority of Uusu 
 course have no right to deal with the trust-property other- 
 wise than according to the true construction of the deed 
 of trust. 4 
 
 Where a special power is given to trustees, it cannot be Special 
 exercised by the majority only, but all must join ; if the P ower - 
 settlement, for instance, declares that, on the death or resig- 
 nation of a trustee, the surviving or continuing trustees 
 shall appoint a successor, it is apprehended that the ap- 
 pointment of the new trustee must be the joint act of all 
 the surviving or continuing trustees. 5 
 
 The Limitation Act 6 provides, that nothing in ss. 19 and Acknow- 
 20 renders one of several joint executors or mortgagees led e ment 
 chargeable by reason only of a written acknowledgment 
 signed, or of a payment made by, or by the agent of, any 
 other or others of them. This, corresponds with the 
 English law. 7 
 
 " As co-trustees are a joint body, the Court requires them, Costs of 
 unless under special circumstances, to defend a suit jointly; f,^ 1 " 
 and if they sever, the extra costs thereby occasioned must emiy. 
 be borne by the defaulting party. It is conceived that 
 this rule, so strictly observed in Court, must not be lost 
 sight of in transactions out of Court, and that co-trustees 
 are bound, unless they can show good reason to the con- 
 trary, to act by the same solicitor and the same counsel. 
 It would be a strange anomaly if four trustees were allow- 
 ed only one solicitor and one counsel in Court, and four 
 separate solicitors and four separate counsel out of Court. 
 
 1 Attorney-General r. Brickdale, 8 Beav., 223. 
 - E.I- parte Smith. 1 Deac., 391. 
 
 3 Wilkinson >: Malin. 2 Tyr.. 544; Younger r. Welham. 3 Swanst.. 180. 
 
 4 Ward r. Hipwell. 3 Giff.. 547. 
 
 5 Lewin. 7th Edn., 237, citing Re Congregational Church, Smethwick, 
 1 W. N., 196. As to stock in the name of trustees, see Lewin, 238. 
 
 8 XV of 1877. s. 21. 
 
 7 See Richardson r. Younge. L. R., 6 Ch., 478. 
 
 31 
 
242 REMUNERATION OF TRUSTEE. 
 
 LECTURE Every trustee should be prepared to act in harmony with 
 IX - his co-trustees, or he should not accept the office. It may 
 be said that as each trustee is responsible for the due 
 administration of the trust, he ought to be at liberty to 
 employ a professional adviser of his own choosing, but this 
 argument would, a, fortiori, apply to so important a matter 
 as the defence of a suit, and yet there the Court pays no 
 attention to it." l 
 
 We have seen that the Court will not, as a rule, interfere 
 with a discretionary power reposed in trustees, ante, p. 1 53. 
 But the Court has a controlling power over all trustees, 2 
 and will interfere when the discretion is mischievously 
 and ruinously exercised, as by leaving the trust-fund out- 
 standing on hazardous securities, 3 or where it is corruptly 
 exercised, 4 or not exercised in good faith/ or where the 
 trustees misbehave, 6 or decline to exercise the discretion. 7 
 In this last case the Court will not, as a matter of course, 
 exercise the discretion with which the trustees are invested, 
 but will follow its own established and known rules, unless 
 the intention of the testator plainly appears to exclude such 
 a mode of proceeding. 8 Where a case has been shown for 
 bringing the trustees before the Court, the Court, though 
 it will not control the discretion of the trustees, will still, to 
 use the words of Lord Hardwicke, "keep a hand over them." s 
 
 Injunction. The Court may, if necessary, interfere by injunction. 10 
 If the act complained of would be irremediable, the Court 
 will interfere as a matter of course. 11 
 
 Remunera- A trustee, as such, has no right to any remuneration for 
 
 troubled his trouble, skill, or loss of time in executing the trust, for 
 
 the office, in the absence of any express stipulations between 
 
 the author of the trust and the trustee, is a purely honor- 
 
 1 Lewin, 7th Edn., 238. 
 
 2 In re Hodges, Davey v. Ward, L. E., 7 Ch. Div., 761. 
 
 3 De Manneville v. Crompton, 1 V. and B., 359. 
 
 4 Potter v. Chapman. Ainbl., 99 ; French v. Davidson, 3 Madd., 402 ; 
 Talbot v. Marshfield, L. R., 3 Ch., 622 ; Thacker v. Key, L. R., 8 Eq., 408. 
 
 5 Byam v. Byam, 19 Beav., 65 ; Re Wilkes's Charity, 3 Mac. and G., 440. 
 
 6 Attorney-General v. Glegg, Ambl., 584. 
 
 7 Gude r. Worthington, 3 DeG. and Sm., 389 ; In re Sanderson's 
 Trusts, 3 K. and J.. 497. 
 
 8 Prendergast v. Prendergast, 3 H. L. C., 197. 
 
 * Attorney-General v. Governors of Harrow School, 2 Ves., 651. 
 
 10 Balls v. Strutt, 1 Hare, 146 ; M'Fadden v. Jenkyns, 1 Ph.. 153. 
 
 11 In re Chertsey Market, 6 Price, 279 ; and see Kerr on Injunctions, 
 2nd Edn., 461. 
 
REMUNERATION OF TRUSTEE. 243 
 
 ary one. The leading case on this point is Robinson v. LECTUBE 
 Pett. 1 There Lord Talbot, L. G., said : " It is an established IX - 
 rule, that a trustee, executor, or administrator shall have 
 no allowance for his care and trouble ; the reason of which 
 seems to be, for that, on these pretences if allowed, the 
 trust-estate might be loaded and rendered of little value : 
 besides, the great difficulty there might be in settling and 
 adjusting the quantum of such allowance, especially as one 
 man's time may be more valuable than that of another ; and 
 there can be no hardship in this respect upon any trustee 
 who may choose whether he will accept the trust or not." 
 
 " The reason of the rule," said Lord Cottenham, 2 " is well 
 stated in Robinson v. Pett. It is not because the trust- 
 estate is in any particular case charged with more than it 
 might otherwise have to bear, but that the principle, if 
 allowed, would lead to such consequences in general." 3 
 " The true ground, however," says Mr. Lewin, 4 " is, that if 
 the trustee were allowed to perform the duties of the office, 
 and to claim compensation for his services, his interest 
 would be opposed to his duty, and as a matter of prudence, 
 the Court would not allow a trustee or executor to place 
 himself in such a false position." 5 
 
 The rule extends to all persons who acquire a fiduciary 
 character. Thus, an agent who becomes executor is not 
 entitled to charge commission on business done subse- 
 quently to the testator's death, 6 nor if he sells as trustee 
 will he be allowed more than expenses out of pocket. 7 So 
 an auctioneer, who is also mortgagee, cannot charge com- 
 mission for selling the mortgaged property; 8 and it is a 
 general rule that a mortgagee shall not be allowed to charge 
 for receiving the rents of the mortgaged property per- 
 sonally. 9 A receiver is not entitled to compensation for 
 trouble in doing acts which have not been ordered. 10 Nor 
 is the committee of a lunatic's estate entitled to any remu- 
 
 1 3 P. Wms.. 132. 
 
 Moore r. Frowd, 3 My. and Cr., 50. 
 
 3 See also Hamilton v. Wright, 9 C. and F., 111. 
 
 4 7th Edn., 537. 
 
 5 And see Burton v. Wookey, 6 Madd., 368. 
 
 6 Sheriff v. Axe, 4 Russ.. 33. 
 
 7 Kirkman v. Booth, 11 Beav., 273 ; Arnold r. Garner, 2 Ph., 231. 
 
 8 Matthison v. Clarke. 3 Drew., 3. 
 
 Bonithon r. Hockmore, 1 Vern., 316 ; Langstaffe r. Fenwick, 10 Ves., 
 405 ; Nicholson r. Tutin. 3 K. and J., 159. 
 
 10 In re Ormsby, 1 B. and B., 189. 
 
REMUNERATION CF TRUSTEE. 
 
 LECTURE 
 IX. 
 
 Carrying 
 on business 
 
 Surviving 
 partner 
 
 trustee. 
 
 Solicitor 
 trustee. 
 
 neration for his trouble. Where any allowance is made, 
 jt is not for his sake, but for the benefit of the estate, as 
 where rents cannot be effectually collected by the committee 
 without assistance. 1 
 
 If a surviving partner carries on the business of the 
 partnership retaining the deceased partner's capital in the 
 concern, he will be considered as a constructive trustee, and 
 will have to account for the profits ; but proper allowances 
 will be made for the management of the business, 2 and the 
 amount of the allowances may be fixed by the Court 
 without an enquiry. 3 
 
 If, however, the surviving partner is an express trustee or 
 an executor, he will not, as a general rule, in the absence of 
 any direct stipulation, be entitled to an allowance for carry- 
 ing on the business, 4 or to make any charge for his 
 trouble or loss of time, although great advantages may 
 have accrued to his cestuis que trustent ; as where he has 
 carried on a trade or business with great personal trouble, 
 and at a great sacrifice of time, he will not be allowed to 
 charge for more than out-of-pocket expenses : and even 
 settled accounts upon the footing of such charges will be 
 set aside. 5 
 
 A solicitor who sustains the character of trustee will not, 
 unless there be an agreement for the purpose, 6 be per- 
 mitted to charge for his time, trouble or attendance, but 
 only for his actual disbursements. 7 " It would," said Lord 
 Lyndhurst, " be placing his interest at variance with the 
 duties he has to discharge. It is said, the bill may be 
 taxed, but that would not be a sufficient check : the estate 
 has a right not only to the protection of the taxing officer, 
 but also to the vigilance and guardianship of the executor 
 or trustee : a trustee placed in the situation of a solicitor 
 
 1 Re Walker, 2 Phillips, 630 ; Re Westbrooke, ib., 631 ; Anon., 10 Ves., 
 103. 
 
 2 Crawshay v. Collins, 15 Ves.. 225 ; Brown v. De Tastet, Jac., 284 ; 
 Wedderburn v. Wedderburn, 22 Beav., 117. 
 
 3 Forster v. Ridley, 4 DeG. J. and S.. 452. 
 
 4 Burden v. Burden, 1 V. and B., 170; Brocksopp v. Barnes, 5 Madd., 
 90 ; Stocken v. Dawson, 6 Beav.. 371. 
 
 5 Brocksopp v. Barnes, 5 Madd., 90 ; Ayliffe v. Murray. 2 Atk., 58 ; 
 Barrett v. Hartley, L. R., 2 Eq., 789. 
 
 6 In re Sherwood, 3 Beav., 838. 
 
 . 1'jGomley f. Wood, 3 J. and Lat., 678 ; Moore v. Frowd, 3 M. and Cr., 
 45 ; Fraser r. Palmer, 4 Y. and C., 515 : Brouffhton t\ Broughton 5 D. 
 M. G., 160. 
 
REMUNERATION OF TRUSTEE. 245 
 
 might, if allowed to perform the duties of a solicitor and LECTUBB 
 to be paid for them, find it very often proper to institute IX - 
 and cany on legal proceedings, which he would not do if 
 he were to derive no emolument from them himself, and 
 if he were to employ another person." 1 And the rule is 
 not restricted to cases of express trusts, but applies to the 
 case of an executor or trustee, though there be no express 
 trust. 2 
 
 When a solicitor has liberty to charge for his professional Extent of 
 services, he can only charge for services strictly profes- allowed, 
 sional, and not for matters which an executor ought to have 
 done without the intervention of a solicitor, such as attend- 
 ance to pay premiums on policies, attending at the bank 
 to make transfers, attendances on auctioneers, legatees, and 
 creditors. 3 The rule applies even where the business is 
 done by the solicitor's partner, who is not a trustee. 4 If, 
 however, the business is done exclusively by the partner 
 and he alone receives the costs to the exclusion of the 
 trustee-partner, the charge will be allowed ; 5 and so will the 
 costs of an agent, also a solicitor, for professional work. 6 
 In one case it was held, that a solicitor, a trustee, might act 
 for his cestuis que trustent or himself, and his co-trustees 
 or cestuis que trustent, provided the costs were not in- 
 creased thereby. 7 But this case has been since disapproved 
 of by the House of Lords in Manson v. Baillie? where 
 Lord Cranworth, C., said, that " the true principle is, that 
 each trustee should be a check and control on each and 
 all of the co-trustees a principle which is placed in danger 
 by the allowance of a pecuniary profit." 
 
 And in another case, 9 Lord Cranworth said : " The rule 
 applicable to the subject has been treated at the bar, as 
 if it were sufficiently enunciated, by saying, that a trustee 
 shall not be able to make a profit of his trust ; but that is 
 not stating it so widely as it ought to be stated. The 
 
 1 Lewin. 7th Edn.. 540. citing New v. Jones, 9 Jarm. Free., 338. 
 
 2 Pollard r. Doyle, 1 Dr. and Sin., 319. 
 
 3 Harbin v. Darby, 28 Beav., 325. 
 
 4 Collins r. Cary, 2 Beav., 129 ; Christopher v. White, 10 Beav., 523 ; 
 Lincoln v. "\Vindsor, 9 Hare, 158 ; Lyon v. Baker, 5 Deft, and Sm., 622 ; 
 Cradock v. Piper. 1 Mac. and G., 664. 
 
 5 Clacke v. Carlon. 7 Jur., N. S., 441 ; Mackintosh r. Xobinmoney 
 Dossee. 2 Ind. Jur., 162. 
 
 6 Burge v. Brutton, 2 Hare, 373. 
 
 7 Cradock r. Piper, 1 Mac. and G.. 664. 
 
 8 2 Macq., 80. * Broughton r. Broughton, 5 D. II. G., 164. 
 
246 
 
 REMUNERATION OF TRUSTEE. 
 
 IX. 
 
 Costs. 
 
 LECTURE rule really is, that no one who has a duty to perform 
 shall place himself in a situation to have his interests 
 conflicting with that duty, and a case for the application 
 of the rule is that of a trustee himself doing acts which 
 he might employ others to perform, and taking payment 
 in some way for doing them. As the trustee might make 
 the payment to others, this Court says, he shall not make 
 it to himself; and it says the same in the case of agents, 
 where they may employ others under them. The good 
 sense of the rule is obvious, because it is one of the duties 
 of a trustee to take care that no improper charges are 
 made by persons employed for the estate." 
 
 In In the Matter of the Port Canning Land Co.} Phear, 
 J., drew a distinction between the case of a trustee and a 
 director of a public company, and allowed the claim of the 
 partner of one of the directors who did work for the 
 company as a solicitor, there being nothing to show that 
 he had not been duly appointed by the directors. 
 
 A solicitor, who is also a trustee, who invests trust- 
 money on a mortgage, and is employed as the mortgagor's 
 solicitor, and is paid by him, is not chargeable at the suit 
 of the cestui que trust with the profit thus made. 2 
 
 A solicitort-rustee, who acts for himself in a suit, will 
 be entitled to his costs against parties who unsuccessfully 
 attempt to set aside the trust-deed. 3 
 
 Securities given to a solicitor-trustee to cover costs to 
 which he would not be entitled, will be set aside even as 
 against a purchaser for value who had notice. 4 
 
 Where a trustee is appointed by the Court, and the 
 nature of the trust is such that he is fairly entitled to 
 compensation, he should take care to arrange for his 
 remuneration before he accepts the office. 5 In Marshall v. 
 Holloway, 6 the decree, after reciting that the nature and 
 circumstances of the estate of the testator required the 
 application of a great proportion of time by and on the 
 part of the trustees for the due execution of the trusts 
 of his will in regard to his estate, and that they could not 
 
 Trustee 
 appointed 
 by Court. 
 
 1 6 B. L. R , 276. 
 
 2 Whitney v. Smith, L. R., 4 Ch., 513. 
 
 8 Pince v. Beattie, 9 Jur., N. S., 1119 ; see York v. Brown, 1 Coll., 2GO. 
 4 Gomley v. Wood, 3 J. and Lat., 678. 
 
 * Brocksopp i: Barnes. 5 Madd., 90 ; Morison r. Morison, 4 M. and C., 
 215 ; Newport v. Bury, 23 Bcav., 30. 
 
 * 2 Swanst., 453. 
 
REMUNERATION OF TRUSTEE. 247 
 
 undertake to continue the execution of the trusts without LECTUBE 
 the aid and assistance of A as a co-trustee, he having IX - 
 daring the life of the testator had the principal and con- 
 fidential management thereof, and being better acquainted 
 therewith than any other person, and that therefore 
 it would be for the benefit of the said testator's estate 
 that he should continue to be a trustee thereof, and 
 the said A alleging that due attention to the affairs and 
 concerns of the said testator would require so much of his 
 time and attention as would be greatly prejudicial to his 
 other pursuits and concerns in business, and therefore that 
 he would not have undertaken to act therein, but under 
 the assurance that an application would be made to the 
 Court to authorize the allowance and payment of a reason- 
 able compensation out of the testator's estate for such his 
 labour and time, and that he could not continue to act 
 therein without such reasonable allowance being made to 
 him, ordered a reference to settle a reasonable allow- 
 ance to be made to A out of the testator's estate for his 
 time, pains, and trouble in the execution of the trusts. 
 
 The Court will not allow a trustee to make professional p ro fes- 
 charcjes for professional business done by him for the trust, s j onal 
 
 c J.T it i_ v a.i_ charges not 
 
 unless, of course, there is express authority given by the allowed, 
 settlor, for, to do so would be to place a person, having a 
 duty conflicting with his interest, in the position of having 
 to make out his own bill against himself, leaving any error 
 which might occur to be settled and set right at some 
 future occasion; but the Court will only allow him a salary. 1 
 
 A cestui que trust is not estopped by a settled account Settled 
 with or release to his trustee, a solicitor, if he had no account, 
 independent legal advice ; 2 but otherwise if he had. 3 
 
 The author of the trust himself may, of course, direct Remuner- 
 a salary or other payment, or costs as between solicitor y lon ai fjioj 
 and client, to be made to the trustee, to which he would of trust, 
 not be entitled without such direction ; 4 and if the precise 
 amount is not fixed, an enquiry will be directed to ascer- 
 tain what will be a proper remuneration. 5 
 
 1 Bainbrigge v. Blair, 8 Beav., 595. 
 
 2 Todd i). Wilson, 9 Beav., 486. 
 
 3 Stones v. Parker, 9 Beav., 385 ; Re Wyche, 11 Beav., 209. 
 
 4 Robinson v. Pett, 1 P. Wms.. 132 ; Webb v. Earl of Shaftesbury, 
 7 Ves., 480 ; Baker v. Martin, 8 Sim., 25 ; Douglas v. Archbutt, 2 DeG. 
 and J,, 148. 
 
 5 Ellison v. Airey, 1 Ves., 115; Willis v. Kibble, 1 Beav., 559; Jack- 
 son v. Hamilton, 3 J. and Lut., 70:.'. 
 
248 REMUNERATION OF TRUSTEE. 
 
 LECTURE And where the instrument of trust does not make any 
 IX< provision for the remuneration of the trustees, they may, 
 Contract nevertheless, contract with the cestuis que trustent, if the 
 for reinu- latter are competent to contract, for an allowance for time 
 an d trouble expended in the administration of the trust. 1 
 In Ayliffe v. Murray? Lord Hardwicke said: "Whether 
 upon general grounds a trustee may make an agreement 
 with his cestui que trust for an extraordinary allowance, 
 over and above what he is allowed by the terms of the 
 trust, I think there may be cases where this Court would 
 establish such agreements, but at the same time would be 
 extremely cautious and wary in doing it. In general, this 
 Court looks upon trusts as honorary, and a burthen upon 
 the honour and conscience of the person intrusted, and not 
 undertaken upon mercenary views ; and there is a strong 
 reason too against allowing anything bej'ond the terms of 
 the trust, because it gives an undue advantage to a trustee 
 to distress a cestui que trust, and therefore this Court has 
 always held a strict hand upon trustees in this particular. 
 If a trustee comes in a fair and open manner, and tells the 
 cestui que trust that he will not act in such a troublesome 
 and burthensome office, unless the cestui que trust will give 
 him a further compensation, over and above the terms of 
 the trust ,and it is contracted for between them, I will not 
 say this Court will set it aside, though there is no instance 
 where they have confirmed such a bargain." 
 
 The contract should in its terms explain the arrange- 
 ment, and if the trustee is a solicitor, the cestui que trust 
 should have independent professional advice. 3 
 
 If the trustee fail from any cause to perform his part 
 
 of the contract, the charges will not be allowed. 4 
 
 Gift con- If a gift is coupled with a duty, the duty must be per- 
 
 5utv. WUh formed in order to entitle the donee to claim the gift. 
 
 Thus, if a bequest is given to an executor as remuneration 
 
 for his trouble, he will not be entitled to claim it unless 
 
 he proves the will and acts, 5 even though he is prevented 
 
 by the act of God, as in the case of severe illness, from 
 
 taking out probate. 6 So a gift of an annuity to a trustee, 
 
 1 Douglas v. Archbutt, 2 DeG. and J., 148. 
 
 2 2 Atk.. 58. 
 
 3 Moore v. Frowd. 3 M. and Cr.. 46. 
 
 4 Gould v. Fleetwood. 3 P. Wms., 251, n. (a). 
 
 5 Slaney v. Watney, L. R., 2 Eq.. 418. 
 
 Hanbury v. Spooner, 5 Beav., 630 ; Re Hawkins Trusts, 33 Beav.. 570. 
 
REMUNERATION OF TRUSTEE. 249 
 
 so long as he shall continue in the office of trustee, will de- LECTUEE 
 termine on the cesser of active trusts by the payment of the Ix> 
 whole of the trust-property to a person absolutely enti- 
 tled, without a devolution of the office of trustee on any 
 other person. 1 
 
 Although a person acting in a fiduciary capacity may Expenses 
 not charge anything for his trouble, yet he may, as we of a K ent - 
 have already seen, 2 employ paid agents. So if an executor 
 employs a solicitor t<> do business for him in the manage- 
 ment of the testator's affairs, he will be allowed what he 
 pays the solicitor for such business, 3 unless the business 
 is such as he should have transacted himself. 4 
 
 If the accounts be complicated, and the executor or 
 trustee take upon himself to adjust and settle them, 
 although it may take up a great deal of his time and 
 attention, the principle of equity is, that he cannot claim 
 compensation ; but if he choose to save his own trouble by 
 the employment of an accountant, he is entitled to charge 
 the trust-estate with it under the head of expenses. 5 
 
 Curators appointed under Act XIX of 1841 are allowed Curators 
 to receive remuneration at such rate as the Judge shall n 
 think reasonable, but in no case exceeding 5 per cent 
 on the personal property and on the annual profits 
 of the real property of the person whose estate has been 
 taken charge of (s. 7). And the public curator and every 
 other administrator to whom a certificate has been granted and Act 
 under s. 10 of Act XL of 1858 is entitled to commission ^ g o 
 at a rate not exceeding 5 per cent on the sums received 
 and disbursed by him, or such other allowance to be paid 
 out of the minor's estate as the Civil Court shall think 
 fit (s. 24). 
 
 The Official Trustee is entitled by way of remuneration official 
 in respect of all trust-property in his hands to commis- Trustee, 
 sion on all capital moneys received by him, of one and-a- 
 half per cent on receipt ; on all capital moneys invested by 
 him, a commission of one and-a-half per cent on invest- 
 ment ; on all sums received by him by way of interest or 
 dividends in respect of moneys invested, a commission of 
 
 1 Hull v. Christian, L. R., 17 Eq., 546. 
 Ante, p. 212. 
 
 3 Macnamara v. Jones. 2 Dick. 587. 
 
 4 Harbin v. Darby, 28 Beav., 325. 
 
 5 Lewin, 7th Bdn., 543. citing New r. Jones. 9 Jarm. Free.. 338 ; 
 Henderson v. Mclver, 3 Mad. , 275. 
 
 32 
 
250 
 
 TRUSTEE NOT TO PROFIT BY TRUST. 
 
 LECTURE three quarter per cent, and on all rents collected by liim, 
 JX * a commission of two aiid-a-half per cent. (Act XVII of 
 
 1864, s. 11). 
 
 ator nis ~ Formerly, administrators in this country to the estates 
 General, of persons dying abroad were allowed a commission of 5 
 per cent upon receipts or payments. This practice, how- 
 ever, was abolished in the Presidency of Bengal by Act VII 
 of 184<9, and in the Presidencies of Madras and Bombay by 
 Act II of 1850 ; and now it is provided by the Administrator- 
 Generals' Act 1 that " no person other than the Administra- 
 tor-General acting officially shall receive or retain any com- 
 mission or agency charges for anything done as executor 
 or administrator under any probate or letters of administra- 
 tion, or letters ad colligenda bona which have been granted 
 by the Supreme Court or High Court at Fort William in 
 Bengal since the passing of Act No. VII of 1849, or by 
 either of the Supreme or High Courts at Madras and Bom- 
 bay since the passing of Act II of 1850, or which shall have 
 been or shall be granted by any Court of competent juris- 
 diction within the meaning of ss. 187 and 190 of the 
 Indian Succession Act." It is illegal, therefore, for any person 
 other than the Administrator-General to charge commis- 
 sion for administering estates. 2 Section 52 of the Act pro- 
 vides, that the Administrator-General of Bengal shall be 
 entitled to commission at the rate of 3 per cent, and 
 the Administrators-General of Madras and Bombay respec- 
 tively at the rate of 5 per cent upon the value of the assets 
 which they respectively collect and distribute in due course 
 of administration. The section does not apply to the pro- 
 perty of officers and soldiers dying on service (s. 53). And 
 s. 55 authorizes the Governor-General in Council to alter 
 the rates of commission. 
 
 Trustee 
 
 makeapro 
 fit from 
 
 lce ' 
 
 It is an invariable rule that a trustee shall gain no 
 benefit to himself by any act done by him as trustee, but 
 that all his acts shall be for the benefit of his cestui que 
 trust. This rule was established in order to keep trustees 
 in the line of their duty. 3 So that wherever a trustee, or 
 one standing in the relation of a trustee, violates his duty, 
 and deals with the trust-estate for his own behoof, he must 
 account to the cestui que trust for all the gain which he has 
 made ; as where a profit is made by employing trust- 
 
 1 II of 1874, s. 50. 2 In re Cowie. I. L. R.. 6 Calc.. 77. 
 
 1 O'Herlihy r. Hedges, 1 Sch. and Lef., 126, jw Lord Redesdale. 
 
EMPLOYING TRUST-FUNDS IN TRADE. 251 
 
 money in buying and selling land, or stock, or in a commer- LECTUBK 
 cial adventure, in all these cases the profit made by the 
 transaction will not be allowed to go to the trustee, who 
 has so applied the money, but to the cestui que ti^ust, whose 
 money has been so applied. In like manner, where a trus- 
 tee or executor has used the fund committed to his care in 
 stock speculations, though the loss, if any, must fall upon 
 himself, yet for every farthing of profit he may make he 
 will be accountable to the trust-estate. So, if he lay out 
 the trust-money in a commercial adventure, as in buying or 
 fitting out a vessel for a voyage, or put it in the trade of 
 another person, from which he is to derive a certain stipu- 
 lated profit, he must account for the profits received by 
 the adventure or from the concern. 1 And the rule applies 
 to a mortgagee, who is not allowed to have more out of the 
 mortgage-fund than his principal and interest. 2 It does 
 not matter that the original trust-fund has not been im- 
 paired ; the rule is based on the principle that a trustee shall 
 not be allowed to do an act which brings his private inter- 
 ests and his duty to the trust in conflict. 3 
 
 So, if a trustee or executor employs trust-funds in his Employing 
 own business, he must account to his cestuis que ti'ustent {"'trade" ' 
 for all profits made by so employing the trust-funds, and 
 he will be liable for all losses. 4 " If," said Lord Cairns, 5 " a 
 partner in a trading firm dies, and if he constitutes one or 
 more of his copartners his executors, and if there is nothing 
 special in the contract of copartnership, and if the assets 
 of the testator are not withdrawn from the copartner- 
 ship, but are left in it, and no liquidation is arrived at, no 
 settlement of accounts come to, it is a trite and familiar 
 rule in the Court of Chancery to hold, that the estate of 
 that testator is, to all intents and purposes, entitled to the 
 benefit of a share in the profits which are made in the 
 trade after his death. And if this should happen, which is 
 the principle of another class of cases, that the partnership 
 
 1 Docker v. Somes, 2 M. and K, 664 ; Burgess v. Wheate. 1 Eden, 177 ; 
 Middleton r. Spicer, 1 Bro. C. C.. 201 ; Ex parte Andrews. 2 Rose, 412. 
 
 2 Gubbins r. Creed, 2 Sch. and Lef., 218 ; see also Baldwin v. Bannister, 
 3 P. Wms., 251 (A) ; Dobson r. Land, 8 Hare, 220 ; Arnold r. Garner, 
 2 Ph.. 231 ; Matthison r. Clarke. 3 Drew., 3. 
 
 3 Hamilton v. Wright, 9 C. and F., 111. 
 
 4 Docker r. Somes. 2 M. and K.. 655 ; Wedderburn v. Wedderburn, 
 2 Keen, 722 ; Willett v. Blandford, 1 Hare. 253 ; Parker r. Bloxam, 
 20 Beav.. 295 ; Cummins r. Cummins, 8 Ir. Eq.. 723 ; Townend v. Townend, 
 1 Giff., 201. s Vyse r. Foster L. R., 7 H. L., 329. 
 
25*2 COMPOUNDING DKBTS. 
 
 LECTURE articles have given the surviving partners an option to take 
 IX- to the interest of the testator on certain terms, at a certain 
 price to be fixed by arrangement after the death of the 
 testator, an option or power which may be accepted or 
 refused, but which, if accepted and acted upon, must be 
 acted upon according to the terms on which it is given if, 
 I say in a case of that kind, the surviving partners or one or 
 more of them, being also executors of the deceased partner, 
 are found not to have pursued exactly the terms of the power 
 or option which has been given, there ag;iin the power or 
 option to become purchasers of the interest of the testator 
 after his death falls to the ground, and the partnership 
 remains an unliquidated partnership, to a due share of the 
 profits of which the estate of the testator will continue to 
 be entitled until liquidation actually takes place. It is 
 a rule without exception, that to authorize executors to 
 carry on a trade with the property of their testator, there 
 must be the most distinct and positive authority and 
 direction given by the will itself for that purpose." ] 
 Compound- Upon these principles, if executors or trustees com- 
 ing debts p 0uno l debts or mortgages, and buy them in for less than 
 
 or inort 
 
 gages and is due thereon, they will not be allowed to take the bene* 
 purchasing g^ o f the purchase themselves ; but other creditors and 
 legatees will have the advantage of it, and for want of 
 them, the benefit will go to the party entitled to the sur- 
 plus ; whereas if one who acts for himself, and is not in the 
 circumstances of an executor or trustee, buys in a mort- 
 gage or debt for less than is due, or for less than it is 
 worth, he will be allowed all that, is due thereon. 2 
 Purchase But the rule that a trustee cannot purchase applies 
 for benefit O nly where the trustee purchases for his own benefit. If 
 que trust, he buys for the benefit of his cestuis que trustent, and they 
 repudiate the transaction, and it subsequently turns out 
 to be profitable, they cannot claim the benefit. 3 
 
 Cestui que So strongly do Courts of Equity object to allowing a 
 trust can- trustee to make any profit out of the trust-estate, that it 
 trusfee. 6 1 has been held that a cestui que trust cannot give a bene- 
 fit to his trustee. 4 
 
 1 Kirkman v. Booth, 11 Beav., 273. 
 
 2 Robinson v. Pett. 3 P. Wins., 251 (A) ; Anon,. \ Salk., 155 ; Darcy 
 7-. Hall. 1 Vern, 49 ; Ex parte Lacey. 6 Ves., 625; Fosbrooke v. Balguy, 
 1 M. & K, 226 ; Pooley v. Quilter, 2 DeG. & J., 327 ; Mackintosh i: Nobin- 
 money Dossee, 2 Ind. Jur., 162. 
 
 3 Barwell v. Harwell, 34 Beav., 371. 
 
 4 Vaughton c. Noble, 30 Beav., 39. 
 
PARTNERS. 253 
 
 Th3 rule tliat a trustee shall not be allowed to make a LECTUBE 
 profit out of the trust-property, applies not only to cases 
 where there is an express trust, and a certain fund is in R,,i e 
 the hands of trustees to be applied in a particular manner applies to 
 for the benefit of particular persons, but to all cases in ^ ry re ?al~ 
 which persons stand in a fiduciary relation to each other, "ons. 
 
 Thus, partners are bound to use the joint property for Partners, 
 the benefit of all the owners, and one partner will not be 
 allowed to make profit to himself out of the partnership 
 transactions. 1 And if, after a partnership has terminated, 
 whatever the cause of the termination may be, one part- 
 ner carries on the partnership business and retains the 
 share of the outgoing partner in the business, he must 
 account for the profits which he makes by the money he 
 has retained, 2 subject to "just allowances" for special 
 skill, industry, or other matters, by which profit is gained 
 apart from the use of capital. 3 
 
 In Ktiox v. Gye 4 a difference of opinion arose as to 
 whether a surviving partner was a trustee for the repre- 
 sentatives of a deceased partner. Lord Westbury said: 
 " There is nothing fiduciary between the surviving partner 
 and the dead partner's representatives, except that they may 
 respectively sue each other in equity. There are certain 
 legal rights and duties which attach to them ; but it is a 
 mistake to apply the word ' trust ' to the legal relation 
 which is thereby created." Lord Hatherley, on the other 
 hand, said : " I thought it was an elementary principle of 
 law that the partnership, which at law survives to the 
 surviving partner, which carries to him at law the whole 
 interest in the partnership assets, which, treating him as 
 a joint tenant, vests the whole of the partnership estates 
 in him, was always subject to the doctrine of a Court of 
 Equity ; that, in equity, the interest of a partner in the 
 partnership is that of a tenancy in common as between 
 the two partners : so that the executors of a deceased part- 
 ner have an interest in those assets which the surviving 
 
 1 Crawshay v. Collins, 15 Ves., 218 ; Bentley v. Craven, 18 Beav., 75 ; 
 Parsons r. Hayward. 31 Beav., 199. 
 
 2 Crawshay v. Collins, 15 Ves.. 218 ; Brown v. De Tastet, Jac., 284 ; 
 Wedderburn v. Wedderburn, 2 Keen, 722 ; Flockton r. Banning, L. R., 
 8 Ch., 323 n. (6) ; Ramlal Thakursidas . Lakhmichand Muniram, 1 Bom., 
 Apx.. Ix. 
 
 3 Brown r. De Tastet, Jac.. 281 ; Willett r. Blandford, 1 Hare, 253 ; 
 Docker r. Somes. 2 M. & K., 662. 
 
 < L. R., 5 H. L., 656. 
 
254 GENERAL EXTENT OF RULE. 
 
 LECTTOE partner alone can get at, and that the surviving partner 
 IX - alone having a legal interest in the property, there arises, 
 necessarily, a right, as between the executors of the de- 
 ceased partner and him, to insist upon his holding those 
 assets, which he so collects, according to the partnership 
 interest, or subject to the share which the executors of the 
 deceased partner, in right of their testator, are entitled to 
 claim, so much so, that it is trite law that a surviving 
 partner cannot make use of the assets of a deceased part- 
 ner without being accountable for the use he has made of 
 them. The executors of the deceased partner have a right 
 to a sale of every portion of the partnership property. So 
 completely are they held to be in a fiduciary position, so 
 completely are the assets, including the plant or houses, 
 the machinery or stock-in-trade, or whatever the descrip- 
 tion of property may be that comes into the hands of the 
 surviving partner by right of his survivorship at law, and 
 which are all vested in that surviving partner by right of 
 his survivorship at law, held to be property in all of 
 which, whether they are chattels of the partnership, or 
 estates of the partnership, the executors of a deceased 
 partner have an interest commensurate with the extent 
 of the share of their testator. They have a right, there- 
 fore, to have that property so disposed of, that it may be 
 applied under the direction of a Court of Equity according 
 to the equitable rights between the partners." 
 
 Purchasing There is nothing, however, which prevents a surviving 
 share of partner from purchasing the share of a deceased partner 
 
 deceased i. . . . . 
 
 partner, from his representatives. 1 
 
 Instances The principle that a person holding a fiduciary position 
 of rule. shall not obtain for himself a benefit from the trust-funds, 
 extends to an agent becoming a trustee or executor ; 2 guar- 
 dians 3 (who are trustees of such property only as comes 
 to their hands) ; 4 directors of companies, who cannot be 
 allowed to make a profit out of work done by them for the 
 company beyond their regular salary as directors, 5 unless 
 
 1 Chambers v. Howell, 11 Beav., 6. As to the effect of an heir or 
 devisee purchasing an incumbrance, see Lewin, 7th Edn.. 256. 
 
 2 Sheriff v. Axe, 4 Russ., 38 ; Morret v. Paske, 2 Atk., 64. 
 
 3 Powell v. Glover, 3 P. Wms., 251 (). 
 
 4 Sleeman v. Wilson. L. R., 13 Eq., 41. 
 
 s Great Luxembourg Railway Company r. Magnay, 25 Beav., 586 ; Im- 
 perial Merchantile Credit Association v. Coleman, L. R., 6 Ch.. 558 ; L. R., 
 6 H. L., 189 ; Parker v. M'Kenna, L. R., 10 Ch., 96 ; In re Imperial Land 
 Co. of Marseilles, Ex partc Larking, L. R., 4 Ch. Div., 566. 
 
RETIRING FOR CONSIDERATION. 255 
 
 the articles of association of the company expressly stipu- LECTURE 
 late that they may do work for the company in their pri- IX - 
 vate capacity, and receive remuneration for the work so 
 done. 1 And the rule applies to the officers of companies, 2 or 
 promoters, 3 inspectors under creditor's deeds ; 4 and it has 
 been held to extend to the mayor of a corporation. 5 So a 
 broker, 6 or auctioneer, 7 who assumes a fiduciary position, 
 cannot charge commission for selling the trust-property 
 unless expressly authorized to do so by the will. 8 In 
 Morison v. Morison? an executor and trustee was appoint- 
 ed a consignee, with the usual profits, by the Court, the 
 appointment being for the benefit of the estate. And trus- 
 tees who are bankers cannot advance money to the trust 
 at compound interest, although such a course of procedure 
 may be usual ; but can only charge simple interest. 10 A 
 trustee will not, as a general rule, be appointed a receiver, 
 the principle being that the person who accepts the office 
 of trustee engages to do the whole duty of a receiver with- 
 out emolument. And if a receiver is appointed, the Court 
 looks to the trustee to examine with an adverse eye, to see 
 that the receiver does his duty. The consequence is, that 
 a trustee is seldom appointed receiver, and only when he 
 engages to act without emoluments. 11 
 
 o o 
 
 Where a testator appointed two trustees as executors Trustee 
 of his will, but by a codicil he excluded them and appointed retiring for 
 two other persons, one of whom retired in consideration of at 
 a sum of money paid to him by one of the excluded trus- 
 tees, and executed a deed appointing the excluded trustee 
 to act as trustee in his room, the Court directed the new 
 trustee to be removed and the deed to be cancelled, declared 
 the conveyance to be void, and directed the purchase-money 
 to form part of the assets. 12 
 
 1 Imperial Merchantile Credit Association v. Coleman, L. R., 6 Ch., 
 658 ; see In re The Port Canning Co.. 6 B. L. R., 278. 
 
 2 In re Morvah Mining Co., McKay's Case, L R.. 2 Ch. Div., 1. 
 
 3 New Sombrero Phosphate Co. v. Erlanger, L. R., 5 Ch. Div., 73 ; Bag- 
 nail . Carlton, L. R.. 6 Ch. Div.. 371. 
 
 4 Chaplin v. Young (No. 2), 33 Beav., 414. 
 
 5 Bowes v. The City of Toronto, 11 Moore's P. C. C., 463. 
 
 6 Arnold v. Garner, 2 Phillips, 231. 
 
 7 Matthison v. Clarke, 3 Drew., 3 ; Kirkman v. Booth, 11 Beav., 273. 
 
 8 Douglas v. Archbutt, 2 DeG. and J., 148. 
 
 9 4 M. and Cr., 215. 10 Crosskill v. Bower, 32 Beav., 86. 
 
 11 v. Jolland, 8 Ves., 72 ; Sykea v. Hastings, 11 Ves., 363 ; Sutton 
 
 v. Jones, 15 Ves., 584. 
 
 12 Sugden v. Crossland, 3 Sm. and G., 192. 
 
256 TRUSTEE PURCHASING TRUST-ESTATE. 
 
 LECTURE If the person using the trust-fund is not a trustee, he 
 
 Ix - will be liable to the cestui que trust only for the principal 
 
 Extent of anc l interest, but not for the profits ; as for example, where 
 
 liability, a trustee lends the trust-fund to a trader to be used in 
 
 his business, in this case there is no fiduciary relationship 
 
 between the trader and the cestui que trust, and the trader 
 
 is only liable as on an ordinary loan. 1 
 
 Failure of If property is vested in a trustee upon trust for a certain 
 heirs of person and his heirs, and such person die* without heirs and 
 trtjd! qW intestate, the trustee will then be entitled to hold the pro- 
 perty for his own purposes. The author of the trust has 
 parted with his interest, and there is no person claiming 
 through the cestui que trust who has any right of suit 
 against the trustee. Under these circumstances, the trustee 
 can retain the property, not from any positive right in 
 himself, but because there is no person entitled to oust him 
 from possession. 2 
 
 Failure of jf a ces tui que ti^ust of chattels, whether real or personal, 
 kin. dies intestate without leaving any next-of-kin, the bene- 
 
 ficial interest will not in this case remain with the trustee, 
 but, like all other bona vacantia, will vest in the Crown 
 by the prerogative. 3 
 
 Trustee for There is another class of cases in which the principle, 
 sale P annot that a trustee shall not be allowed to do any act which 
 brings his interest and his duty as a trustee in conflict, is 
 applied, namely, those cases where a trustee for the sale of 
 trust-property himself becomes the purchaser. These cases 
 again may be divided into two classes : (1) where the trus- 
 tee attempts to purchase directly from himself, (2 ) where 
 the purchase is effected by contract or agreement between 
 the trustee and his cestui que trust, 
 
 Trustee In the first class of cases, the rule is absolute that a 
 
 from^hiin trustee shall not buy from himself. The principle is, that 
 
 self. as the trustee is bound by his duty to acquire all the 
 
 knowledge possible to enable him to sell to the utmost 
 
 advantage for the cestui que trust, the question what 
 
 knowledge he has obtained, and whether he has fairly 
 
 1 Stroud v. Gwyer, 28 Beav.. 130 ; Townend v. Townend, 1 Giff., 210 ; 
 Simpson v. Chapman, 4 DeG. M. and G., 154 ; Macdonald v. Richardson, 
 1 Giff., 81. 
 
 2 Burgess . Wheate, 1 Eden, 177 ; Taylor v. Haygarth, 14 Sim., 8 : 
 see Lewin, 7th Edn., 259. 
 
 1 See Lewin. 7th Edn.. 262. 
 
TRUSTEE PURCHASING TRUST-ESTATE. 257 
 
 given the benefit of that knowledge to the cestui que trust, LECTURE 
 which he acquires at the expense of the cestui que trust, 
 no Court can discuss with competent sufficiency or safety 
 to the parties ; l the same person cannot be both buyer 
 and seller ; " he who undertakes to act for another in any 
 matter, shall not in the same matter act for himself." 2 
 
 The reason why a trustee is not permitted to purchase 
 is, because the Court will not permit a man to have an 
 interest adverse and inconsistent with the duty which he 
 owes to another ; and as a trustee for sale is bound to get 
 the best price for property to be sold that he can, the Court 
 will not permit him to have an interest of his own adverse 
 to the discharge of his duty to his principal. If he is 
 the purchaser, he is interested in getting the property at 
 the lowest price he can; but if he is acting bond fide for 
 the owner of the property, his duty is to sell at the best 
 price he can obtain ; and the Court will not permit a 
 party to place himself in a situation in which his interest 
 conflicts with his duty ; for taking mankind at large, it 
 is not very safe to allow a man to put his private interest 
 in conflict with the duty which he owes to another. 3 
 
 It may be that the price given is fair, and that the trustee That price 
 has not gained any advantage by the transaction, the pur- f:lir imma- 
 chase is nevertheless invalid. 4 "The rule I take to be teia " 
 this," said Lord Eldon, 5 " not that a trustee cannot buy 
 from his cestui que trust, but that he shall not buy from 
 himself." " Without any consideration of fraud, or looking 
 beyond the relation of the parties, that contract is void," 
 said Lord Erskine, 6 speaking of the case of a trustee 
 selling to himself. 7 If the trustee has made a profit on 
 the transaction, as by a resale, he will have to account for 
 such profit. 8 
 
 The nature of the property is immaterial ; the rule So nature 
 applies whether the property is moveable or immoveable. 9 of property 
 
 1 Ex parte James. 8 Yes., 348. 
 
 2 Whichcote r. Lawrence, 3 Ves., 750. per Lord Longhbcrongh, L. C. ; 
 Ex parte Lacey. 6 Ves., 626 ; Re Bloye's Trust, 1 Mac. and G., 495. 
 
 3 In re Bloye's Trust. 1 Mac. and G., 495, per Lord Cranworth ; and see 
 Ex parte Bennett. 10 Ves.. 394. 
 
 4 Ex parte James, 8 Ves., 348; Ex parte Bennett, 10 Ves., 393 ; Ex 
 parte Lacey, 6 Ves.. 627 
 
 5 Ex parte Lacey. 6 Ves., 627. 6 Morse v. Royal, 12 Ves., 372. 
 
 7 And see Randall v. Errington, 10 Ves., 425. 
 
 8 Fox v. Mackreth. 2 Bro. C. C.. 400 ; Whichcote v. Lawrence, 3 Ves.. 740. 
 
 9 Hall i: Hallett. 1 Cox. 134 ; Crowe v. Ballard. 2 Cox. 253 ; Killick r. 
 Flexuey, 4 Bro. C. C., 100 ; Watsou v. Toone, 6 Mad., 153. 
 
 33 
 
258 TRUSTEE PURCHASING TRUST-ESTATE. 
 
 LECTURE So it is immaterial that the purchase is made by the 
 IX - trustee at a public sale by auction. 1 " If persons who are 
 Or mode of trustees to sell an estate are there professedly as bidders 
 purchase, to buy, that is a discouragement to others to bid. The 
 persons present seeing the seller there to bid for the estate 
 to or above its value, do not like to enter into that com- 
 petition." a And it makes no difference that the purchase is 
 in the name of another person as the trustee's agent. 3 
 And the rule applies to the case of one of several trustees 
 buying for himself. 4 
 
 Purchase So a trustee may not purchase for another person. " One 
 fur another ^ ^ e reasons for setting aside such transactions," said 
 Sir Barnes Peacock, 5 " is, that the purchaser is presumed 
 from his position to have better means than the vendor 
 has of ascertaining the value of the property purchased. 
 Well, then, if a person knowing that another holds a 
 fiduciary position and has a better knowledge of the value 
 than the vendor, employs that person to purchase for him, 
 and the trustee purchases secretly in his own name for 
 the benefit of that other, it appears to their Lordships that 
 the sale is equally invalid against the person for whose 
 benefit it is purchased by the trustee as it would be 
 against the trustee himself." 
 
 A mortgagee, who sells under a power of sale, cannot, 
 except with the leave of the Court, be allowed to purchase 
 the mortgaged estate. 6 
 
 Trustee A person who has been named as a trustee for sale in 
 
 who lias an instrument, but who has never accepted or acted in 
 
 acted. the trust, is not a trustee ; and consequently he will not 
 
 be disabled from purchasing the trust-property. 7 So a 
 
 merely nominal trustee may purchase. In this case there 
 
 is no conflict between duty and interest on the part of the 
 
 1 Campbell v. Walker, 5 Yes., 678; 13 Ves., 601; Lister r. Lister, 
 fi Ves.. 631 ; Sanderson v. Walker, 13 Ves., 601 ; Downea t. Grazebrook, 
 3 Her., 200 
 
 2 Ex parte Lacey, 6 Ves., 629. per Lord Eldon. 
 
 1 Whelpdale v. Cookson. 1 Ves.. 9 ; Campbell v. Walker. 5 Ves.. 678 ; 
 13 Ves.. 601 ; Downes r. Grazebrook. 3 Mer., 200 ; Randall P. Errington, 
 10 Ves.. 423. 
 
 4 Whichcote v. Lawrence. 3 Ves.. 740 ; Morse r. Royal, 12 Ves.. 374. 
 
 s Dhonender Chunder Mookerjee r. Mutty Lall Mookerjee, 14 B. L. R., 
 283 ; (S. C.) 23 W. R., 6. 
 
 Downes v. Grazebrook. 3 Mer., 200 ; S. M. Kamini Debi v. Ram- 
 lochan Sirkar, 5 B. L. R.. 458. 
 
 7 Chambers v. Waters, 3 Sim., 42 ; Stacey v. Elph, 1 M. and K., 195. 
 
WHEN SALE MAY BE SET ASIDE. 259 
 
 trustee, and there is no object in preventing him from be- LECTURE 
 coming a purchaser. 1 
 
 However fair, open, and honest the transaction may be, when 
 although the trustee may have given as much for the pro- ceglvi v* 
 perty Jis it is reasonably worth, and as much as any one s 'et asid y 
 else would give ; and although no fraud, mismanagement, ! 
 or negligence appears to the Court, yet the sale is always 
 liable to be set aside at the suit of the cestui que trust? 
 It is, as we have seen, immaterial that the trustee has not 
 made any advantage. "If the connection (between the 
 trustee and cestui que trust) does not satisfactorily appear 
 to have been dissolved," said Lord Eldon, 3 " it is in the 
 choice of the cestuis que trustent, whether they will take 
 back the property or not. It is founded upon this, that 
 though you may see in a particular case that he has not 
 made advantage, it is utterly impossible to examine upon 
 satisfactory evidence in the power of the Court by which 
 I mean in the power of the parties in ninety-nine cases 
 out of an hundred, whether he has made advantage or 
 not. Suppose a trustee buys any estate, and by the know- 
 ledge acquired in that character discovers a valuable coal- 
 mine under it ; and locking that up in his own breast, 
 enters into a contract with the cestui que trust, if he 
 chooses, how can the Court try that against that denial ? 
 The probability is, that a trustee who has once conceived 
 such a purpose will never disclose it ; and the cestui que 
 trust will be effectually defrauded." 4 
 
 " If," said Lord Eldon in another case, 5 " a trustee can 
 buy in an honest case, he may in a case having that ap- 
 pearance, but which, from the infirmity of human testimony, 
 may be grossly otherwise." 
 
 The duties imposed upon trustees prevent their buying Trustee 
 for themselves, and it follows from the general rule that ^ a / f " l 
 they cannot be permitted to buy for a third person ; for another, 
 the Court can, with as little effect, examine whether that 
 was done by making an undue use of the information 
 received in the course of their duty in the one case as in 
 the other. 6 
 
 1 See Lewin on Trusts. 7th Edn., 439. 
 
 2 Campbell r. Walker. 5 Ves., 678 ; Gibson v. Jeyes, 6 Ves., 266 ; Ex 
 parte Lacey, ib., 625 ; Randall v. Errington, 10 Ves., 423 ; Downes r. 
 Grazebrook, 3 Mer.. 209. 3 Ex parte Lacey, 6 Ves. , 627. 
 
 4 And see Ex parte James, 8 Ves., 337. 
 
 4 Ex parte Bennett, 10 Ves., 385. 
 
 Coles v. Trecothick, 9 Ves., 248 ; Ex parte Bennett, 10 Ves., 400. 
 
260 LIMITATION. 
 
 LECTUBE The agent of a trustee for the sale of an estate employed 
 
 for the sale of the estate cannot purchase ; 1 the reasons 
 
 Agent of which disqualify his principal from purchasing apply 
 
 trustee equally to him. Practically, he is the person who conducts 
 
 mav not , v* i , i . , , i t, < ,-, 
 
 purchase, the sale, and it is on his exertions that the result ot the 
 sale depends ; and, therefore, to say that the principal is 
 incapacitated, but that the agent is not, would be an absurd 
 distinction, the reason remaining the same and being as 
 applicable to the one as to the other. 2 
 
 An agent not for sale, but for management only, and a 
 
 receiver appointed by the Court, stand in a confidential 
 
 relation, and cannot purchase without putting themselves 
 
 at arm's length and a full disclosure of their knowledge. 3 
 
 Trustee The principle that we are now considering applies to 
 
 lease. g ^ ne case ^ a trustee taking a lease of the trust-property 
 
 to himself. His duty and his interest may conflict, and 
 
 therefore, if the lease is advantageous to him, for that is 
 
 equivalent to a purchase, he must account to the cestui que 
 
 trust for the profits, and must give up the lease ; if it is 
 
 disadvantageous to him, he will be held to his bargain. 4 
 
 Time Although the Limitation Act (Act XV of 1877, s. 10) pro- 
 
 whic'h sale v ides, that no suit against a person in whom property has 
 
 must be become vested in trust for any specific purpose, or against 
 
 set aside. n j s j e g a } representatives or assigns (not being assigns for 
 
 valuable consideration) for the purpose of following in his 
 
 or their hands such property, shall be barred by any length 
 
 of time ; yet a cestui que trust who seeks to set aside a 
 
 purchase must do so within a reasonable time, 5 otherwise 
 
 if he allows the trustee to remain in possession for a 
 
 length of time as absolute owner, his right to relief may 
 
 be affected by his acquiescence. 6 What period of time would 
 
 operate as an absolute bar to relief cannot be laid down 
 
 exactly. Relief has been refused after an acquiescence of 
 
 seventeen years. 7 
 
 1 Whitcomb r. Minchin. 5 Mad., 91. 
 
 2 lie Bloye's Trust, 1 Mac. & G., 495. 
 
 3 Lewin on Trusts. 7th Edn.. 440. citing King v. Anderson, 8 I. R., 
 Eq., 147, 625 ; Alven v. Bond, 1 Flan. & Kelly, 196 ; White v. Tommy, 
 1 Flan. & Kelly. 224. 
 
 4 Exparte Hughes, 6 Ves.. 617 ; Parker v. Brooke, 9 Ves., 583; The 
 Attorney-General r. The Earl of Clarendon, 17 Ves.. 600. 
 
 s Campbell r. Walker. 5 Ves.. 680 ; Chalmer v Bradley. 1 J. & W., 59 ; 
 Webb v. Rorke. 2 Sch. & Lef.. 672. 
 
 8 Exparte James, 8 Ves., 351 ; Randall v. Errington, 10 Ves., 427; 
 Webb r. Rorke, 2 Sch. & Lef.. 672 ; Parkes v. White, 11 Ves., 226. 
 
 7 Baker v. Baker, 18 Beav., 398. 
 
ACQUIESCENCE AND CONFIRMATION. 261 
 
 And in Oliver v. Court, 1 Richards, C. B., seemed to think LECTURE 
 that twelve years would be sufficient. Much of course 
 would depend upon the nature of the transaction. 2 
 
 Sales have been set aside after acquiescence for ten 3 
 and eleven years. 4 But if there has been disguise and 
 concealment on the part of the trustee, the purchase may 
 be set aside even after an interval of twenty years ; 5 and 
 there can, of course, be no acquiescence on the part of per- 
 sons who are not competent to contract. Nor can there 
 be acquiescence if the cestui que trust was ignorant of the 
 fact that the trustee was the purchaser. 6 
 
 The rule as to acquiescence will not apply with the 
 same force if the cestui que trust has been hindered from 
 taking proceedings by poverty, 7 or in the case of credi- 
 tors. 8 But they may be barred by gross laches, such as 
 delay for thirty-three years. 9 
 
 If the cestui que trust is a person competent to contract, Confirma- 
 he may confirm the sale, and will be estopped from subse- tion - 
 quently disputing it, 10 unless the confirmation has been 
 obtained fraudulently, or he was ignorant of the facts. 11 
 
 The confirmation must not be contemporaneous with 
 the conveyance, 12 and it must be the solemn and deli- 
 berate act of the cestui que trust. 13 
 
 Although a trustee for sale cannot, so long as he remains p urc hase 
 a trustee, purchase from himself, yet he may, under certain tromcettwi 
 
 que trust. 
 
 1 8 Price, 167. 
 
 2 See also Morse v. Royal. 12 Ves., 374 ; Price v. Byrn, cited 5 Ves., 681 ; 
 Barwell v. Harwell. 34 Beav.. 371 ; Champion v. Rigby, 1 R. & M., 539 ; 
 Roberts v. Tunstall. 4 Hare. 257. 
 
 3 Hall v. Noyes. cited in 3 Ves., 749. 
 
 4 Murphy v. O'Shea. 2 J. & Lat., 422. 
 
 5 Watson v. Toone. 6 Lladd.. 153. 
 
 6 Randall v. Errington. 10 Ves.. 423 ; Chalmer t?. Bradley, 1 J. & W., 61. 
 
 7 Roberts r. Tunstall, 4 Hare, 267. 
 
 8 Whichcote v. Lawrence, 3 Ves.. 740 ; Ex parte Smith, 1 D. & C., 
 267 ; Anon., cited in 6 Ves., 632 ; Kidney v. Cnssmaker, 12 Ves., 158 ; York 
 Buildings Co. v. Mackenzie. 8 Bro. P. C., 42. 
 
 9 Hercy v. Dinwoody. 2 Ves. Jr., 87 ; Scott r. Nesbitt. 14 Ves.. 446. 
 
 10 Morse r. Royal. 12 Ves.. 355 ; Clarke v. Swaile, 2 Eden, 134; Ches- 
 terfield c. Janssen. 2 Ves.. 125 ; Scott v. Davis. 4 M. & C., 92. 
 
 11 Murray v. Palmer, 2 Sch. & Lef.. 486 ; Morse r. Royal, 12 Ves., 373 ; 
 Adams v. Clifton, 1 Russ., 297 ; Cockrell v. Cholmeley. 1 R. & M., 425 ; 
 Chalmer r. Bradley, 1 Jac. & W., 51 ; Dunbar v. Tredennick, 2 B. & B., 
 317. 
 
 '- Wood v. Downes, 18 Ves., 128 ; Morse r. Royal, 12 Ves., 373 ; Scott 
 r. Davis, 4 M. & C., 91 ; Roberts v. Tunstall, 4 Hare, 267. 
 
 13 Carpenter r. Heriot, 1 Eden, 338 ; Montmorency v. Devereux, 7 C. 
 & F., 188. 
 
262 PURCHASE FROM CESTUI QUE TRUST. 
 
 LECTURE circumstances, purchase from his cestui que trust?- " If," 
 IX - said Lord Eldon, 2 " a trustee will so deal with his cestui que 
 trust that the amount of the transaction shakes off the 
 obligation that attaches upon him as trustee, then he may 
 buy." In Coles v. Trecothick 3 the same learned Judge said : 
 " Upon the question as to a purchase by a trustee from the 
 cestui que trust, I agree the cestui que trust may deal 
 with his trustee so, that the trustee may become the pur- 
 chaser of the estate. But, though permitted, it is a trans- 
 action of great delicacy, and which the Court will watch 
 with the utmost diligence; so much, that it is very hazardous 
 for a trustee to engage in such a transaction .... A 
 trustee may buy from the cestui que trust, provided there 
 is a distinct and clear contract, ascertained to be such after 
 a jealous and scrupulous examination of all the circum- 
 stances, proving that the cestui que trust intended the 
 trustee should buy, and there is no fraud, no concealment, 
 no advantage taken by the trustee of information acquired 
 by him in the character of trustee. I admit it is a difficult 
 case to make out, wherever it is contended, that the excep- 
 tion prevails." 4 
 
 Fiduciary ^ ^he relation of trustee and cestui que trust has been 
 relation in some way dissolved, or if not, the parties are so much 
 dissolved. ^ arm 's length that they agree to take the character of 
 purchaser and vendor, if the cestui que trust is well ad- 
 vised of what his rights are, 6 and it is distinctly and fully 
 understood by him that he is selling to the trustee, and the 
 trustee takes no advantage of his situation to produce a 
 beneficial bargain to himself, 7 the trustee may purchase 
 from his cestui que trust, for then he purchases not indeed 
 from himself as trustee, but under a specific contract with his 
 cestui que trust? The consequence is, that until the trustee 
 has by contract done what all the cases admit he may do, 
 that is to say, effectually shaken off the character of trustee, 
 and put himself in circumstances in which he shall be no 
 
 1 Ayliffe v. Murray, 2 Atk., 59 ; Wbichcote v. Lawrence, 3 Ves., 750 ; 
 Gibson v. Jeyes, 6 Ves.. 277. 
 
 2 Exparte Lacey, 6 Ves., 626. 
 
 3 9 Ves., 234. 
 
 4 And see Randall r. Errington, 10 Ves., 426 ; Downes v. Grazebrook, 
 3 Mer.. 208 ; Morse v. Royal, 12 Ves., 373. 
 
 5 Gibson v. Jeyes. 6 Ves , 277. 
 
 6 Spring v. Pride, 4 DeG. J. and S., 405. 
 ' Randall v. Errington, 10 Ves., 427. 
 
 8 Downes v. Grazebrook. 3 Mer., 208. 
 
PURCHASE FROM CESTUI QUE TRUST. 263 
 
 longer the person entrusted to sell, he shall not buy for LECTURE 
 himself. 1 
 
 The burden of proof to show the bona fides of the trans- Burden of 
 action throughout, that the utmost price that could have P roof - 
 been produced was obtained, and that the cestui que 
 trust has not in any way been defrauded, lies upon the 
 trustee. 2 
 
 A trustee cannot be allowed to act up to the time of sale, 
 to get all the information that may be useful to him, and 
 then to discharge himself from the character of trustee 
 and buy for himself. He must at the time of purchase 
 have fully shaken off the character of trustee by the 
 consent of the cestui que trust freely given, after full 
 information and after the right to purchase has been 
 bargained for. 3 
 
 Where the cestui que trust has taken upon himself the 
 conduct of all the preliminary proceedings requisite for the 
 sale, such as the surveys, the mode and conditions of sale, 
 the plans, the choice of the auctioneer; and has thus 
 acquired a perfect knowledge of the value of the property, 
 and the trustee has not been in a situation to acquire any 
 exclusive information respecting the property, and a con- 
 tract has then been made for sale by the cestui que ti^ust 
 to the trustee, the Court will deal with the contract as if 
 made between two indifferent persons putting each other 
 at arm's length, and will give effect to the sale, though 
 made for an inadequate price. 4 
 
 So the purchase has been supported where the cestui que 
 tr/xf proposed and pressed it upon the trustee. 5 
 
 And where the trustee had exerted himself considerably 
 to sell the trust-estate, but had not been able to meet with 
 a purchaser, and subsequently agreed to purchase the 
 premises for himself, with the consent and approval of the 
 cestui que trust, Lord Northington refused to set the trans- 
 action aside, though he said that he did not like the circum- 
 stance of a trustee dealing with his cestui que trust. 6 
 
 The solicitor of the cestui que trust cannot, in the absence 
 of express authority from his client, enter into a contract 
 
 1 Ex parte Bennett. 10 Ves., 394. 
 
 2 Denton r. Dormer. 23 Beav., 290 ; Luff r. Lord. 34 Beav.. 226. 
 
 Ex parte James. 8 Ves.. 353 ; Spring v. Pride, 4 DeG. J. and S., 395. 
 4 Coles r. Trecothick. 9 Ves.. 248. 
 
 * Morse v. Royal. 12 Ves.. 355. 
 
 4 Clarke v. Swaile. 2 Eden, 134. 
 
264 
 
 PURCHASE BY CREDITORS. 
 
 Purchase 
 by credi- 
 tors. 
 
 LECTURE with the trustee for the purchase by the trustee of the 
 IX - trust-properiy. 1 
 
 Where the cestuis que trustent are creditors of an insol- 
 vent estate, the trustee can only purchase with the consent 
 of all the creditors. In Whelpdale v. Cookson, 2 Lord Hard- 
 wicke confirmed the sale in case the majority of the credi- 
 tors interested should not dissent. Lord Eldon, however, 
 in Ex parte Lacey, 3 differed from Lord Hardwicke, saying 
 " I doubt the authority of that case ; for if the trustee is a 
 trustee for all the creditors, he is a trustee for them all in 
 the article of selling to others ; and if the jealousy of the 
 Court arises from the difficulty of a cestui que trust duly 
 informing himself what is most or least for his advantage, 
 I have considerable doubt whether the majority in that 
 article can bind the minority." 
 
 Leave has been given to assignees to purchase upon the 
 condition that the consent of the creditors at a meeting 
 called for the purpose shall have been first obtained. 4 
 
 The Court will not, where the cestuis que trustent are 
 sui juris, give the trustee leave to bid ac a sale by auction. 
 In the case of infants, as we shall see presently, the rule is 
 different. It is for the cestui que trust, the person interested, 
 to decide whether he will sell to the trustee, and not a mat- 
 ter for the Court. 5 The reason why a trustee is not allow- 
 ed to bid is, because he must have acquired much informa- 
 tion, and the Court could feel no security that he would 
 do his duty and communicate this information so as to 
 raise the price if he had a prospect of becoming a pur- 
 chaser. But if the Court is satisfied that no purchaser, at 
 an adequate price, can be found, then the trustee may be 
 allowed to make proposals and to become the purchaser. 6 
 
 The cestuis que trustent must be in such a position that 
 they can act for themselves, and can effectually contract 
 with the trustee. A purchase, therefore, by a trustee from 
 infant cestuis que trustent will be void, as the cestuis que 
 trustent are persons incapable of entering into a binding 
 contract. 7 It may be that the trustee is willing to give 
 
 Assignee. 
 
 Leave to 
 bid. 
 
 Purchase 
 from in- 
 fauts. 
 
 Downes v. Grazebrook. 3 Mer., 208. 
 
 Cited in Campbell v. Walker, 5 Ves., 682. 
 
 6 Ves., 628. 
 
 Ex parte Bage, 4 Madd., 459 ; Anon., 2 Russ., 350. 
 
 Ex parte James, 8 Ves.. 352. 
 
 Tennant v. Trenchard. L. R., 4 Ch., 547. 
 
 Campbell v. Walker, 5 Ves., 682 ; Sanderson v. Walker, 13 Ves., 601. 
 
LENDING TO TRUSTEES. 265 
 
 more than any one else for the property ; and in such a LECTURE 
 case the only way by which he can safely purchase is to 
 institute a suit, and apply to the Court by motion to let 
 him he the purchaser, saying that so much is bid and that 
 he will give more. The Court will examine into tke cir- 
 cumstances, ask who had the conduct of the transaction, 
 whether there is any reason to suppose the premises could 
 be sold better ; and upon the result of that inquiry will 
 let another person prepare the particulars of sale, and let 
 the trustee bid. 1 
 
 An executor or administrator cannot be permitted, either Legal re- 
 immediately or by means of a trustee, to be the purchaser presenta- 
 of any parts of the assets of his testator or intestate, but 
 will be considered as a trustee for the persons interested, and 
 must account to them for the utmost extent of the profit 
 made by him. 2 And the general rule that a trustee shall 
 not purchase trust-property applies to an executor de son 
 tort, 3 or an agent, 4 and to any persons who may stand in 
 a fiduciary position. 
 
 But the rule does not extend to a purchase by a mort- Mortgagee, 
 gagee from his mortgagor, for the circumstance that two 
 parties stand to each other in the relation of trustee and 
 cestui que trust does not affect any dealing between them 
 unconnected with the subject of the trust. 5 Nor is there 
 any principle in equity that a surviving partner cannot 
 purchase the share of a deceased partner from his represent- 
 atives. 6 And a creditor taking out execution is not pre- 
 cluded from becoming the purchaser of the property seized 
 under it. 7 
 
 If the instrument creating the trust authorizes the trus- Lending to 
 tees to invest on personal security, it is a breach of trust trustees ' 
 if the trustees lend to one of themselves. The author of 
 the trust relies upon the united vigilance of all the trustees 
 with respect to the solvency of the borrower, and the 
 
 1 Campbell r. Walker, 5 Ves., 681 ; Farmer v. Dean, 32 Beav., 327. 
 
 2 Hall v. Hallett. 1 Cox. 134 ; Killick r. Flexney, 1 Bro. C. C., 161 ; 
 Watson v. Toone. 6 Mad., 153. 
 
 8 Mulvany r. Dillon, 1 B. and B., 408. 
 
 4 King i\ Anderson, I. R., 8 Eq., 625 ; Murphy v. O'Shea, 2 J. and Lat., 
 422. 
 
 3 Knight r. Majoribanks, 11 Beav., 322 ; 2 Mac. and G., 10. 
 * Chambers r. Howell. 11 Beav., 6. 
 
 7 Stratford v. Twynam, Jac., 418. 
 
 34 
 
266 LENDING TO TENANT-FOR-LIFE. 
 
 LECTURE object is defeated by a loan to one of the trustees. 1 " And 
 trustees having a power, with the consent of the tenant- 
 for-life, to lend on personal security, cannot lend on personal 
 security to the tenant-for-life himself. And when the Court 
 has assumed the administration of the estate by the insti- 
 tution of a suit, it will not direct an investment on personal 
 security, though there be a power to lay out on either 
 personal or Government security, but will order all future 
 investments to be made on Government security." 2 
 
 v. Walker, 5 Russ. . 7 ; Stickney v. Sewell, 1 My. and Cr., 8 ; 
 
 Westover v. Chapman. 1 Coll., 177. 
 2 Lewin, 7th Edn., 291. 
 
LECTURE X. 
 
 OF THE RIGHTS AND LIABILITIES OF THE CESTUI QUE 
 TRUST. 
 
 Right of cestui gue trust to rents and profits Tidd v. Lister Right to call 
 for conveyance Costs Indemnity Right of cestui que trust to have 
 trust carried out Right of cestui que ti~ust to hold property absolutely 
 Separate use Right of cestui que trust to inspection Custody of ti'tle- 
 deeds Right of cestui que trust to alienate his interest Cautions in 
 assignments of equitable interest Separate use Method of conveyance 
 Assignee takes subject to all equities Set-off Mutual demands must 
 be in respect of same rights Notice to trustees Mortgage Descrip- 
 tion of property What is sufficient notice To whom notice to be 
 given Agents Notice to one of several trustees Notice before trust- 
 fund received Bankers Trustee purchaser Nonpayment Mortga- 
 gee Immoveable property Stop-order Kight to execution of trust 
 Suit for execution of trust Intention of author of trust carried out 
 Right to proper trustees Suit for appointment of new trustees Costs 
 Grounds for removal of trustee Rules for selecting new trustees In re 
 Tempest Right to compel trustee to do act of duty Injunction 
 Wrongful purchase by trustee Interest Allowance for outlay Re- 
 conveyance Interest Costs Following trust-estate into hands of third 
 persons Volunteers Purchasers for value Purchase from guardian 
 Notice of trust Purchaser for valuable consideration without notice 
 Purchaser without notice from purchaser with notice Purchaser with 
 notice from purchaser without Fraud Doubtful equity Following 
 converted trust-property Proof of purchase with trust-money Money, 
 notes, or negotiable instruments Trust-fund mixed with trustee's money 
 Pennell v. Ueffell Re HalleU's Estate Lien Limitation Accrual of 
 cause of action Fraud Purchase from manager of joint Hindu family 
 Position of shebait Duty of purchaser Terms on which sale set aside 
 Duty of manager What is sufficient necessity Sale to pay debts 
 Hunooman Persaud Pauday's case Purchaser under execution Pur- 
 chase from heir of Mahomedan debtor Acquisition by trustee of trust- 
 property wrongfully converted Liability of executor or administrator to 
 pay interest Liability of trustee who leaves property uninvested When 
 trustee liable to pay "interest Trustee employing trust-funds in trade 
 Docker r. Somes Apportioning profits Compound interest Trust- 
 funds mixed with trustee's money Partner trustee employing trust-funds 
 in business Election where trust-property to be sold or invested Elec- 
 tion by one cestui que trust to retain property unconverted Notification 
 of election Liability of ceslui gue ti~ust joining in breach of trust 
 Against whom interest of cestui que trust applied Rights and liabilities 
 of trausferree from cestui que trust. 
 
268 RIGHT OF CESTUI QUE TRUST TO RENTS AND PROFITS. 
 
 LECTURE IN the case of a passive trust, the cestui que trust has 
 X- a right to take the rents and profits or income of the trust- 
 Right of property ; 1 and where there is only one cestui que trust, he 
 cestui que mav compel the trustee to put him in possession of the 
 
 trust to , 2 rril. / i 
 
 rents and estate. ine cause oi action in such a case accrues upon 
 profits. refusal by the trustee to give up the property upon de- 
 mand by the cestui que trust, and not from the date when 
 the trustee enters into possession. 3 If trustees eject a 
 cestui que trust, they will have to account, not only for 
 rents which they receive, but for the whole of the rents 
 which the tenants were bound to pay. 4 But if there are 
 several cestuis que trustent, the Court will not, as a rule, 
 take the property out of the hands of the trustees, or if it 
 does do so, it will take care that the transfer shall be accom- 
 panied with such conditions and restrictions as the nature 
 of the case may require in order to protect the interests 
 of the cestuis que trustent who do not get possession. In 
 Tuid. Lis- Tidd v. Lister? where successive estates were limited by 
 ter * will, it was argued that it was a matter of course in a Court 
 
 of Equity to divest trustees of the management of the 
 trust-property and to deliver possession of it to the cestui 
 que trust. Sir John Leach, V. C., however, refused to re- 
 move the trustees from the management, say ing, " My 
 first impressions were strongly against the existence of any 
 such rule. It is perfect!}' plain from the continuing nature 
 of this trust, that the testator intended that the actual 
 possession of the trust-property should remain with the 
 trustees ; and it did appear to me a singular proposition 
 that if a testator, who gives in the first instance a bene- 
 ficial interest for life only, thinks fit to place the direction 
 of the property in other hands, which is the obvious 
 means of securing the provident management of that pro- 
 perty for the advantage of those who are to take in suc- 
 cession, that it should be a principle in a Court of Equity 
 to disappoint that intention, and to deliver over the estate 
 to the cestui que trust for life, unprotected against that 
 bias which he must naturally have to prefer his own imme- 
 diate interest to the fair rights of those who are to take 
 in remainder .... There may be cases in which it 
 
 1 Smith v. "Wheeler, 1 Mod.. 17. 
 
 2 Lewin, 7th Edn., 576 ; and see Brajnath Baisakh . Matilal Baisakh, 
 3 B. L. R.. 0. J.. D2. 
 
 * Rakhaldas Madak r. Madhusndun Madak. 3 B. L. R., A. C., 409. 
 
 * Kaye r. Powell, 1 Ves. Jr., 4U8. * 5 Madd., 429. 
 
RIGHT TO CALL FOR CONVEYANCE. 269 
 
 may be plain from the expressions in the will, that the LECTURE 
 testator did not intend that the property should remain 
 under the personal management of the trustees. There 
 may be cases in which it may be plain from the nature of 
 the property tliat the testator could not mean to exclude 
 the cestui que trust for life from the personal possession 
 of the property, as in the case of a family residence. 
 There may be very special cases in which this Court 
 would deliver the possession of the property to the cestui 
 que trust for life, although the testator's intention appeared 
 to be that it should remain with the trustees, as where 
 the personal occupation of the trust-property was bene- 
 ficial to the cestui que trust. There the Court, taking means 
 to secure the due protection of the property for the bene- 
 fit of those in remainder, would in substance be performing 
 the trust according to the intention of the testator." l 
 
 And where a cestui que trust would be entitled to re- Right to 
 quire the trustee to put him in possession of the trust- cal1 for 
 
 L ii j.i it. convey- 
 
 property, he may call upon the trustee to convey the pro- ance. 
 perty to such person as he may require. 2 Should the 
 trustee refuse to convey, the cestui que trust may institute 
 a suit to compel him to do so, and if it appears that there 
 was no good ground for the refusal, the trustee will have 
 to pay the costs of the suit, 3 as where a trustee has insist- Costs. 
 ed upon enquiring into matters connected with a distinct 
 trust, 4 or refuses to convey through obstinacy and caprice. 5 
 But a trustee will not be made to pay costs where he acts 
 in good faith and under competent advice, though the fact 
 that the trustee consulted counsel will not necessarily en- 
 title him to his costs. 6 Nor will he be made to pay costs 
 where information as to the existence of the trusts has 
 been withheld from him, 7 or where he has refused to 
 
 1 See also Blake v. Bunbury, 1 Ves. Jr., 194 ; Jenkins v. Milford, 1 J. 
 & W., 629 ; Baylies r. Baylies, 1 Coll.. 537 ; Denbon v. Denton, 7 Beav., 
 388 ; Pugh v. Vaughan, 12 Beav., 517. 
 
 2 Lewin, 7th Edn., 585, citing Payne r. Barker, Sir G. Bridgman'a 
 Rep., 24. 
 
 3 Jones v. Lewis, 1 Cox, 199 ; Thorby v. Yeats, 1 Y. & C. C. C., 438 ; 
 Willis v. Hiscox. 4 M. & Cr., 202 ; Campbell . Home. 1 Y. & C. C. C., 664 ; 
 Hampshire r. Bradley. 2 Coll., 34 ; Penfold v. Bouch, 4 Hare, 272 ; 
 Firmin r. Pulham. 2 DeG. & Sm., 99. 
 
 4 Palairet v. Carew, 32 Beav.. 564. 
 
 5 Taylor v. Glanville, 3 Madd., 178. 
 
 6 Devey v. Thornton, 9 Hare, 232 ; Angler *. Stannard, 3 My. & K., 
 566. 
 
 T Holford r. Phipps, 3 Beav.. 434. 
 
270 INDEMNITY. 
 
 LECTURE convey in pursuance of an opinion expressed by counsel 
 x - that the concurrence of certain parties was necessary. 1 
 " I admit," said Lord Gifford,' 2 " that it is only in a strong 
 case that costs will be given against trustees : yet where 
 they refuse without a reasonable motive, for their refusal 
 to act without suit, they will be visited with costs." 
 "Trustees," said Sir J. Leach, V.C., 3 "are entitled to the 
 protection and direction of the Court in the exercise of 
 their trusts, and can never be called upon to pay costs, 
 unless they refuse to act without suit merely from obsti- 
 nacy and caprice. In the present case, I am of opinion 
 that the suit has been rendered necessary by the caprice 
 and pertinacity of the trustees ; and considering the im- 
 mense expense to which beneficiaries may be exposed, where 
 a trustee who might have satisfied himself out of Court 
 concerning the propriety of what he was called upon to do, 
 as well as by coming into Court, refuses to act unless he is 
 compelled by a decree, the defendant must pay the costs of 
 the suit." 
 
 indemnity. If there is any real difficulty, the trustees are entitled 
 to require an indemnity. 4 
 
 A trustee is entitled to protect himself from liability. 
 For instance, he may require that all necessary persons are 
 made parties, 5 and he cannot be required to convey any 
 other estate than that conveyed to him. 6 Nor can he be 
 required to accept incorrect recitals. 7 Apparently, a trustee 
 cannot be called upon from time to time to divest himself 
 of different parcels of the trust-estate so as to involve 
 himself as a party to conveyances to a number of dif- 
 ferent persons. He has a right to say, " If you mean to 
 divest me of my trust, divest me of it altogether, and then 
 make your conveyances as you think proper." 8 If the 
 trustee has reasonable suspicions that the cestui que trust 
 has been induced to enter into the contract by coercion, 
 undue influence, fraud, misrepresentation or mistake, it is 
 his duty to refuse to convey ; and he will not be visited 
 with the costs of a suit to compel him to convey, even 
 
 1 Goodson v. Ellison, 3 Russ., 583 ; Poole v. Pass. 1 Beav., 600. 
 
 2 Goodson v. Ellison. 3 Russ., 589. 
 
 3 Taylor v. Glanville, 3 Madd., 178. 
 
 4 Goodson v. Ellison. 3 Russ.. 583. 
 
 5 Holford v. Phipps, 3 Beav., 434. 
 
 6 Saunders *. Neville. 2 Vern.. 428 ; Goodson t: Ellison, 3 Russ., 583. 
 
 7 Hartley v. Burton, L. R., 3 Ch., 365, 
 
 8 Goodsou i'. Ellison, 3 Russ., o$i,jier Lord Eldon. 
 
EIGHT OF CESTUI QUE TRUST TO EXECUTION OF TRUST. 271 
 
 though it appears that the suspicions were unfounded. But LECTUEB 
 he must take some steps to ascertain whether or not the 
 contract is really of an improper character ; mere suspi- 
 cion is not of itself sufficient to warrant a refusal to con- 
 vey, for enquiry may show that it is groundless. 1 
 
 If the property is liable to succession duty, the trustee 
 must see that it is paid.' 2 
 
 The cestui que trust has the right to have the intention Right of 
 of the author of the trust specifically enforced to the extent cestui i ue 
 of his particular interest. The Specific Relief Act 3 provides, have trust 
 that the specific performance of any contract may, in the carriedout. 
 discretion of the Court, be enforced, (a) when the act 
 agreed to be done is in the performance, wholly or partly, 
 of a trust, and the following illustration is appended to 
 the section : " A holds certain stock in trust for B. A 
 wrongfully disposes of the stock. The law creates an obli- 
 gation on A to restore the same quantity of stock to B, 
 and B may enforce specific performance of this obligation." 
 
 The other parties entitled may express a desire that the 
 trust should be differently administered ; but if such a 
 divergence from the donor's will would prejudice or inju- 
 riously affect the rights of any one cestui que trust, he 
 may compel the trustees to adhere strictly and literally to 
 the line of duty prescribed to them.* 
 
 If property is given to trustees to hold for the benefit of Right of 
 any persons until they attain some age over the age of cestui que 
 majority, and then to pay it over to such persons abso- ^M pro- 
 lutely, the Court will allow the cestuis que trustent, on perty abso- 
 attaining majority, to have the property handed over. lutel y- 
 The cestuis que trustent, if they have an absolute and inde- 
 feasible interest in the trust-property, are not bound to 
 wait until the time fixed by the author of the trust. If 
 some other person is to have the enjoyment of the pro- 
 perty until the time fixed, then the cestuis que trustent 
 must wait until the time arrives. Thus, if a fund is given 
 to trustees to accumulate, and hand over to a certain person 
 
 1 See Campbell r. Home. 1 Y. & C. C. C., 664 ; Firmin v. Pulham, 
 2 DeG. & Sm., 99 ; King v. King, 1 DeG. & J., 663 ; Hannah v. Hodgson, 
 30 Beav., 19. As to what amounts to coercion, undue influence, fraud, 
 misrepresentation, and mistake, see Contract Act, IX of 1872, ss. 15, 16, 
 17, 18, 20, 21, 22, and ante, p. 107. 
 
 2 Buttanshaw r. Martin, 1 Johns., 89. 
 8 I of 1877. s. 12, cl. (a). 
 
 4 Lewin, 7th Edn., 589, s. 2, citing Deeth r. Hale, 2 Moll., 317. 
 
272 
 
 RIGHT TO INSPECT DOCUMENTS OF TITLE. 
 
 LECTURE on his attaining twenty-five, he may claim the fund on 
 x - attaining majority. If, however, the trust is to pay the 
 income to A until B attains twenty-five, and then to hand 
 over the principal to B, B must wait until he attains 
 twenty-five before he can claim the fund. 1 If a sum of 
 money is bequeathed to trustees upon trust to purchase an 
 annuitj'- for a certain person who is of age, and there is no 
 gift over, or provision for cesser, he may claim the sum 
 given, instead of the annuity. 2 So a trust for the main- 
 tenance of an adult, is a trust for his benefit generally, and 
 the principal will, on his insolvency, pass to his assignee. 3 
 
 There is one exception to the rule that a cestui que trust, 
 who has an absolute interest in a trust-fund, may claim the 
 fund on attaining majority, namely, where property is set- 
 tled upon a married woman for her separate use, without 
 power of anticipation. In such a case she is not entitled 
 to claim the fund, and cannot by any device evade the 
 restraint upon anticipation. 4 The reason for this is the 
 peculiar nature of this trust. It is intended as a provision 
 for the wife, and the object would be defeated if the wife 
 could obtain possession of the principal. 
 
 Separate 
 use. 
 
 Right of 
 cestui que 
 trust to 
 inspection. 
 
 Custody of 
 title-deeds. 
 
 Cestuis que trustent have a right at all reasonable times 
 to inspect the documents relating to the trust, and at their 
 own expense to be furnished with copies of them. 5 And 
 where the relation of trustee and cestui que trust has been 
 established, all cases submitted, and opinions taken, by the 
 trustee to guide himself in the administration of his trust, 
 and not for the purpose of his own defence in any litiga- 
 tion against himself, must be produced to the cestui que 
 trust. 6 
 
 Trustees do not act negligently in leaving documents of 
 title in the hands of one of their number and allowing 
 him to receive the income. The reason is, that the deeds 
 must be held by some one person, unless they are deposited 
 with bankers or placed in a box secured by a number of 
 
 1 Josselyn v. Josselyn. 9 Sim., 63 ; Saunders r. Vautier, 4 Beav.. 115 ; 
 Cr. and Ph., 240 ; Curtis r. Lukin, 5 Beav.. 147 ; Rocke v. Rocke, 9 Beav., 
 66 ; Gosling v. Gosling, Johns.. 265 ; Pearson v. Lane, 17 Ves., 101 ; 
 Magrath v. Morehead, L. R.. 12 Eq.. 491. 
 
 2 Dawson r. Hearn, 1 R. & M., 606 ; He Browne's Will, 27 Beav., 324. 
 
 3 Younghusband v. Gisborne, 1 Coll., 400. 
 
 4 Stanley v. Stanley, L. R.. 7 Ch. Div.. 589. 
 
 5 Eeparte Holdsworth, 4 Bing., N C., 386. 
 
 6 Wynne v. Humberston. 27 Beav., 421. 
 
ALIENATION OF BENEFICIAL INTEREST. 273 
 
 different locks, of which each trustee should hold one of LECTUBE 
 the keys, and negligence cannot be imputed to trustees for 
 not taking such precautions as these. 1 
 
 A cestui que trust, if competent to contract, may alienate Right of 
 or devise his interest in the trust-fund, 2 even if his %?" 
 interest only amounts to a btiro possibility. 3 The cestui alienate hia 
 que trust may exercise this right of ownership without mterest - 
 the intervention of the trustees, who have no power of 
 interfering, 4 and where the cestui que trust conveys his 
 interest in the trust-fund to a purchaser, the purchaser may 
 institute a suit against the trustee for a conveyance of his 
 interest. 5 But a mere right to sue a trustee for the chance 
 of recovering from him interest or profits of part of the 
 trust-funds in respect of which he is alleged to have corn- 
 mi tted a breach of trust, is not assignable. 6 
 
 " The purchaser of an equitable interest in choses-in- Cautions in 
 action should, for his security, never dispense with the two mem" "of 
 following precautions : First, he should make inquiries of equitable 
 the trustee or debtor whether the equity or claim of the Ul 
 vendor has been made the subject of any prior incum- 
 brance. The purchaser, as the implied agent of the cestui 
 que trust, has a right to require all the necessary informa- 
 tion ; and if the trustee or debtor refuse to answer the 
 inquiry, or be guilty of misrepresentation, or even of mis- 
 statement from forge tfulness, the purchaser may charge 
 him personally with the amount of the consequent loss. 
 Secondly, upon the execution of the assignment, the pur- 
 chaser should himself give notice of his own equitable 
 title to the trustee or debtor, by means of which he will 
 gain precedence of all prior incumbrancers who have not 
 been equally diligent, and will prevent the postponement 
 of himself to subsequent incumbrancers more diligent than 
 himself; and of course the trustee or debtor will be per- 
 sonally responsible, if after such notice he parts with the 
 fund to any person not having a prior claim." 7 
 
 1 Cottam r. Eastern Counties Railway Co., 1 J. and H., 247. 
 
 2 Lord Cornbury r. Middleton, 1 Ch. Ca., 211 ; Burgess v. Wheate, 
 1 Eden, 195. 
 
 3 Goring r. Bickerstaff. 1 Ch. Ca., 8. See as to transfer of choses-in- 
 action, Mayne's Hindu Law, 331. 
 
 4 Philips r. Brydges, 3 Ves., 127. 
 
 5 Goodson r. Ellison, 3 Russ., 583 ; Jones v. Farrell, 1 DeG. and J., 208. 
 
 6 Hill r. Boyle. L. R., 4 Eq., 260. 
 
 7 Lewiu. 7th Edn., 002. 
 
 35 
 
274 
 
 ASSIGNEE TAKES SUBJECT TO EQUITIES. 
 
 LECTURE 
 X. 
 
 Separate 
 nse. 
 
 Method of 
 convey- 
 
 Assignee 
 takes sub- 
 ject to all 
 equities. 
 
 Set-off. 
 
 If property is settled upon a married woman for her 
 separate use without power of anticipation, she'cannot, 
 upon the same principle that prevents her from claiming 
 the trust-fund (see ante, p. 272), part with her interest in the 
 trust-fund. But a general restriction against alienation is 
 against the policy of the law, and will not operate to pre- 
 vent the cestui que trust from parting with his interest. 1 
 
 As far as regards persons other than European British 
 subjects, the cestui que trust may convey his interest by 
 word of mouth. The 9th section of the Statute of Frauds, 
 which provides that all grants and assignments of any 
 trust or confidence must be in writing, signed by the 
 party granting or assigning the same, otherwise they are 
 utterly void, is still in force, at least in the Presidency- 
 towns, so far as regards European British subjects, and 
 from them a writing is therefore necessary. This section 
 refers to assignments by the cestui que trust. 2 Before the 
 Statute, the transfer of an equitable interest might have 
 been made by parol. A writing is all that is now necessary, 
 but it is the practice to employ the same species of 
 instrument and the same form of words in the transfer 
 of equitable as of legal estates. 3 
 
 The assignee of the interest of a cestui que trust, as a 
 general rule, takes it subject to all the equities to which 
 it was liable in the hands of the assignor, 4 and he may 
 even be liable to equities subsequently attaching. Thus, 
 if an executor assigns his reversionary legacy, and is 
 subsequently guilty of a devastavit, the legacy must make 
 good the loss thereby occasioned. 5 
 
 The assignee takes subject to any right of set-off which 
 may exist. In Cavendish v. Geaves, 6 the principles were 
 thus stated by Lord Romilly, M. R. : " If a customer bor- 
 row money from his banker, and give a bond to secure it, 
 and afterwards, on the balance of his general banking 
 account, a balance is due to the customer from the same 
 
 1 Snowdon v. Dales, 6 Sim., 524 ; Green r. Spicer, 1 R. and M., 395 ; 
 Graves r. Dolphin, 1 Sim.. 66 ; Brandon v. Robinson, 18 Ves., 429 ; Roch- 
 ford v. Hackman. 9 Hare, 480 ; see ante, p. 40. 
 
 2 Jerdein v. Bright, 2 J. and H., 325. 
 8 Lewin on Trusts, 7th Edn.. 594. 
 
 4 Priddy v. Rose, 3 Mer., 86; Mangles v. Dixon, 3 H. L. C., 702 ; Re 
 Natal Investment Co.. L. R., 3 Ch., 355 ; Comp. Dickson v. Swansea 
 Railway Co., L. R., 4 Q. B., 48. 
 
 5 Morris v. Livie, 1 Y. and C. C. C. ( 380 ; Irby v. Irby. 25 Beav., 632 ; 
 Willes v. Greenhill, 29 Beav.. 376. 6 24 Beav., 163. 
 
ASSIGNEE TAKES SUBJECT TO EQUITIES. 275 
 
 bankers who are the obligees of the bond, a right to set LECTURE 
 off the balance against the money due on the bond will 
 exist both at law and in equity. 
 
 " If, the firm were altered, and the bond assigned by the 
 original obligees to the new firm, and notice of that assign- 
 ment given to the debtor, and if after this a balance were 
 due to him from the new firm (the assignees of the bond), 
 then .... the customer would be entitled to set off 
 the balance due to him against the bond-debt due from 
 him. 
 
 " If, after the bond had been given, it had been assigned 
 to strangers, and no notice of that assignment had been 
 given to the original debtor (the obligor of the bond), 
 then his rights would remain the same . . . and the 
 assignees of the chose-in-action would be bound by the 
 equities affecting their assignors. 
 
 " But if notice of that assignment had been given to 
 the original debtor, no right of set off would exist for the 
 balance subsequently due by the bankers to the obligor ; 
 because the persons entitled to the bond would, as the 
 obligor knew, be different persons from the debtor to him 
 on the general account with whom he had continued to 
 deal. 
 
 " If the assignment of the bond had been made to the 
 new firm with notice to the obligor, they would, if debtors 
 on the general account, be liable to the same rights of set- 
 off as if they had been the obligee. 
 
 " If after the alteration of the firm, and after the assign- 
 ment of the bond to the new firm, with notice to the 
 debtor or obligor of that assignment, an assignment had 
 been made of the bond to strangers, and no notice of that 
 second assignment was given to the obligor, then the 
 rights of set-off would still remain to him in equity as 
 against the first assignees of whose assignment he had 
 notice, and the second assignees would be bound by it, 
 because, as I have stated, the assignees of the bond take 
 it subject to all the equities which affect the assignors." l 
 
 Set-off will not be allowed where the mutual demands Mutual 
 are between the parties in different rights, as if A give a demands 
 legacy to B, and appoint C his executor, or executor and res pectof 
 residuary legatee, B may sue C for the legacy, and C can- same 
 not set off a debt owing by B to C not as executor, but Ilfihts ' 
 
 1 As to pleading set-off, see Act X of 1877. chap. viii. 
 
276 NOTICE. 
 
 LECTURE in O's own right. 1 But a defendant may make such admis- 
 
 x - sions in his written statement as to preclude himself from 
 
 objecting to the set-off at the hearing. However, an. 
 
 admission of assets for payment of the legacy will not 
 
 have that effect. 2 
 
 Notice to When the cestui que trust assigns his interest in the 
 ees * trust-fund, the assignee should take care to give notice 
 to the trustees of the assignment. It is not necessary 
 that notice should be given, but it is highly advisable. 3 
 First, in order to prevent a subsequent assignee from gain- 
 ing priority by giving notice ; for notice of the assign- 
 ment of a chose-in-action gives priority, and is equivalent 
 to the possession of personalty capable of actual delivery. 
 The principles upon which the Court acts were thus stated 
 by Sir T. Plumer in Dearie v. Hall:* "Wherever it is 
 intended to complete the transfer of a chose-in-action, there 
 is a mode of dealing with it, which a Court of Equity consi- 
 ders tantamount to possession, namely, notice given to the 
 legal depository of the fund. Where a contract respecting 
 property in the hands of other persons, who have a legal 
 right to the possession, is made behind the back of those 
 in whom the legal estate is thus vested, it is necessary, if 
 the security is intended to attach on the thing itself, to 
 lay hold of that thing in the manner in which its nature 
 permits it to be laid hold of, that is, by giving notice of 
 the contract to those in whom the legal interest is. By 
 such notice, the legal holders are converted into trustees 
 for the new purchaser, and are charged with responsibility 
 towards him ; and the cestui que trust is deprived of the 
 power of carrying the same security repeatedly into the 
 market, and of inducing third persons to advance money 
 upon it, under the erroneous belief that it continues to 
 belong to him absolutely, free from incumbrance, and that 
 the trustees are still trustees for him and for no one else. 
 That precaution is always taken by diligent purchasers and 
 incumbrancers : if it is not taken there is neglect, and it is 
 fit that it should be understood, that the solicitor who con- 
 ducts the business for the party advancing the money is 
 responsible for that neglect. The consequence of such 
 neglect is, that the trustee of the fund remains igno- 
 rant of any alteration having been made in the equitable 
 
 1 Lewin. 7th Edn., 59!) ; and see Act X of 1877. s. Ill, illus. (). 
 
 2 Lewin. 7th Edn.. 599 ; and see ante, p. 56. 
 
 3 Lewin. 7th Edn., 600. ' 3 Russ., 1. 
 
NOTICE. 277 
 
 rights affecting it: he considers himself to be a trustee LECTUUB 
 for the same individual as before, and no other person is 
 known to him as his cestui que trust. The original cestui 
 que trust, though he has in fact parted with his interest, 
 appears to the world to be the complete equitable owner, and 
 remains in the order, management, and disposition of the 
 property as absolutely as ever, so that he has it in his 
 power to obtain by means of it a false and delusive credit. 
 He may come into the market to dispose of that which 
 he has previously sold ; and how can those who may chance 
 to deal with him protect themselves from his fraud ? 
 Whatever diligence may be used by a puisne incura- 
 brancer or purchaser, whatever inquiries he may make 
 in order to investigate the title, and to ascertain the exact 
 state of the original right of the vendor, and his continu- 
 ing right, the trustees who are the persons to whom appli- 
 cation for information would naturally be made, will truly 
 and unhesitatingly represent to all who put questions to 
 them, that the fund remains the sole absolute property of 
 the proposed vendor. These inconveniences and mischiefs 
 are the natural consequences of omitting to give notice to 
 trustees, and they must be considered as foreseen by those 
 who in transactions of that kind omit to give notice ; for 
 they are the consequences which in the experience of man- 
 kind usually follow such omissions. To give notice is a 
 matter of no difficulty ; aud whenever persons, treating 
 for a chose-in-action, do not give notice to the trustee or 
 executor, who is the legal holder of the funds, they do not 
 perfect their title ; they do not do all that is necessary in 
 order to make the thing belong to them in preference to 
 all other persons ; and they become responsible in some 
 respects for the easily foreseen consequences of their 
 negligence." 1 
 
 The assignment may be by way of mortgage, and in the Mortgage, 
 case of mortgages of policies or shares, it would seem that 
 the actual possession of the policy or certificate is imma- 
 terial as affecting the priority gained by notice. 2 Where a 
 policy is deposited as security for money advanced, and 
 the intention of the parties was only to give a lien by the 
 
 1 And see Loveridge v. Cooper, 3 Russ. , 30 ; Meux v. Bell. 1 Hare. 73 ; 
 E.f pnrtc Boulton, 1 DeG. and J., 163 ; Morris v. Cannan. 8 Jur., N. S , 
 653; In re Freshfield's Trust. L. R.. 11 Ch. Div., 198; Megji Hansraj r. 
 Ramji Joita. 8 Bora H. C R.. 0. C., 177. 
 
 * Foster v. Cockerell, 3 C. and F., 456. 
 
278 NOTICE. 
 
 LECTURE deposit, and not to confer an equitable right on the lender to 
 % receive the money, the instrument is not in the order and 
 disposition of the borrower. 1 But if the deposit is made 
 upon an agreement that the depositee shall have conferred 
 upon him a right to the money, then as the debt would pass 
 to the assignee, the instrument which is the title-deed to 
 the debt will pass also, 2 Where a policy was to become 
 void in certain cases, unless it " should have been legally 
 assigned," it was held, that this meant " validly and effec- 
 tually assigned," tHat an equitable charge, by mere deposit, 
 came within the exception, and that notice of it to the 
 office was unnecessary. 3 
 
 Secondly. Notice is necessary to prevent the trustee 
 from paying over the trust-fund to the cestui que trust, 4 " 
 and in the case of a policy of assurance, to prevent the 
 office from taking a surrender from him. 5 
 
 Thirdly. Notice is necessary in order to prevent choses- 
 in-action in the possession, order, and disposition of an 
 insolvent, or of which he is the reputed owner, from pass- 
 ing to the Official Assignee, for choses-in-action are goods 
 and chattels within the reputed-ownership clause of the 
 Insolvent Act. 6 The assignment of a policy of insurance 
 does not take it out of the order and disposition of the 
 assignor, if no notice is given to the insurer. 7 Shares in 
 companies are not things in action within the Act; 8 but 
 debentures of a company by which they undertake to pay 
 a sum of money and interest, and charge the undertaking 
 and property with the payment thereof are within it. 9 
 of eSC ro P er 0n ^ Q notice should specify the property charged with 
 ty. P reasonable accuracy. A mistake will not vitiate the notice 
 as against a subsequent purchaser, if the fund to be charged 
 is mentioned. 10 Notice by parol is sufficient, but it is better 
 to give it in writing. 11 
 
 I Gibson v. Overbury, 7 M. & W., 555 ; Broadbent v. Varley. 12 C. B., 
 N. S., 214. * Green v. Ingham, L. R., 2 C. P., 525. 
 
 3 Dufaur v. The Professional Life Assurance Co., 25 Beav., 599. 
 
 4 Jones o. Gibbons, 9 Ves.. 410. 
 
 5 Fortescue v. Barnett, 3 M. & K, 36. 6 11 & 12 Viet., c. 21, s. 23. 
 
 7 Williams v. Thorp, 2 Sim., 257 ; Green v. Ingham, L. R., 2 C. P., 525. 
 
 8 Union Bank of Manchester, In re Jackson. L. R.. 12 Eq., 354. 
 
 9 In re Pryce, L. R., 4 Ch. Div., 685. As to equitable interests in 
 shares, see Ex parte. Barry, L. R., 17 Eq., 113 ; and as to debts, North v. 
 Gurney, 1 J. & H., 509. 
 
 10 He Bright's Trusts, 21 Beav., 430 ; Woodburn v. Grant, 22 Beav., 483. 
 
 II North British Insurance Co. v. Hallett, 7 Jur., N. S., 1263; Ex parte 
 Agra Bank, In re Worcester, L. R., 3 Ch., 565. 
 
NOTICE. 279 
 
 Knowledge of an incumbrance acquired not by notice but LECTURE 
 aliunde is apparently sufficient. In Lloyd v. Banks, 1 Lord 
 Cairns, L. C., said : " I do not think it would be consistent whaTis 
 with the principles upon which this Court has always pro- sufficient 
 ceeded, if I were to hold that, under no circumstances, could uotlce - 
 a trustee, without express notice from the incumbrancer, 
 be fixed with knowledge of an incumbrance upon the fund 
 of which he is the trustee, so as to give the incumbrancer 
 the same benefit which he would have had if he had him- 
 self given notice to the trustee. It must depend upon the 
 facts of the case ; but I am quite prepared to say that I 
 think the Court would expect to find that those who 
 alleged that the trustee had knowledge of the incumbrance 
 had made it out, not by any evidence of casual conversa- 
 tion, much less by any proof of what would only be 
 constructive notice, but by proof that the mind of the 
 trustee has in some way been brought to an intelligent 
 apprehension of the nature of the incumbrance which has 
 come upon the property, so that a reasonable man, or an 
 ordinary man of business, would act upon the information 
 and would regulate his conduct by it in the execution of 
 the trust. If it can be shown that in any way the trustee 
 has got knowledge of that kind knowledge which would 
 operate on the mind of any rational man, or man of busi- 
 ness, and make him act with reference to the knowledge 
 he has so acquired then I think the end is attained, and 
 that there has been fixed upon the conscience of the trustee, 
 and through that upon the trust- fund, a security against 
 its being parted with in any way that would be incon- 
 sistent with the incumbrance which has been created." 2 
 
 The person to whom notice is to be given is the person To whom 
 liable. 3 In the case of a company, notice to any officer who 
 represents the company, such as the manager or agent, 4 
 or a director, 5 or official liquidator, 6 is sufficient. But 
 notice to a shareholder is not. 7 Should the trustee disregard 
 the notice and pay away the money to the cestui que trust, 
 
 1 L. R., 3 Ch., 490. 
 
 2 And see Ex parte Agra Bank, In re Worcester, L. R., 3 Ch., 555. 
 
 3 Exparte M'Turk, 2 Deac.. 58. 
 
 4 Ex parte Hennessey, 2 Dr. and War., 555 ; Thompson v. Tomkins, 
 
 2 Dr. and Sm... 8. 
 
 5 E,r parte Stewart. 11 Jur., N. S., 25 ; Ex parte Agra Bank, L. R., 
 
 3 Ch., 555. 
 
 Me Breech Loading Co.. L. R., 5 Eq., 281. 
 7 Martin v. Sedgwick, 9 Beav., 333. 
 
280 
 
 NOTICE. 
 
 LECTUHE 
 X. 
 
 Agents. 
 
 Notice to 
 one of 
 several 
 trustees. 
 
 Notice 
 before 
 trust-fund 
 received. 
 
 Bankers. 
 
 Trustee 
 purchaser. 
 
 he will be personally liable. 1 Notice to the solicitor of 
 trustees or of the person liable, is notice to the client. 2 
 But notice to a solicitor employed in one transaction is not 
 notice to him when employed for another person in a 
 different transaction. 3 The circumstances of a mortgagor 
 
 o o 
 
 being a solicitor and preparing the mortgage-deed, and of 
 the mortgagee employing no other solicitor, are not suffi- 
 cient to constitute the former the solicitor of the latter, so 
 as to affect him with notice of an incumbrance known to 
 the solicitor. 4 
 
 When the agent of a company and the assignor are the 
 same person, notice to the agent is not sufficient. 
 
 Notice to one of several trustees is sufficient during his 
 lifetime, 6 but it is better that notice should be given to 
 all. 7 If only one trustee has had notice, and he dies, or 
 ceases to be trustee, a subsequent incuinbraucer will gain 
 priority by giving notice to a surviving or other trustee 
 prior to any notice to him by the first iucumbrancer. 8 
 
 Notice to persons who are not trustees, though they are 
 likely to be trustees, or before they have actually received 
 the trust-fund, is nugatory. 9 
 
 When funds are in a banker's hands for distribution on a 
 particular day, notice given after business hours on the 
 previous day gives no priority over a notice given on the 
 morning of that day and before the commencement of 
 business. 10 
 
 A trustee who becomes the purchaser or mortgagee of 
 the interest of his cestui que trust should give notice to 
 one of his co-trustees. 11 If a trustee assign to a co-trustee, 
 
 1 Andrews r. Bousfield. 10 Beav., 511 ; Ctephens v. Venables. 30 Beav . 627. 
 
 2 Rickards v. Gledstanes, 4 Giff., 298 ; Atterbury v. Wallis. 8 D. M. G-., 
 454 ; Sharpe v. Foy. L. R.. 4 Ch., 35 ; Rolland v. Hart, L. R., 6 Ch., 678. 
 
 3 Lloyd v. Attwood, 3 DeG. and J.. 614. 
 
 4 Espin r. Pemberton, 3 DeG. and J., 547. 
 
 5 Re Hennessey. 2 Dr. and War.. 555. As to notice to agents or others 
 who have themselves advanced money, see Webster r. Webster, 31 Beav., 
 393 ; Somerset v. Cox. 33 Beav., 634 ; Megji Hansraj v. Ramji Joita, 
 8 Bom. H. C. R., O. C., 178. 
 
 6 Willes -e. Greenhill. 4 D. F. J., 147. 
 
 7 Smith r. Smith. 2 Cr. and M., 231. 
 
 8 Timson v. Ramsbottom. 2 Ke.. 35 : Meux v. Bell, 1 Hare, 73. 
 
 9 Buller v. Plunkett. 1 J. and H., 441 ; Somerset v. Cox, 33 Beav.. 634 ; 
 Calisher v. Forbes. L. R., 7 Ch., 109 ; Addison v. Cox, L. R., 8 Ch., 76. 
 
 10 Calisher v. Forbes, L. R., 7 Ch., 109. 
 
 11 Timson v. Ramsbottom, 2 Ke , 35; Ex parte Smart, 2 Mon. and A., 
 60 ; Commissioners of Public Works v. Harby, 23 Beav., 508. 
 
NOTICE. 281 
 
 that is sufficient notice, 1 otherwise if he assign to a LECTURE 
 stranger. 2 When a fund is subject to the trusts of a set- 
 tlement, and is under the control of the trustees of it, and 
 then is assigned to other trustees of another settlement in 
 trust for a particular person who mortgages, notice should 
 be given to the first trustees who have the fund in their 
 hands. 3 As between the assignor or his representatives 
 and the assignee,* or as against a subsequent incum- 
 brancer who has notice of the prior charge, notice is un- 
 necessary. 5 
 
 It may be observed that the assignee of a debt is not Non- 
 bound to give notice of its nonpayment to the assignor. 6 P a . vin ent 
 Where two assignments are contained in one deed, notice 
 of one is not constructive notice of the other. 7 
 
 A mortgagee who gives notice lias priority over a cestui Mortgagee. 
 que trust claiming under a declaration of trust, of which no 
 notice has been given. 8 
 
 These rules as to notice do not extend to interests in immove- 
 immoveable property as such, 9 neither do they to stock or able P ro ~ 
 money directed to be converted, which in equity is immove- per y ' 
 able property, 10 though notice is necessary of mortgages of 
 the proceeds of land directed to be sold or mortgaged, 11 
 or of portions directed to be raised by means of a term, 
 or generally of any charge which can only reach the person 
 entitled in the shape of money. 12 
 
 Where the subject-matter of the mortgage is a fund in Stop-order. 
 Court, a stop-order, that the fund shall not be transferred 
 without notice to the mortgagee, should be obtained from 
 the officer in charge of the fund. This will be equivalent 
 to notice to the trustees of the fund. 13 Mere notice to the 
 
 1 Browne t-JSavage. 4 Drew.. 635. 
 
 2 Ibid ; see Willes v. Greenhill. 4 D. F. J., 147. 
 
 I Bridge v. Beadon. L. R.. 3 Eq.. 664 ; Holt c. Dewell, 4 Hare, 447. 
 
 4 lie Lowe's Settlement, 30 Beav., 95. 
 
 5 Warburton c Hill, Kay. 470. 
 Glyn v Hood. 1 D. F. J., 334. 
 
 7 lie Bright' s Trusts. 21 Beav.. 430. 
 
 8 Martin r. Sedgwick. 9 Beav., 333 ; Newton v. Newton, L. R., 6 Eq., 
 140. As to the equities between a cestui qne trust and mortgagee of 
 shares in a company, see Murray v. Pinkett. 12 C. and F., 784. 
 
 9 Wiltshire v. Rabbits. 14 Sim., 76 ; Wilmot v. Pike. 5 Hare, 14. 
 
 10 lie Carew. 16 W. R. (Eng.), 1077. 
 
 II Foster v'. Cockrell. 3 C. and F., 456 ; Consol, etc. Co. v. Riley, 
 1 Gift 3 ., 371 ; Lee r. Hewlett, 2 K. and J., 531. 
 
 l - lie Hughes, 2 H. and M.. 89 ; Barnes v. Pinkney, 36 L. J., Ch., 815. 
 
 11 Greeuiug r. Beckford, 5 Sim., 195 ; Ssvayne r. Swayne, 11 Beav., 463. 
 
 30 
 
282 
 
 EIGHT TO EXECUTION OF TRUST. 
 
 LECTURE officers in charge would not be equivalent to a stop-order. 1 
 x - Notice to the trustees of a fund before it is paid into 
 Court gives priority over a subsequent incumbrancer of it 
 after it is paid in, though the latter alone obtains a stop- 
 order. 2 A stop-order only operates in respect of a charge 
 existing at the time of the order. 3 
 
 Right to 
 execution 
 of trust. 
 
 Suit for 
 execution 
 of trust. 
 
 If a trust has been properly created either by the declara- 
 tion of the author, or by implication of law, it will not be 
 allowed to fail for want of a trustee. 4 Thus, if property is 
 bequeathed to trustees upon certain trusts, and the trustees 
 die in the lifetime of the testator, the trusts will not be 
 void; 5 or if the trustee disclaims, 6 or is incapable of taking, 7 
 or if the trustee fail from any other cause, the failure will 
 be supplied by the Court. 8 " I take it," said Wtlmot, C. J., 
 " to be a first and fundamental principle in equity, that the 
 trust follows the legal estate wheresoever it goes, except it 
 comes into the hands of a purchaser for valuable considera- 
 tion without notice. A Court of Equity considers devises of 
 trust as distinct substantive devises, standing on their own 
 basis independent of the legal estate, and the legal estate is 
 nothing but the shadow which always follows the trust- 
 estate in the hands of a Court of Equity." ! 
 
 If the trustee fails, the cestui que trust may institute a 
 suit for the execution of the trust, and the trust will be 
 executed by the Court until trustees can be appointed. 
 " The Court," said Lord Eldon, " will not permit the negli- 
 gence of the trustee, accident, or other circumstances to 
 disappoint the interests of those for whose benefit the 
 trust is to be executed." 10 " The person who creates a trust," 
 said Wilmot, C. J., " means it should at all events be exe- 
 cuted. The individuals named as trustees are only the 
 
 1 Warburton v. Hill. Kay. 470. 
 
 a Livesey r. Harding, 23 Beav.. 141 ; see Brearcliffe r. Dorrington. 4 DeG. 
 and S.. 122. 
 
 3 Macleod r. Buchanan. 33 Beav.. 234. 
 
 4 White r. Baylor, 10 Ir. R.. Eq.. 53. 
 
 5 Moggridge v Thackwell. 3 Bro. C. C., 528 ; Attorney-General r. Lady 
 Downing, Ambl., 551. 
 
 6 Backhouse v. Backhouse, V. C. of England, 20th Deer.. 1844. cited 
 Lewin. 7th Edn.. 706. 
 
 7 Sonley v. The Clockmakers' Co.. 1 Bro. C. C.. 81 
 
 8 Attorney-General v. Stephens, 3 M. and K., 352. 
 
 9 Attorney-General v. Lady Downing. Wilm., 21. cited Lewin, 7th Edn., 
 707. 
 
 10 Brown v. Higgs, 8 Ves., 574. 
 
INTENTION OF SETTLOR TO BE EXECUTED. 283 
 
 nominal instruments to execute that intention, and if they LECTURE 
 fail, either by death, or by being under disability, or by 
 refusing to act, the constitution has provided a trustee. 
 Where no trustees are appointed at all, this Court assumes 
 the office. There is some personalty in every choice of 
 trustees ; and if the trust cannot be executed through the 
 medium which was in the primary view of the testator, it 
 must be executed through the medium which the consti- 
 tution has substituted in its place." l 
 
 In executing a trust, the Court acts upon and carries intention 
 out the intention of the author of the trust, and does not | t",^ t or 
 go beyond it, except in cases where the parties have the carried 
 same common interest, or those who have an adverse out> 
 interest are consenting. And the Court will, in some cases, 
 act retrospectively, as in directing past maintenance. 2 The 
 difficulty and impracticability of carrying the trust into 
 execution will not prevent the Court from acting. How- 
 ever arduous the trust is, the Court will carry it into 
 execution. 3 However difficult it may be to select the 
 persons intended to be benefited, and though it must 
 depend from the nature of the trust upon the opinion 
 of the trustees as to the merits of the persons who are 
 the objects, yet the Court will execute the trust. If a 
 trust can by any possibility be exercised by the Court, 
 the non-execution by the trustees shall not prejudice the 
 cestuis que trustent. If the settlor has laid down a rule 
 for the trusts, or if he has empowered his trustees to act 
 upon a certain state of facts of which the Court can be 
 informed by evidence, and judge as well as the trustees 
 could, the Court can make the judgment as well as the 
 trustees, and when informed by the evidence, can judge 
 what is just and equitable. 5 If no rule has been given by 
 the trustees, the Court will generally act upon the maxim 
 that " equality is equity." 6 If, however, the nature of the 
 trust is such that .equal division is impossible, the Court 
 
 1 Attorney-General r. Lady Downing-. Wilm.. 23, cited Lewin, 7th 
 Edn.. 708. 
 
 - Maberly r. Turton, 14 Ves.. 499 ; Edwards v. Grove, 2 DeG. F. and J., 222. 
 1 Pierson r. Garnet. 2 Bro. C. C., 46. 
 
 4 Brown t. Higgs. 5 Ves.. 504. 
 
 5 Gower r Mainwaring. 2 Yes. Sr., 87. 
 
 6 Malim r. Keiarhley. 2 Ves. Jr.. 333 : Brown v. Higgs. 5 Ves.. 504 ; Birch 
 v. Wade. 3 V. and B.. 198 : Burrough v. Philcox. 5 My. and Cr., 73 ; Fordyce 
 r. Bridges. 2 Phil., 497 ; Salusbury v. Denton, 3 K. and J., 529 ; Izod r. 
 Izod, 32 Beav.. 242 
 
284 EIGHT TO PROPER TRUSTEES. 
 
 LECTURE still acts upon the maxim that if by any possibility the 
 x - trust can be executed, the Court will do it. 1 
 
 Eight to The cestui que trust has a right to have the trust-pro- 
 trustees. perty administered by proper persons, and by a proper 
 number of persons. If, therefore, a trustee dies, 2 or goes 
 abroad, 3 the cestui que trust, even though only in remainder, 4 
 may sue to have the proper number of trustees filled up. 
 Suit for So, if a trustee disclaims the office or refuses to act, 5 or if 
 nleatof" there is a disability on the part of the trustee to act, as 
 new where he takes up his permanent residence abroad, 6 the 
 
 ees ' cestui que trust may institute a suit to have him removed 
 and to have a new trustee appointed in his place. The 
 taking up a permanent residence abroad does not ipso 
 facto deprive a trustee of his office, but still it is such a 
 disqualification as entitles the cestui que trust to have a 
 new trustee appointed. 7 So it is a good ground for the 
 removal of a trustee and the appointment of a new trustee 
 that he has become insolvent, 8 although insolvencj'', as we 
 have seen (ante, p. 131), is not necessarily a disqualification 
 for the office. Again a trustee may be removed if he mis- 
 applies the revenues of the trust-property, and grossly mis- 
 behaves himself in the execution of the trust, 9 as by 
 renewing a lease for his own benefit, 10 purchasing the trust- 
 property, 11 concurring in a breach of trust, 12 or absconding 
 under a charge of forgery. 13 
 
 " If the trust be under the administration of the Court, and 
 the surviving trustee dies, the appointment of other trustees 
 is not a matter of course, but rests in the discretion of the 
 Court, having regard to the state of the trust at the time." 14 
 
 ' O O 
 
 1 As to powers, see Lewin, 7th Edn., 708. 
 
 2 Hibbard v. Lamb, Ambl.. 309. 
 
 3 Buchanan v. Hamilton, 5 Ves.. 722. 
 
 4 Finlay v. Howard. 2 Dru. and War., 490. 
 
 s Wood v. Stane. 8 Price, 613 ; Anon., 4 Ir. Eq. Rep., 700. 
 
 6 In re Ledwich. 4 Ir. Eq. Rep ; Commissioners of Charitable Donations 
 v. Archbold, 11 Ir. Eq. Rep., 187 ; O'Reilly v. Alderson, 8 Hare, 101. 
 
 7 O'Reilly v. Alderson, 8 Hare, 101. 
 
 8 Bainbrigge v. Blair. 1 Beav., 495 ; Commissioners of Charitable Dona- 
 tions v. Archbold. 11 Ir. Eq. Rep.. 187 ; Harris v. Harris, 29 Beav., 107 ; 
 In re Adam's Trust, L. R., 12 Ch. Div., 634. 
 
 9 In re. Powell, 6 N. W. P.. 54 ; Mayor of Coventry v. The Attorney- 
 General, 7 Bro. P. C., 235 ; Buckeridge r. Glasse, 1 Cr. and Ph., 126. 
 
 10 Ex parte Phelps, 9 Mod., 357. 
 
 11 Ex parte Reynolds. 5 Ves., 707. K Ibid. 
 
 11 Millard v. Eyre, 2 Ves. Jr., 94. 14 Lewin, 7th Edn., 720. 
 
REMOVAL OF TRUSTEES. 285 
 
 In a suit filed by the cestui que trust for the purpose of LECTURE 
 removing a trustee, it is not scandalous or impertinent to 
 challenge every act of the trustee as misconduct, nor to 
 impute to him any corrupt or improper motive in the exe- 
 cution of the trust, nor to allege that his conduct is the 
 vindictive consequence of some act on the part of the ces- 
 tui que trust, or of some change in his situation ; but it 
 is impertinent, and may be scandalous, to state any cir- 
 cumstances as evidence of general malice or personal 
 hostility. 1 
 
 If the trustee is removed on the ground of misconduct, Costs, 
 he must bear the costs of the suit, as it is an act necessi- 
 tated by himself. 2 
 
 The Court will not discharge a trustee merely because, Grounds for 
 in the exercise of his discretion, he refuses to do some act o^'trustee. 
 required by his cestui que trust, as where he refuses to 
 consent to a particular investment, even though the trus- 
 tee is willing to be relieved from the trust. 3 Nor will the 
 Court remove a trustee because he has been under a 
 misunderstanding as to his duty. 4 
 
 Where it appeared that the co-trustees were unwilling 
 to act in the trust with the trustee who was sought to 
 be discharged, and he insisted on being continued, Lord 
 Nottingham said, " I like not that a man should be ambi- 
 tious of a trust, when he can get nothing but trouble by it ;" 
 and without any reflection on the trustee, declared that he 
 should meddle no further in the trust. 5 
 
 Where the Court appoints new trustees, it will not give 
 them the power of appointing new trustees in their stead. 6 
 
 In appointing new trustees, the fitness of the proposed Rules for 
 new trustee is a matter for consideration. The author of selecting 
 the trust is unfettered in his selection of trustees, but tees. 
 when the Court appoints new trustees, it requires to be 
 satisfied as to their fitness for the office. Near relations 
 of the cestui que trust, though they may be appointed by 
 the person creating the trust, will not be appointed by the 
 Court except in cases of absolute necessity. 
 
 1 Earl of Portsmouth v. Fellows, 5 Mad., 450. 
 
 2 Ex parte Greenhouse, 1 Mad., 92. 
 
 3 Pepper r. Tuckey. 2 J and Lat. , 95 ; Lee v. Young, 2 Y. and C. C. C., 532. 
 
 4 Attorney-General v. The Coopers' Co., 19 Ves., 192 ; Attorney-Gener- 
 al v. Caius College, 2 Keen, 150. 
 
 5 Uvedale v. Ettrick, 2 Ch. Cas., 130. 
 
 6 Oglander v. Oglander, 2 DeG. and Sm., 381 ; Holder v. Durbin, 
 11 Beav., 594. 7 Wilding r. Bolder. 21 Beav., 222. 
 
286 APPOINTMENT OF NEW TRUSTEES. 
 
 LECTURE The principles upon which the Court acts in appointing 
 x - new trustees were thus stated by Turner, L. J., in lit, re 
 Jn re Tern- Tempest .' l " It was said in argument, and it has been fre- 
 pest. quently said, that, in making such appointments, the Court 
 
 acts upon and exercises its discretion ; and this, no doubt, 
 is generally true ; but the discretion which the Court has 
 and exercises in making such appointments, is not, as I 
 conceive, a mere arbitrary discretion, but a discretion in 
 the exercise of which the Court is, and ought to be, gov- 
 erned by some general rule and principles ; and, in my 
 opinion, the difficulty which the Court has to encounter 
 in these cases lies not so much in ascertaining the rules 
 and principles by which it ought to be guided, as in apply- 
 ing those rules and principles to the varying circumstances 
 of each particular case. The following rules and prin- 
 ciples may, I think, safely be laid down as applying to all 
 cases of appointments, by the Court, of new trustees : 
 
 "First, the Court will have regard to the wishes of the 
 persons by whom the trust has been created, if expressed 
 in the instrument of trust, or clearly to be collected from 
 it. I think this rule may be safely laid down, because if 
 the author of the trust has in terms declared that a 
 particular person, or a person filling a particular character, 
 should not be a trustee of the instrument, there can- 
 not, as I apprehend, be the least doubt that the Court 
 would not appoint to the office a person whose appoint- 
 ment was so prohibited ; and I do not think that upon 
 a question of this description any distinction can be drawn 
 between express declarations and demonstrated intention. 
 The analogy of the course which the Court pursues in the 
 appointment of guardians affords, I think, some support to 
 this rule. The Court in those cases attends to the wishes 
 of the parents, however informally they may be expressed. 
 " Another rule which may, I think, safely be laid down 
 is this that the Court will not appoint a person to be 
 trustee with a view to the interest of some of the persons 
 interested under the trust, in opposition either to the 
 wishes of the testator or to the interests of others of the 
 cestuis que trustent. I think so for this reason, that it is of 
 the essence of the duty of every trustee to hold an even hand 
 between the parties interested under the trust. Every trus- 
 tee is in duty bound to look to the interests of all, and not 
 
 1 L. R., 1 Ch., 485. 
 
SUITS AGAINST TRUSTEES REGARDING TRUST. 287 
 
 of any particular member or class of members of his cestuis LECTOBB 
 que trustent. x - 
 
 A third rule which, I think, may safely be laid down, 
 is that tlie Court, in appointing a trustee, will have 
 regard to the question, whether his appointment will 
 promote or impede the execution of the trust, for the 
 very purpose of the appointment is, that the trust may be 
 better carried into execution." 
 
 And as another rule, it may be said, that the Court will 
 have regard to the wishes of the persons, if any, empowered 
 to appoint new trustees. 1 
 
 We have seen (ante, p. 137) that a trustee is bound to pro- Right to 
 tect the trust-estate ; and if he fails in his duty, the cestui c"" 1 !* 51 
 que trust may institute a suit to compel him to act. 2 Where, ^."ac^of 
 by the terms of a marriage settlement, a trustee was to (lut y- 
 compel payment of a sum of money due on covenant, but by 
 consent of the cestuis que trustent the money was left out- 
 standing on that security, it was held, upon their subsequent 
 application to have the money called in and invested, that 
 the trustee was bound, if necessary, to enforce payment by 
 an action on the covenant without requiring any indem- 
 nity from the cestuis que trustent; and in default of so 
 doing, he was compelled to pay the costs of a suit brought 
 against him to enforce the execution of the covenant. 3 
 
 Not only may a cestui que trust institute a suit to injunction, 
 compel a trustee to do any particular act of his duty as 
 such, but he may obtain an injunction to restrain his 
 trustee from doing any act which would amount to a 
 breach of trust. It is a principle of the Court of Equity 
 that a trustee shall not be permitted to use the powers 
 which the trust may confer upon him except for the legi- 
 timate purposes of the trust. 4 The Specific Relief Act 5 
 provides that " a perpetual injunction may be granted to 
 prevent the breach of an obligation existing in favour of 
 the applicant, whether expressly or by implication. When 
 the defendant invades, or threatens to invade, the plaintiff's 
 right to, or enjoyment of, property, the Court may grant a 
 perpetual injunction in the following case (namely) : 
 
 " () When the defendant is a trustee for the plaintiff." 
 
 1 Middleton r. Reay. 7 Hare. 106. 
 
 2 Foley v. Burnell, 1 Bro. C. C.. 277 ; Crossley r. Crowther, 9 Hare, 386. 
 
 3 Kirby v. Mash, 3 Y. and C. Ex., 295 ; and see Fletcher r. Fletcher, 
 4 Hare. 78. 
 
 4 Balls v. Strutt. 1 Hare, 146 ; M'Fadden r. Jenkyns. 1 Ph.. 153 ; Wiles 
 r. Gresham, 17 Jur., 779. 5 I of 1S77, s. 54. 
 
288 ITS JUNCTION. 
 
 LECTUIIK And the following illustration is appended to the section, 
 ^ " A trustee threatens a breach of trust. His co- 
 trustees, if any, should, and the beneficial owners may, sue 
 for an injunction to prevent the breach of trust." l When 
 the act complained of would, if done, be irremediable, 
 the Court will interfere as a matter of course. 2 The juris- 
 diction of the Court, however, rests not upon the fact that 
 the injury would be irremediable, but upon the breach of 
 trust. 3 If a sale by trustees is conducted in such a manner 
 that, as between the trustees, who have the power of sale, 
 and the cestuis que trustent, it constitutes a breach of 
 trust, the cestuis qui trustent are entitled to prevent 
 the sale from being completed, leaving the purchaser to 
 his remedy against the trustees. 4 Any one of the cestuis 
 que trustent, however small his interest may be, and 
 though an infant, may sue. 5 Although the words of an 
 Act be imperative, and there is no qualification on the face 
 of the section, the inherent authority of a Court of Equity 
 to repress fraud and prevent unfair dealing, and to exer- 
 cise a wholesome control over persons standing in the cha- 
 racter of trustees, empowers the Court to look into the 
 circumstances and to decide whether it ought or not to 
 do that which the Legislature has, primd facie, commanded 
 to be done. An injunction accordingly was granted, on a 
 proper case being made out, to restrain the directors of a 
 company from acting on an order for payment out of Court 
 to them of a sum of money, notwithstanding the words 
 of the Act under which the order was made were impera- 
 tive. 6 A cestui que trust, who has a common interest 
 with others in the trust-property, is entitled to sue on 
 behalf of himself and the others for the protection of the 
 property by injunction. 7 And the Court may interfere 
 by injunction, even though no breach of trust has been 
 
 1 See In re Chertsey Market. 6 Price, 279. 
 
 2 He Chertsey Market. 6 Price, 279 ; Attorney- General v. Foundling 
 Hospital, 2 Ves. Jr.. 42 ; Reeve v. Parkins, 2 J. and W., 390. 
 
 * Webb v. Earl of Shaftesbury, 7 Ves., 487 ; Attorney-General v. Corpora- 
 tion of Liverpool. 1 M. and Cr., 210; Attorney-General v. Aspinall, 2 M. and 
 Cr., 613 ; Milligan v. Mitchell. 1 M. and K., 446 ; Anon., 6. Madd., 10, over- 
 ruling Pechel v. Fowler, 2 Anst., 549. 
 
 4 Dance v. Goldingham, L. R., 8 Ch., 902. 
 
 Ibid,9l3. 
 
 6 Kerr on Injunctions, 2nd Edn., 462, citing Goodman v. De Beauvoir, 
 4 Ra. Ca., 381. 
 
 7 Scott v. Becher, 4 Price, 346 ; and see Dance v. Goldingham, L. R., 
 8 Ch., 902. 
 
WRONGFUL PURCHASE BY TRUSTEE. 289 
 
 committed, if from the character of the trustee it is pro- LECTURE 
 bable that the trust-fund may be lost or injured. Thus, 
 an injunction against parting with the ti'ust-property may 
 be obtained against an insolvent trustee, 1 or one who is 
 proved to be of bad character, drunken habits, and great 
 poverty. 2 But the Court will not grant such an injunction 
 merely because the trustee is poor. 3 
 
 There is another important class of cases in which a Wrongful 
 cestui que trust has the right to seek the assistance of a purchase 
 Court of Equity against his trustee, namely, those in y 
 which the trustee has improperly purchased the trust- 
 estate. 4 I now propose to consider the nature of the 
 relief which the Court will grant in such cases. 
 
 The cestui que trust, or his representatives, may, if the 
 property is still in the hands of the trustee, insist upon a 
 reconveyance by the trustee, 5 who will be discharged at 
 once. 6 
 
 If the trustee has sold the property to a purchaser with 
 notice of the breach of trust, the cestui que trust can 
 insist upon a reconveyance by the purchaser. 7 
 
 The reconveyance will be without prejudice to the 
 interests of persons, such as lessees, who have contracted 
 with the trustee or his vendor bond fide before the suit 
 was instituted. 8 
 
 The cestui que trust must, on the reconveyance, repay Interest, 
 the purchase-money with interest, 9 which in this country 
 would be at the rate of 6 per cent. Where a trustee had 
 paid a part of the purchase-money into Court, and it had 
 
 1 Mansfield v. Shaw, 3 Mad., 100 ; Scott v. Becher, 4 Price, 346 ; 
 Taylor v. Allen, 2 Atk., 213. 
 
 2 Everett v. Prythergch, 12 Sim., 365. 
 
 3 Howard v. Papera, 1 Mad., 143 ; Hathornthwaite v. Russell, 2 Atk., 126. 
 As to interfering in the case of religious trusts, see Kerr on Injunc- 
 .tions, 2nd Edn., 463. 
 
 4 See ante. p. 256. 
 
 5 Lord Hardwicke v. Vernon, 4 Ves., 411 ; Ex parte James, 8 Ves., 
 351 ; Ex pane Bennett. 10 Ves., 400 ; Randall v. Errington, 10 Ves.. 423 ; 
 York Buildings Co. v. Mackenzie, 8 Bro. P. C., 42 ; Hamilton v. Wright, 
 9 C. and F.. 123. 
 
 6 Ex partc Bennett, 10 Ves., 400. 
 
 7 Dunbar v. Tredennick, 2 Ball and B., 304 ; Pearson v. Benson, 
 28 Beav., 598. 
 
 8 York Buildings Co. v. Mackenzie. 8 Bro. P. C., 42. 
 
 9 Hall v. Hallet. 1 Cox, 134 ; Watson v. Toone, 6 Mad.. 153 ; Camp- 
 bell v. Walker. 5 Ves., 682 ; Ex parte James, 8 Ves., 351 ; York Buildings 
 Co. v. Mackenzie, 8 Bro. P. C., 42. 
 
 37 
 
290 WRONGFUL PURCHASE BY TRUSTEE. 
 
 LECTURE been invested in stock, the value of which had risen when 
 the purchase was set aside, it was held, that he was only 
 entitled to his purchase-money with interest, for, if the 
 stock had fallen instead of advancing, he could not have 
 been compelled to take it. 1 The trustee must account for 
 the profits of the trust-property come to his hands, 2 
 but not with interest. 3 If, however, he was in possession, 
 he will be charged with an occupation-rent. 4 
 
 for'cmtlay 8 . ^ ^ ne trustee has expended money in substantial 
 improvements or lasting repairs, or such as have a ten- 
 dency to bring the estate to a better sale, 6 he will be 
 allowed credit for the moneys so expended. In estimat- 
 ing the improvements, old buildings, if incapable of repair, 
 will be valued as old materials, but otherwise as buildings 
 standing. 7 On the other haud, the trustee will be charged 
 for acts that deteriorate the value of the estate. 8 When 
 the contract is vitiated by the presence of actual fraud, 
 allowance will still be made to the trustee for necessary 
 repairs ; 9 and in one case allowance was made for mate- 
 rial repairs and lasting improvements. 10 But in another 
 case of actual fraud the Court refused any allowance for 
 improvements. " If," said Lord Fitzgibbon, " a man has 
 acquired an estate by rank and abominable fraud, and shall 
 afterwards expend his money in improving the estate, 
 is he therefore to retain it in his hands against the lawful 
 proprietor? If such a rule should prevail, it would justify 
 a proposition I once heard at the bar, that the common 
 equity of the country was to improve the right owner out 
 of the possession of his estate." l 
 
 Reconvey- Where a reconveyance is directed, it must be made at 
 
 -ance. once, unless the trustee is given a lien for the balance 
 011 taking the accounts. 12 
 
 1 Ex parte James, 8 Ves., 351. 
 
 2 Exparte Lacey, 6 Ves., 630 ; Ex parte James, 8 Ves.. 351 ; Watson c. 
 Toone, 6 Mad., 153 ; York Buildings Co. v. Mackenzie, 8 Bro., P. C , 42. 
 
 3 Macartney v. Blackwood, cited Lewin, 7th Edn., 444. 
 
 4 Ex parte James, 8 Ves., 351. 
 
 fi Ex parte Hughes, 6 Ves., 624 : Ex parte James, 8 Ves., 352. 
 6 Ex parte Bennett, 10 Ves., 400 ; York Buildings Co. v. Mackenzie, 
 8 Bro., P. C., 42. 
 
 " Robinson v. Ridley, 6 Mad., 2. 
 
 * Ee parte Bennett, 10 Ves., 401. 
 
 8 Lewin, 7th Edn.. 444. citing Baugh v. Price. 1 G. Wils., 320. 
 
 10 Oliver v. Court. 8 Price. 172. 
 
 11 Lewin. 7th Edn., 445, citing Kenney v. Browne, 3 Ridg., 518. 
 
 12 Trevelyan v. Charter, 9 Beav., 140. 
 
FOLLOWING TRUST ESTATE. 291 
 
 The cestui que trust may, instead of a reconveyance, LECTURE 
 require the property to be resold. If he adopts this course, 
 the practice is to put up the estate for auction at the price 
 given by the trustee, together with any sums expended by 
 him for repairs and improvements. If any advance is made, 
 the trustee will not be allowed to have the estate ; if not, 
 he will be held to his bargain. 1 
 
 If the trustee bought the estate in one lot, and the cestivi interest. 
 que trust is desirous of selling it in several lots, he must 
 repay the trustee his purchase-money with interest, and 
 then may sell as he likes. 2 
 
 If the trustee has resold the estate, he must account for 
 any profit with interest. 3 
 
 If a trustee, who has purchased the trust-estate, sells to 
 a purchaser for value without notice, the cestui que trust 
 may charge the trustee, either with the difference between 
 the price for which the trustee gave, and the price at which 
 he sold, 4 or the real value of the estate at the time of sale 5 
 with interest. 6 
 
 Where a sale to a trustee is set aside, the trustee must Costs, 
 pay the costs of the suit. 7 But if there be great delay on 
 the part of the cestui que trust, costs will be refused him, 
 though he succeed in the suit ; 8 and, on the other hand, 
 if the suit be dismissed, not merely because the transaction 
 was not originally impeachable, but merely on account of 
 the great interval of time, the Court may refuse to order 
 the costs of the defendant. 9 
 
 We have now to consider the rights of the cestui que Following 
 trust as against third persons to whom the trust-property t r " st - est *" J 
 
 11 c 11 j re J.-L i *v into hands 
 
 has been wrongfully conveyed. It the person to whom of third 
 the property has been conveyed is a volunteer, that is to 
 
 1 Ex parte Reynolds, 5 Ves., 707 ; Ex parte Hughes, 6 Ves., 617 ; Ex 
 partc Lacey, ib., 625 ; Lister v. Lister, ib., 631 ; Ex parte Bennett, 
 10 Ves.. 381 ; Robinson v. Ridley, 6 Mad., 2. 
 
 2 Ex parte James. 8 Ves.. 351. 
 
 3 Ex parte Reynolds, 5 Ves.. 707 ; Hall r. Hallet, 1 Cox. 134. 
 
 4 Fox r. Mackreth, 2 Cox, 320 ; Hall r. Hallet, 1 Cox, 134 ; Whichcote 
 r. Lawrence. 3 Ves., 740 ; Ex parte Reynolds, 5 Ves., 707 ; Randall v. 
 Errington. 10 Ves.. 422. 
 
 5 Lord Hardwicke r. Vernon, 4 Ves., 416. 
 
 6 Hall v. Hallet, 1 Cox. 139. 
 
 7 Sanderson v. Walker. 13 Ves.. 601 ; Hall v. Hallet, 1 Cox, 141 ; 
 TThichcote v. Lawrence. 3 Ves.. 740 ; Dunbar v. Tredennick, 2 B. and B.. 304. 
 
 8 Lewin. 7th Edn .. 447 ; Attorney-General v. Lord Dudley. G. Coop., 146. 
 
 9 Lewin, 7th Edn., 447, citing Gregory r. Gregory, G. Coop., 200. 
 
292 FOLLOWING TRUST ESTATE. 
 
 LECTURE say, a person who has given no consideration for the con- 
 
 x - veyance, the trust-estate may be followed into his hands, 
 
 whether he had notice of the trust or not, for the Court 
 
 implies notice where no consideration has passed. 1 
 
 Purchasers If the person into whose hands the property has come, 
 
 for value. j )urc hased it for valuable consideration, with notice of the 
 
 trust, he is bound to the same extent and iu the same 
 
 manner as the person from whom he purchased. 2 " If," 
 
 said Lord Hardwicke, " a person will purchase with notice 
 
 of another's rights, his giving a consideration will not 
 
 avail him, for he throws away his money voluntarily, and 
 
 of his own free will." 3 
 
 So, a purchaser will be affected with any incumbrance 
 on the estate if he had notice of it when he purchased, 4 
 or of a lien for unpaid purchase-money. And the assignee 
 of a chose-in-action must take it subject, as we have just 
 seen, to all the equities. 6 
 
 "The rules of this Court," said Malins, Y. C, 7 "are 
 perfectly well settled, and are the rules of honesty and fair 
 dealing, that no party to an illegal or fraudulent contract 
 can derive any benefit from it ; and that all persons who 
 obtain possession of trust-funds, with a knowledge that 
 their title is derived from a breach of trust, will be com- 
 pelled to restore such trust-funds." 
 
 Purchase When a person, after attaining majority, questions any 
 guardian sa ^ e ^ P r operty made by his guardian during his minority, 
 the burden lies on the person who upholds the purchase, 
 not only to show that, under the circumstances of the case, 
 either the guardian had the power to sell, or that the pur- 
 chaser reasonably supposed that he had such power, but 
 
 1 Mansell v. Mansell, 2 P. Wms., 678 ; Saunders . Dehew, 2 Vern., 
 271. 
 
 2 Dunbar v. Tredennick, 2 Ball and B.. 319 ; Adair v. Shaw, 1 Sch. and 
 Lef., 262 ; Mead v. Lord Orrery, 3 Atk.. 238 ; Mackreth v. Syinmons, 
 15 Ves., 350; Mansell v. Mansell, 2 P. Wms., 681 ; Heath v. Crealock, 
 L. R., 10 Chan., 22 ; Mancharji Sorabji Chulla v. Kougseoo, 6 Bom. 
 H. C. R.. 0. C.. 59 ; Dayal Jairaj i: Jivraj Ratansi, I. L. R., 1 Bomb., 237 ; 
 Bego Jan v. Luteefun, 5 W. R., 120. 
 
 3 Mead v. Lord Orrery, 3 Atk., 238. 
 
 4 Kennedy r. Daly, 1 Sch. and Lef.. 355 ; Crofton v. Ormsby. 2 Sch. and 
 Lef., 583 ; Daniels v. Davison. 16 Ves., 249 ; Mancharji Sorabji Chulla 
 v. Kongseoo, 6 Bom. II. C. R , O. C., 59. 
 
 s Mackreth v. Symmons, 15 Ves., 329; Dunbar v. Tredennick, 2 B. and 
 B., 320; Yellappa-bin-Basappa v. Mantappa-bin-Basappa, 3 Bom. H, C., 
 A. C.. 102. 
 
 See further, Lewin. 7th Edn.. 732. 
 
 ' Gray r. Lewis, L. R., 8 Eq.. :. 1:'. 
 
NOTICE. 293 
 
 further, that the whole transaction as regards the purchaser's LECTUBE 
 part in it was bond fide. When either the person who 
 sells labours under a disqualification, or the purchaser 
 stands in a fiduciary relation to the owner of the property, 
 the bona fides of the dealing cannot be presumed, but 
 must be made out by the purchaser. 1 
 
 The notice need not be express, but may be construe- Notice of 
 tive. The principle of constructive notice is, that a man tr 
 shall be deemed to know such matters affecting the pro- 
 perty which he purchases,' as would have come to his 
 knowledge if he had made proper inquiries. Where one of 
 three trustees, who Avas also the solicitor of the purchaser, 
 executed an assignment of leasehold property held jointly 
 by them to a purchaser, and forged the signatures of his 
 two co-trustees, and also the requisite assent of the cestui 
 que trust to the sale, it was held, that the circumstances 
 attending the transaction were sufficient to affect the pur- 
 chaser with notice of some trust, if not the actual nature 
 of it ; and that he had constructive notice of the trust 
 through the knowledge of his solicitor. 2 
 
 If, however, the trust-property is conveyed to a pur- ^"valu-* 1 
 chaser for valuable consideration without notice of the able consi- 
 trust, the purchaser is entitled to hold the property dis- ^j^ut 
 charged of the trust, leaving the cestuis que trustent to their notice, 
 remedy against the trustees. 3 " From a purchaser for 
 value without notice," said James, L. J., 4 " the Court takes 
 away nothing which that purchaser has honestly acquired. 
 If the purchaser has got possession of a piece of parch- 
 ment or of propert} 7 , or of anything else which he thought 
 he was getting honestly, this Court, in my opinion, has 
 no right to interfere with him." 
 
 A purchaser without notice from a purchaser with notice Purchaser 
 is not liable. He is in the same position as if he had ^oticefrom 
 himself originally purchased without notice, and the fact purchaser 
 that the sale to him was fraudulent does not affect him. 5 Purchaser*' 
 
 Nor is a purchaser with notice from a purchaser without with notice 
 
 from pur- 
 chaser 
 
 ' Roop Xarain Singh v. Gugadhur Pershad Narain, 9 W. R., 297. 
 
 2 Boursot r. Savage. L. R.. 2 Eq., 134. 
 
 3 Mansell r. Mansell, 2 P. Wins.. 681 ; Durbar v. Tredennick. 2 Ball 
 & B.. 318 ; Jones v. Powles. 3 M. & K, 581 ; Payne r. Compton, 2 Y. & C. 
 C. C.. -t57 ; Thorndike v. Hunt, 3 DeG. & J., 563. 
 
 4 Heath v. Crealock. L. R,. 10 Ch.. 33. 
 
 5 Ferrars r. Cherry. 2 Vern.. 38i ; Mertins r. Jolliffe, Ambl., 313 ; 
 Salusbury v. Bagott, 2 Swanst., 606. 
 
294 
 
 FOLLOWING CONVERTED PROPERTY. 
 
 Fraud. 
 
 Doubtful 
 equity. 
 
 LECTURE notice liable, the reason being, Lord Hardwicke says, to 
 x - prevent stagnation of property. 1 
 
 If a purchaser, however honest, on the completion of his 
 purchase, acquires a defective title, the Court will not 
 allow that defective title to be strengthened, either by his 
 own fraud, or by the fraud of any other person. 2 
 
 In some cases it may be doubtful what construction 
 would be put on the instrument of trust, and the pur- 
 chaser may take with a doubtful equity. The question 
 may then arise, how far the purchaser would be bound. 
 Upon this point Lord Leonards said, that where, upon 
 the whole articles, it is plain what construction the Court 
 would have put upon them had it been called upon to 
 execute them at the time they were made, they should be 
 enforced, however difficult the construction might be, even 
 as against a purchaser with notice, but not after a lapse 
 of time, where there was anything so equivocal or ambi- 
 guous in them as to render it doubtful how they ought 
 to be effectuated. 3 
 
 Following Where a trustee has wrongfully disposed of trust-pro- 
 trus^-pro- P er ty> the cestui que trust may follow the purchase-money, 
 perty. or any other property that has been substituted in the 
 place of the trust-estate, in the hands of the trustee or 
 his representatives ; and such substituted property will be 
 impressed with the same trusts as the original trust-pro- 
 perty was subject to. 4 Thus, if a trustee expends the 
 whole of the trust-money in the purchase of land, the 
 cestui que trust will be entitled to the land. 5 
 
 Proof of The cestui que trust must, of course, prove that the land 
 
 purchase was purchased with the trust-moneys. This may be proved, 
 
 money? 13 either by direct evidence, as where trust-money was paid 
 
 to a trustee by a cheque, which was next day paid over by 
 
 him in part-payment for the estate, 6 or by mere parol 
 
 evidence of declarations by the trustees ; but these, in the 
 
 1 Mertins v. Jolliffe. Ambl., 313 ; Salusbury v. Bagott. 2 Swanst , 606. 
 
 2 Heath v. Crealock, L. R., 10 Ch.. 33, per James, L. J. As to getting 
 in the legal estate, see Lewin, 7th Edn., 729. 
 
 3 Thompson v Simpson. 1 Dr. & War., 491. 
 
 4 Taylor r. Plummer, 3 M. & S.. 575 ; Rani Kattama Nachiar v. 
 Bothagurusami Tevar, 6 Mad. H. C. R., 293 ; Greender Chunder Ghose 
 T. Mackintosh, I. L. R., 4 Calc.. 908. 
 
 5 Trench v. Harrison, 17 Sim., Ill ; Taylor v. Plummer. 3 M. & S., 575. 
 
 6 Price v. Blackmore. G Beav., 507 ; Ex part e Chad wick, 15 Jur., 597; 
 Mathias r. Mathias, 3 Sm. & Giff., 552. 
 
FOLLOWING CONVERTED PROPERTY. 295 
 
 absence of corroborating circumstances, will be received LECTURE 
 with great caution. 1 The presumption, however, is, that 
 a purchase made by a trustee, whose duty is so to invest 
 trust-money, has been made in execution of the trust. 2 
 And where a trustee paid in trust-moneys (applicable to 
 be invested in the purchase of real estate), and moneys 
 of his own, to his general account at his bankers, and 
 then bought real estate, and paid for it by a cheque on his 
 bankers, the Court the purchase having proved a bene- 
 ficial one decided that the cestuis que trustent were 
 entitled to hold, that such payment was made out of that 
 part of the moneys standing to the general account which 
 it was proper so to employ, i.e., the trust-moneys. 3 
 
 The mere fact that a trustee has trust-money in his 
 hands when he makes a purchase, is not sufficient to 
 attach the trust to lands bought by him. 4 The fact that a 
 trustee for purchase of lands has purchased lands, does not 
 necessarily raise the presumption that he invested the trust- 
 money in the purchase. Such a presumption may, however, 
 be raised when the sum paid is the precise, or nearly precise, 
 amount of trust-money. 5 
 
 Where the trust-property has been converted into Money, 
 money, currency notes, or negotiable instruments, greater notes '. . r , 
 
 T/ 1* M. j.1. i i f ii negotiable 
 
 dimculty arises in tracing it in the hands ot the trustee instru- 
 or his representatives. It was at one time said that such 
 property could not be traced, because it had no ' earmark.' 
 Bub in Miller v. Race, 6 Lord Mansfield said : " It has 
 been quaintly said ' that the reason why money cannot 
 be followed is, because it has no earmark;' but this is 
 not true. The true reason is, upon account of the 
 currency of it, it cannot be recovered after it has 
 passed in currency. So, in case of money stolen, the true 
 owner cannot recover it, after it has been paid away 
 fairly and honestly upon a valuable and bond fide con- 
 sideration ; but before money has passed in currency, an 
 action may be brought for the money itself. There was a 
 
 1 Lench v. Lench. 10 Ves.. 519. 
 
 2 Trench r. Harrison, 17 Sm., 111. 
 
 a Manningford v . Toleman. 1 Coll.. 670 ; see Dart V. & P.. 5th Edn., 939. 
 
 4 Lewin, 7th Edn., 765, citing Sealy v. Stawell, 3 I. R.. Eq., 326. 
 
 5 Price v. Blakemore, 6 Beav., 507 ; Mathias v Mathias. 3 Sm. & G., 
 552 ; Perry v. Phelips, 4 Ves., 108 : see also Denton v. Davies, 18 Ves., 
 499 ; Lewis v. Madocks, 8 Ves., 150; 17 Ves., 48. 
 
 4 1 Burr., 452. 
 
296 FOLLOWING CONVERTED PROPERTY. 
 
 LECTURE case in 1 G., 1, at the sittings Thomas v. Whip before 
 x - Lord Macclesfield, which was an action upon assumpsit by 
 an administrator against the defendant for money had and 
 received to his use. The defendant was nurse to the 
 intestate during his sickness ; and being alone, conveyed 
 away the money. And Lord Macclesfield held, that the 
 action lay. Now this must be esteemed a finding at least. 
 Apply this to a case of a bank-note, an action may lie 
 against the finder, it is true ; but not after it has been paid 
 away in currency." " It makes no difference in reason or 
 law," said Lord Ellenborough, C. J., 1 " into what other form, 
 different from the original, the change may have been 
 made, whether it be into that of promissory notes for the 
 security of the money which was produced by the sale of 
 the goods of the principal, or into other merchandize, for 
 the product of, or substitute for, the original thing still 
 follows the nature of the thing itself, as long as it can be 
 ascertained to be such, and the right only ceases when the 
 means of ascertainment fail, which is the case when the 
 subject is turned into money, and mixed anil confounded 
 in a general mass of the same description. The difficulty 
 which arises in such a case is a difficulty of fact and not 
 of law, and the dictum that money has 110 ear-mark must 
 be understood in the same way, i. e., as predicated only of 
 an undivided and undistinguishable mass of current money. 
 But money in a bag, or otherwise kept apart from other 
 moneys, guineas, or other coin marked (if the fact were so) 
 for the purpose of being distinguished, are so far earmarked 
 as to fall within the rule on this subject, which applies 
 to every other description of personal property whilst it 
 remains in the hand of the factor or his general legal re- 
 presentatives." 
 
 These cases show, that money and notes, if not paid 
 away to a bond fide holder, can be followed into the hands 
 of a trustee. And it has been decided that the same prin- 
 ciple applies to bills of exchange and other negotiable 
 instruments. 2 And they may be followed when the trans- 
 ferree had express notice of the trust. 3 The difference 
 between money and notes and negotiable instruments is, 
 that the particular coin cannot be distinguished, but notes 
 
 1 Taylor v. Plumer. 3 M. and S., ."~>. 
 
 2 Frith v. Cartland. 2 H. and M., 417. 
 
 3 Joy i: Campbell, 1 Sch. and Lef., 3io. 
 
TRUST FUND MIXED WITH TRUSTEE'S MOXEY. 297 
 
 and negotiable instruments are distinguishable, as they LECTURE 
 have distinct marks and numbers on them. 1 
 
 Trust-funds may be followed, although the trustee has Trust-fund 
 mixed them with his own money, as by paying them into mixed with 
 his own account at a bank. If the trustee has employed money. 8 
 the trust-money, together with his own money, in the pur- 
 chase of an estate, the cestui que trust will have a lien over 
 the purchased estate for the whole amount of the fund 
 misapplied, though no particular part of the estate was 
 purchased with the trust-money only. 2 The guiding prin- 
 ciple in all cases of this class is, that a trustee cannot 
 assert a title of his own to trust-property. If he destroys 
 a trust-fuud by dissipating it altogether, there remains 
 nothing to be the subject of a trust. But so long as the 
 trust-property can be traced and followed into other pro- 
 perty into which it has been converted, that remains sub- 
 ject to the trust. A second principle is, that if a man 
 mixes trust-funds with his own, the whole will be treated 
 as the trust-property, except so far as he may be able to 
 distinguish what is his own. 3 
 
 The doctrines upon which a Court of Equity acts in fol- Penneiir. 
 lowing trust-moneys were very fully discussed in the case Deffell< 
 of Pennell v. Dejfell.* There a trustee paid various trust- 
 funds to his credit at two banks, and the question was, how 
 far the moneys at his credit belonged specifically to the 
 trust. Knight Bruce, L. J., said : " Let us suppose that the 
 several sums for which the trustee was accountable at his 
 death had been (that is to say, that the very coins and the 
 very notes received by him on account of the trusts res- 
 pectively had been) placed by him together in a particular 
 repository, such as a chest, mixed confusedly together 
 as among themselves ; but in a state of clear and distinct 
 separation from everything else, and had so remained at 
 his death. It is, I apprehend, certain, that, after his death, 
 the coins and notes thus circumstanced would not have 
 formed part of his general assets, would not have been 
 permitted so to be used, but would have been specifically 
 applicable to the purposes of the trusts on account of 
 
 1 Ford v. Hopkins, 1 Salk.. 283. 
 
 * Lane v. Dighton, Arab.. 409 ; Lewis r. Madocks. 17 Ves., 57 ; Price v. 
 Blakemore. 6 Beav., 507 ; Ernest v. Croysdill, 2 DeG. F. and J., 175 ; 
 Nogender Chunder Ghose r. Greender Chunder Ghose, Boul., 389. 
 
 * Frith f. Cartland, 2 H. and M., 420, per Wood, V. C. 
 4 4 D. M. G., 372. 
 
 38 
 
298 PENNELL V. DEFFELL. 
 
 LECTURE which he had received them. Suppose the case that I 
 x - have just suggested to be varied only by the fact, that in 
 the same chest, with these coins and notes, the trustee had 
 placed moue} r of his own (in every sense his own) of a 
 known amount, had never taken it out again, but had 
 so mixed and blended it with the rest of the contents of 
 the chest, that the particular coins or notes of which this 
 money of his own consisted, could not be pointed out 
 could not be identified, what difference would that make ? 
 None, as I apprehend, except (if it is an exception) that 
 his executor would possibly be entitled to receive from the 
 contents of the repository an amount equal to the ascer- 
 tained amount of the mone} 7 " in every sense his own, so 
 mixed by himself with the other money. But not in 
 either case, as I conceive, would the blending together of 
 the trust-moneys, however confusedly, be of any moment 
 as between the various cestuis que trustent on the one 
 hand, and the executors as representing the general credi- 
 tors 011 the other. 
 
 " Let it be imagined that, in the second case supposed, the 
 trustee, after mixing the known amount of money of his 
 own with the trust-moneys, had taken from the repository 
 a sum for his own private purposes, and it could not be 
 ascertained whether in fact the specific coins and notes 
 forming it included or consisted of those or any of those 
 which were, in every sense, his own specifically, what 
 would be the consequence ? I apprehend that, in equity at 
 least, if not at law also, what he took would be solely or 
 primarily ascribed to those contents of the repository which 
 were in every sense his own. He would, in the absence of 
 evidence that he intended a wrong, be deemed to have 
 intended and done what was right ; and if the act could 
 not in that way be wholly justified, it would be deemed to 
 have been just to the utmost amount possible. If these 
 propositions, which I believe to be founded on principle, 
 and supported by authorities, are true, can the plaintiff be 
 wholly wrong in his actual contention? I apprehend not 
 When a trustee pays trust-money into a 
 bank to his credit, the account being a simple account 
 with himself, not marked or distinguished in any other 
 manner, the debt thus constituted from the bank to 
 him is one which, as long as it remains due, belongs 
 specifically to the trust as much and as effectually as the 
 money so paid would have done, had it specifically been 
 
PEN NELL V. DEFFELL. 299 
 
 placed by the trustee in a particular repository and so LECTURE 
 remained, that is to say, if the specific debt shall be 
 claimed on behalf of the cestuis que trustent, it must be 
 deemed specifically theirs, as between the trustee and his 
 executors and the general creditors after his death on the 
 other, whether the cestuis que trustent are bound to take 
 to the debt whether the deposit was a breach of trust, is 
 a different question. 
 
 " This state of things would not, I apprehend, be varied by 
 the circumstance of the bank holding also for the trustee, 
 or owing also to him money in every sense his own." 
 
 And Turner, L. J., said : " It is, I apprehend, an un- 
 doubted principle of this Court, that, as between ceslui que 
 trust and trustee, and all parties claiming under the 
 trustee otherwise than by purchase for valuable considera- 
 tion without notice, all property belonging to a trust, how- 
 ever much it may be changed or altered in its nature or 
 character, and all the fruit of such property, whether in 
 its original or in its altered state, continues to be subject to, 
 or affected by, the trust. 
 
 "This principle cannot be better illustrated than by refer- 
 ring to a case of familiar, almost daily occurrence, the case 
 of trust-moneys emploj'ed in trade. An executor of a 
 deceased partner continues his capital in the trade with the 
 concurrence of the surviving partners, and carries on the 
 trade with them. The very capital itself may consist only 
 of the balance which at the death of the partner was due 
 to him on the result of the partnership account. That 
 capital may have no existence lut in the stock-in-trade and 
 debts of the partnership. The stock-in-trade may undergo 
 a continual course of change and fluctuation, and yet this 
 Court follows the trust capital throughout all its ramifica- 
 tions, and gives to the beneficiaries of the deceased part- 
 ner's estate the fruits derived from that capital so conti- 
 nually altered and changed." His Lordship then referred 
 to the supposed impossibility of ascertaining what por- 
 tions of the balances at the banker's belonged to the trust, 
 and what portion to the estate of the trustee, and continued : 
 " In order to test this question, suppose a trustee pays 
 into a bank moneys belonging to his trust to an account 
 not marked or distinguished as a trust-account, and pays 
 in no other moneys : could it for one moment be denied that 
 the moneys, standing to the account of the debt due from 
 the banker's arising from the moneys so paid in, would 
 
300 RE HALLETT'S ESTATE. 
 
 LECTURE belong to the trust and not to the private estate of the 
 x< trustee ? Then suppose the trustee subsequently pays iu 
 moneys of his own, not belonging to the trust, to the same 
 account: would the character of the moneys which he 
 had before paid in, if the debt which had before accrued, 
 be altered ? Again, suppose the trustee, instead of sub- 
 sequently paying moneys into the bank, draws out part of 
 the trust-moneys which lie has before paid in : would the 
 remainder of those moneys and of the debt contracted in 
 respect of them lose their trust character ? Then, can the 
 circumstance of the account consisting of a continued 
 series of moneys paid in and drawn out alter the principle ? 
 It may, indeed, increase the difficulty of ascertaining what 
 belongs to the trust, but I can see no possible ground on 
 which it can affect the principle." 
 
 Re Hal- In the recent case of In re Hallett's Estate, Knatchbull 
 v. Hallett, 1 trust-money had been paid in by a trustee 
 to his own account at his bankers, and the question 
 was, whether the rule iu Clayton's case, 2 that the first 
 drawings out by the trustee must be attributed to 
 
 O w 
 
 the first payments, applied to the case of a trustee 
 mixing his moneys with the trust-funds; and it was 
 held, that it did not, the Court dissenting to this extent 
 from Pennell v. Deffell. 3 " The modern doctrine of 
 equity," said Jessel, M. R, " as regards property disposed 
 of by persons in a fiduciary position, is a very clear and 
 well-established doctrine. You can, if the sale was right- 
 ful, take the proceeds of the sale, if you can identify them. 
 There is no distinction, therefore, between a rightful and 
 a wrongful disposition of the property so far as regards 
 the right of the beneficial owner to follow the proceeds. 
 The proceeds may have been invested together with money 
 belonging to the person in a fiduciary position in a pur- 
 chase. He may have bought land with it, for instance, or 
 he may have bought chattels with it. Now what is the 
 position of the beneficial owner as regards such purchases ? 
 I will, first of all, take his position when the purchase is 
 clearly made with what I will call, for shortness, the trust- 
 money, although it is not confined, as I will show present- 
 ly, to express trusts. In that case, according to the now 
 well-established doctrine of equity, the beneficial owner 
 
 1 I. R., 13 Ch. Div., (596. \ Mer., 672. 
 
 * i D. M. G., 372. 
 
RE HALLETT'S ESTATE. 301 
 
 has a right to elect either to take the property purchased, LECTCBB 
 or to hold it as a security for the amount of the trust- 
 money laid out in the purchase ; or, as we generally express 
 it, he is entitled at his election either to take the property, 
 or to have a charge on the property for the amount of the 
 trust-money. But in the second case, where a trustee has 
 mixed the money with his own, there is this distinction, 
 that the cestui que trust, or beneficial owner, can no longer 
 elect to take the property, because it is no longer bought 
 with the trust-money simply and purely, but with a mixed 
 fund. He is, however, still entitled to a charge on the 
 property purchased for the amount of the trust-money 
 laid out in the purchase ; and the charge is quite independ- 
 ent of the fact of the amount laid out by the trustee. The 
 moment you get a substantial portion of it furnished by 
 the trustee, using the word ' trustee ' in the sense I have 
 mentioned, as including all persons in a fiduciary relation, 
 the right to the charge follows." His Lordship then stated 
 that there was no distinction between an express trustee, an 
 agent, ;i bailee, or a collector of rents, or anybody else in 
 a fiduciary position ; and continued : "Now that being the 
 established doctrine of equity on this point, I will take 
 the case of the pure bailee. If the bailee sells the goods 
 bailed, the bailor can in equity follow the proceeds, and 
 can follow the proceeds wherever they can be distinguished, 
 either being actually kept separate, or being mixed up 
 with other moneys. I have only to advert to one other 
 poii-it, and that is this supposing, instead of being invest- 
 ed in the purchase of land or goods, the money were sim- 
 ply mixed with other moneys of the trustee, using the 
 term again in its full sense as including every person in a 
 fiduciary relation, does it make any difference according to 
 the modern doctrine of equity ? I say none. It would be 
 very remarkable if it were to do so. Supposing the trust- 
 money was 1,000 sovereigns, and the trustee put them into a 
 bag, and by mistake or otherwise dropped a sovereign of his 
 own into the ba.g, could anybody suppose that a Judge in 
 equity would find any difficulty in saying that the cestui 
 que trust has a right to take 1,000 sovereigns out of that 
 bag ? I do not like to call it a charge of 1,000 sovereigns on 
 the 1,001 sovereigns, but that is the effect of it. I have no 
 doubt of it. It would make no difference if, instead of one 
 sovereign, it was another 1,000 sovereigns; but if instead 
 of putting it into his bag, or after putting it into his bag 
 
302 RE HALLETT'S ESTATE. 
 
 LECTURE he carries the bag to his bankers, what then ? According 
 x - to law the bankers are his debtors for the total amount ; 
 but if you lend the trust-money to a third person, you 
 can follow it. If, in the case supposed, the trustee had lent 
 the 1,000 to a man without security, you could follow 
 the debt and take it from the debtor. If he lent it on a 
 promissory note, you could take the promissory note ; or 
 the bond, if it were a bond. If, instead of lending the 
 whole amount in one sum simply, he had added a sovereign, 
 or had added 500 of his own to the 1,000, the only 
 difference is this, that, instead of taking the bond or the 
 promissory note, the cestui que trust would have a charge 
 for the amount of the trust-money on the bond or promis- 
 sory note. So it would be on the simple contract debt ; 
 that is, if the debt were of such a nature as that, between 
 the creditor and debtor, you could not sever the debt into 
 two, so as to show what parb was trust-money, then the 
 cestui que trust would have a right to a charge upon the 
 whole." And Thesiger, L. J., said : " The principle may be 
 stated, as it appears to me, in the form of a very simple, 
 though at the same time very wide and general, proposi- 
 tion. I would state that proposition in these terms, 
 namely, that wherever a specific chattel is intrusted by one 
 man to another, either for the purposes of safe custody or 
 for the purpose of being disposed of for the benefit of the 
 person intrusting the chattel, then either the chattel itself, 
 or the proceeds of the chattel, whether the chattel has 
 been rightfully or wrongfully disposed of, may be followed 
 at any time, although either the chattel itself or the 
 money constituting the proceeds of that chattel, may have 
 been mixed and confounded in a mass of the like material." 
 Upon the question as to whether the principle of Clayton's 
 case l could be applied to the case of trust-moneys, Jessel, 
 M. K, said : " Nothing can be better settled either in our 
 own law, or, I suppose, the law of all civilized countries, 
 than this, that where a man does an act which may be 
 rightfully performed, he cannot say that that act was inten- 
 tionally and in fact done wrongly. . . . When we come 
 to apply that principle to the case of a trustee who has 
 blended trust-moneys with his own, it seems to me per- 
 fectly plain that he cannot be heard to say that he took 
 the trust-money when he had a right to take away his own 
 
 1 Her., 572. 
 
RE HALLETT'S ESTATE. 303 
 
 money. The simplest case put is the mingling of trust- LECTURE 
 moneys in a bag with money of the trustee's own. Sup- 
 pose he has a hundred sovereigns in a bag, and he adds 
 to them another hundred sovereigns of his own, so that 
 they cannot be distinguished, and the next day he draws 
 out for his own purposes 100, is it tolerable for any one 
 to allege that what he drew out was the first 100, the 
 trust-money, and that he misappropriated it, and left his 
 own 100 in the bag? It is obvious that he must have 
 taken away that which he had a right to take away, his 
 own 100. What difference does it make if, instead of 
 being in a bag, he deposits it with his banker, and then 
 pays in other money of his own, and draws out some 
 money for his own purposes ? Could he say that he had 
 actually drawn out anything but his own money ? His 
 money was there, and he had a right to draw it out, and 
 why should the natural act of simply drawing out the 
 money be attributed to anything except to his ownership 
 of money which was at his bankers." And Baggallay, 
 L. J., agreed with Jessell, M. R. But Thesiger, L. J., while 
 agreeing with the reasoning of the Master of the Rolls, 
 felt himself bound by Pennell v. Deffell 1 as being the 
 judgment of a Court of co-ordinate jurisdiction. 
 
 If the trust-fund has been employed together with money Lien, 
 belonging to the trustee in the purchase of land, the cestui 
 que trust will have a lien on the whole laud for the trust- 
 money and interest. 2 But if the trust-fund only has been so 
 employed, the cestui que trust has a right to the land itself. 3 
 
 It is a well settled principle of equity that time is no Limitation 
 bar to a claim by a cestui que trust against his trustee in 
 the case of an express trust. 4 Nor is it a bar against a 
 purchaser with notice, 5 but it is otherwise in the case of 
 a constructive trust. 6 Thus, time was held to be a bar as 
 between a cestui que trust and a person who had become 
 possessed of the trust-estate even by. reason of the breach 
 of trust on the part of the trustee. 7 
 
 1 4 D. M. G., 372. 
 
 8 Scales v. Baker. 28 Beav.. 91 ; Hopper v. Conyers, L. R., 2 Eq., 649. 
 
 3 Trench v. Harrison, 17 Sim.. Ill ; see ante, p. 294. 
 
 4 Chalmer v. Bradley, 1 Jac. & W., 51 ; see M. S. Ameerun v. M. S. 
 Hyatun. 16 S. D. A., 443. 
 
 5 Luteefun r. Beg-o Jan. 5 "W. R., 120. 
 Beckford v. Wade. 17 Yes., 97. 
 
 1 Bonney -v. Ridgard, 1 Cox, 145 ; Townsend v. Townsend, 1 Bro. C. 
 C., 550 ; Andrew r. Wrigley, 4 Bro. C. C., 125 ; Beckford v. Wade, 17 Yes., 97. 
 
304 LIMITATION. 
 
 LECTURE Section 10 of Act XV of 1877 provides, that " no suit 
 x - against a person in whom property has become vested in 
 trust for any specific purpose, or against his legal repre- 
 sentatives or assigns (not being assigns for valuable consi- 
 deration), for the purpose of following in his or their hands, 
 such property, shall be barred by any length of time." 
 This section is substantially the same as s. 10 of Act IX 
 of 1871, which has been construed to mean, that when a 
 trust has been created expressly for some specific purpose 
 or object, and property has become vested in a trustee upon 
 such trust (either from such person having been originally 
 named as trustee, or having become so subsequently by 
 operation of law), the person or persons who for the time 
 being may be beneficially interested in that trust may 
 bring a suit against such trustee to enforce that trust at 
 any distance of time without being barred by limitation; 
 and further, that the language of the section is specially 
 framed so as to exclude implied trusts, or such trusts as 
 the law would infer merely from the existence of particu- 
 lar facts or fiduciary relations. 1 And in Greender Chunder 
 Ghose v. Mackintosh, 2 it was held by Garth, C. J., that 
 the words "in trust for a specific purpose " are intended 
 to apply to trusts created for some defined or particular 
 purpose or object, as distinguished from trusts of a general 
 nature, such as the law impresses upon executors and 
 others who hold fiduciary positions ; and by White, J., 
 that those words are used in a restrictive sense, and limit 
 the character and nature of the trust attaching to the pro- 
 perty which is sought to be followed, and that the phrase 
 is a compendious form of expression for trusts of the 
 nature and character mentioned in arts. 133 and 134 of 
 sched. ii to the Act, namely, such as attach to property 
 conveyed in trust, deposited, pawned or mortgaged. 
 
 Where a clause of the ivajib-ul-arz of a village stated in 
 general terms that absconders from such village should 
 receive back their property on their return, and certain 
 persons who absconded from such village before such wajib- 
 ul-arz was framed, sued to enforce such clause against the 
 purchaser of their property from the co-sharer who had 
 taken possession of it on their absconding, and who was 
 no party to such wajib-ul-arz, alleging that their property 
 
 1 Kherodemoney Dossee v. Doorgamoney Dossee, I. L. R., 4 Calc., 455. 
 * Ibid, 897. 
 
LIMITATION. 305 
 
 had vested in such co-sharer in trust for them, it was held, LECTURE 
 that, assuming the trust to be established, as the purchaser 
 had purchased in good faith for value and without notice 
 of the trust, and was not the representative of such co- 
 sharer within the meaning of s. 10 of Act IX of 1871, 
 and had been more than twelve years in possession, the 
 suit was barred by limitation. 1 
 
 Where property has been placed in the hands of another Accrual 
 by way of trust, no cause of action arises to the owner j |V^ 
 until there has been a demand by him for the restoration 
 of the property and a refusal by the trustee to give up the 
 property. The period of limitation begins to run from the 
 date of such refusal or distinct assertion of adverse right, 
 and not from the date the trustee enters into possession. 2 
 
 A suit to make good out of the general estate of a 
 deceased trustee the loss occasioned by a breach of trust, must 
 be brought within three years from the date of the trustee's 
 death, or if the loss has not then resulted, the date of the 
 loss. 3 
 
 Suits to recover possession of moveable or immoveable 
 property conveyed or bequeathed in trust, and afterwards 
 purchased from the trustee for a valuable consideration, 
 must be brought within twelve years from the date of 
 purchase. 4 
 
 No time will cover a fraud so long as it remains conceal- Fraud. 
 ed ; for, until discovery (or at all events until the fraud 
 might with reasonable diligence have been discovered), the 
 title to avoid the transaction does not properly aiise. 
 But after discovery, the defendant may avail himself of 
 the Statute, for he has a right to say, " You shall not 
 bring this matter under discussion at this distance of time ; 
 it is entirely your own neglect that you did not do so 
 within the time limited by the Statute." 5 
 
 Section 18 of Act XV of 1877 provides that "when 
 any person having a right to institute a suit or make an 
 application has, by means of fraud, been kept from the 
 knowledge of such right or of the title on which it is 
 founded, or where any document necessary to establish 
 
 1 Piarey Lall v. Saliga, I. L. K., 2 All., 394 ; see also Kainal Singh v. 
 Batul Fatima, ib.. 460. 
 
 2 Rakhaldas Madak r. Madhu Sudan Madak, 3 B. L. R., A. C.. 409. 
 1 Act XV of 1877. sched ii, art. 98. 
 
 4 Act XV of 1877, sched. ii. arts. 133. 134. 
 
 * Lewiii, 7th Edii., 739 ; see DurgaPrasad r. Asa Rain I. L. R.,2 All., 361- 
 
 39 
 
306 PURCHASE FROM MANAGER OF HINDU FAMILY. 
 
 LECTUBE such right has been fraudulently concealed from him, the 
 x - time limited for instituting a suit or making an application 
 (a) against the person guilty of the fraud or accessory there- 
 to, or (6) against any person claiming through him other- 
 wise than in good faith and for a valuable consideration, 
 shall be computed from the time when the fraud first 
 became known to the person injuriously affected thereby, or, 
 in the case of the concealed document, when he first had 
 the means of producing it, or compelling its production." 
 Purchase ^ person who lends money to, or purchases from, the 
 manager manager of a joint Hindu family governed by the Mitak- 
 of joint shara law, is bound to enquire into the necessity for the 
 family. loan or sale. 1 The leading case on this point is Hunoo- 
 manPersaudPanday v. Al.S. Babooee Munraj Koomveree. 2 
 Their Lordships of the Privy Council say : " The power of 
 the manager for an infant heir to charge an estate not his 
 own, is, under the Hindu law, a limited and qualified power. 
 It can only be exercised rightly in a case of need, or for 
 the benefit of the estate. But where, in the particular 
 instance, the charge is one that a prudent owner would make 
 in order to benefit the estate, the bond fide lender is not 
 affected by the precedent mismanagement of the estate. 
 The actual pressure on the estate, the danger to be averted, 
 or the benefit to be conferred upon it in the particular 
 instance, is the thing to be regarded. But of course, if that 
 danger arises, or has arisen, from any misconduct to which 
 the lender is or has been a party, he cannot take advantage 
 of his own wrong to support a charge in his own favour 
 against the heir, grounded on a necessity which his wrong 
 has helped to cause. Therefore the lender in this case, 
 unless he is shown to have acted mala fide, will not be 
 affected, though it be shown that, with better management, 
 the estate might have been kept free from debt. Their 
 Lordships think that the lender is bound to inquire into 
 the necessities for the loan, and to satisfy himself, as well as 
 he can, with reference to the parties with whom he is deal- 
 ing, that the manager is acting in the particular instance 
 for the benefit of the estate. But they think that if he 
 does so inquire, and acts honestly, the real existence of an 
 alleged, sufficient, and reasonably credited necessity is not a 
 condition precedent to the validity of his charge ; and they 
 
 1 M. S. Nowruttun Koer v. Baboo Gouree Dutt Siugh. G W. R., 193. 
 - (5 Moo. I. A., 393. 
 
PURCHASE FROM MANAGER OF HINDU FAMILY. 307 
 
 do not think that, under such circumstances, he is bound LECTURE 
 to see to the application of the money. It is obvious 
 that money to be secured on any estate is likely to be 
 obtained on easier terms than a loan which rests on mere 
 personal security ; and that, therefore, the mere creation of 
 a charge securing a proper debt cannot be viewed as impro- 
 per management ; the purposes for which a loan is wanted 
 are often future as respects the actual application, and a 
 lender can rarely have, unless he enters on the management, 
 the means of controlling and rightly directing the actual 
 application. Their Lordships do not think that a bond 
 fide creditor should suffer when he has acted honestly and 
 with due caution, but is himself deceived." 
 
 The position of a shebait of a debutter estate is analo- Position of 
 gous to that of a manager of an infant heir, and the fore- shebait - 
 going principles apply to the case of a purchaser from 
 him. 
 
 He who sets up a charge upon a minor's estate, created Duty of 
 in his favour l>y the guardian, is bound to show, at least, P Uf c has er. 
 that when the charge was so created, there was reasonable 
 ground for believing that the transaction was for the 
 benefit of the estate. 2 It is sufficient for the purchaser 
 or lender to be satisfied of the fact of necessity ; he need 
 not inquire into its causes. 3 It is only necessary for him 
 to establish that he made bond fide enquiry into the matter, 
 and was in that inquiry reasonably led to suppose that the 
 necessity did exist.* 
 
 When a sale is set aside, the plaintiff can only get pos- Terms on 
 session on repa3 7 ment of so much of the purchase-money wlllchsa!e 
 as has been applied towards the liquidation of debts. 5 
 
 It is the duty of the manager to pay off debts by Duty of 
 strict economy if possible, and not to sell the property, manager, 
 because it is the easier mode of clearing the estate. 6 A sale 
 of family property made by a Hindu father living under 
 the Mitakshara law, merely to enable him to redeem a 
 mortgage, the term of which has not nearly expired, is 
 
 1 Konwar Doorganath Roy v. Ram Chunder Sen, I. L. R., 2 Calc., 341. 
 
 2 Lalla Bunseedhur v. Kooiiwur Bindeseree Dutt Singh, 10 Moo. 
 I. A.. 461 ; Syud Tasouwar All r. Koonj Beharee Lai, 3 N. W. P., 10. 
 
 3 Mohabeer Kooer r. Joobha Singh. 1(3 W. R., 221 ; Sheoraj Kooer v, 
 Nukcbedee Lall. 14 W. R.. 72. 
 
 4 Sooreudro Pershad Dobey i: Nundun Misser. 21 W. R., 196. 
 
 5 Muthoora Koonwaree v. Bootun Singh, 13 W. R., 30 ; see Koonwar 
 Door^anath Roy r. Ram Chunder Sen, I. L. R., 2 Calc., 341. 
 
 . M. S. Bukshun r. M. S. Doolhin, 12 W. R., 337. 
 
308 NECESSITY FOR SALE. 
 
 LECTURE not made under such pressing legal necessity as would 
 prevent his son from suing to set it aside if made without 
 the sou's acquiescence. 
 
 What is Want of acquiescence on the son's part is sufficient to 
 
 necessity, make the sale by the father void in the absence of legal 
 necessity. It is not necessary that the sale by the father 
 should be wasteful, it might even be advantageous. 1 A 
 sale to pay debts and maintain the family is good,' 2 so are 
 sales to defray Government revenue or to defray funeral or 
 marriage ceremonies. 3 Where the Court has expressly 
 found the existence of debts, and that the sale of ances- 
 tral property was a bond fide one, the circumstance that 
 there was no actual pressure at the time, in the shape of 
 suits by the creditors for the recovery of their debts, is 
 not of itself sufficient to invalidate the alienation. 4 The 
 fact that there is a decree, an attachment, and a proclama- 
 tion of sale, 5 or even a decree which may at any time be 
 enforced against ancestral property, 6 is sufficient evidence 
 of pressure and justification for a sale or mortgage. A sale 
 of ancestral property merely for the purpose of procuring 
 funds for the repurchase of other property formerly belong- 
 ing to the family, cannot, of itself, be considered as a sale 
 for any of the necessary purposes .sanctioned by law. 7 
 Although, as a general rule, it may lie upon those who 
 claim, under an alienation of ancestral property for neces- 
 sary purposes, to show that the alienation was within the 
 limited powers of the party alienating, yet particular cir- 
 cumstances may shift the burden of proof. No fixed rule 
 can be laid down as to the degree of proof requisite in 
 such cases. 8 
 
 S:ie to pay A father governed by the Mitakshara law may sell 
 ancestral property in order to pay off debts which his 
 sons would be under a pious obligation to pay after 
 his death. 9 " The interests of the sons," said their Lord- 
 
 1 Kullar Singh r. Modhoo Dyal Singh, 5 Wym., 28. 
 
 * Bisambhur Naik v. Sudasheeb Mohapattur, 1 W. R., 96. 
 
 3 Sacaram v, Laxmabai, Perry, O. C., 129 ; Saravana v. Muttayi, 6 Mad. 
 H. C., 371. 
 
 4 Kaihur Singh v. Roop Singh, 3 N. W. P , 4. 
 
 5 Sheoraj Kooer v. Nukchedee Lall, 14 W. R., 72. 
 
 8 Purmessur Ojha *. M. S. Goolbee, 11 W. R.. 446. 
 
 7 Kaihur Singh v. Roop Singh, 3 N. W. P., 4.' 
 
 8 Kaihur Singh v. Roop Singh, 3 N. W. P., 4 ; Syud Tasouwar Ali v. 
 Koonj Beharee Lai. 3 N. W. P., 10. 
 
 9 GirdhareeLall v. Kantoo Lall, L. R., 1 1. A., 321 ; (S. C.) 14 B. L. R.,187. 
 
HUNOOMAN PERSAUD PANDAY'S CASE. 309 
 
 ships of the Privy Council, " as well as the interest of the LECTUBB 
 father iu the property, although it is ancestral, is liable 
 for the payment of the father's debts." Referring to this 
 passage Phear, J., said : x "It would, therefore, seem to 
 follow that any disposition of the property, which is 
 reasonably made by the father for the purpose of dis- 
 charging a debt of this kind, i.e., a debt of the father, 
 which does not fall within the exception (for immoral 
 purposes) is one of those spoken of and authorized as ' un- 
 avoidable' by paras. 28 and 29, s. 1, chap, i, Mitakshara. 
 The debt being of such a nature that the property is 
 ultimately liable to discharge it, the alienation of that 
 property, whether by mortgage or sale, by the father, upon 
 reasonable terms, for the purpose of discharging the debt, 
 must be substantially an unavoidable transaction." 
 
 The question in these cases is, whether the debt is 
 one which, if left unsatisfied, the sons would, under the 
 Hindu law, be under an obligation to discharge; 2 and 
 the lender is bound to show for what purpose the loan 
 was contracted, and that the purpose was one which justi- 
 fied the father in charging, or which the lender had at 
 least good grounds for believing did justify the father 
 in charging, the interests of the sons in the ancestral 
 property. 3 In Hunooman Persaud Panday v. M. S. Hunooman 
 Babooee Munraj Koonwaree 4 their Lordships of the Privy p^ a u ,5 s 
 Council said : " As to the consideration for the bond the case, 
 argument for the appellants in the reply, if correct, would 
 indeed reduce the matter for consideration to a very short 
 point ; for, according to that argument, if thefactum of a deed 
 of charge by a manager for an infant be established, and 
 the fact of the advance be proved, the presumption of law 
 is primd facie to support the charge, and the onus of dis- 
 proving it rests on the heir. For this position a decision, 
 or rather a dictum of the Sudder Dewany Adawlut at 
 Agra in the case of Oomed Rai v. Heera Lall 5 was quoted 
 and relied upon. But the dictum there, though general, 
 must be read in connection with the facts of that case. 
 It might be a very correct course to adopt with reference 
 to suits of that particular character, which was one where 
 
 1 Muddun Gopal Lall v. M. S. Gowrunbutty. 15 B. L. R., 271. 
 
 2 Adurmoni Deyi . Chowdhry Sibnarain Kur, I. L. R.. 3 Calc., 5. 
 
 3 Bheknarain Singh v. Januk Singh, I. L. R., 2 Calc., 445. 
 
 4 6 Moo. I. A.. 418. 
 
 4 6S. D. A., N. W. P., 218. 
 
310 HUNOOMAN PERSAUD PANDAY's CASE. 
 
 LECTURE the sons of a living father were, with his suspected col- 
 x - lusion, attempting to get rid of the charge on an ancestral 
 estate created by the father on the ground of the alleged 
 misconduct of the father in extravagant waste of the 
 estate. Now it is to be observed that a lender of money 
 may reasonably be expected to prove the circumstances 
 connected with his own particular loan, but cannot 
 reasonably be expected to know or to come prepared with 
 proof of the antecedent economy and good conduct of 
 the owner of an ancestral estate ; whilst the antecedents 
 of their father's career would be more likely to be in the 
 knowledge of the sons, members of the same family, than 
 of a stranger; consequently this dictum may, perhaps, be 
 supported on the general principle that the allegation and 
 proof of facts, presumably in his better knowledge, is to 
 be looked for from the party who possesses that better 
 knowledge as well as on the obvious ground in such suits, 
 of the danger of collusion between father and sons in 
 fraud of the creditor of the former. But this case is of 
 a description wholly different, and the dictum does not 
 profess to be a general one, nor is it so to be regarded. 
 Their Lordships think that the question, on whom does 
 the onus of proof lie in such suits as the present, is one 
 not capable of a general and inflexible answer. The pre- 
 sumption proper to be made will vary with circumstances, 
 and must be regulated by, and dependent on, them. Thus, 
 where the mortgagee himself, with whom the transaction 
 took place, is setting up a charge in his favour made by 
 one whose title to alienate he necessarily knew to be 
 limited and qualified, he may be reasonably expected to 
 allege and prove facts presumably better known to him 
 than to the infant heir, namely, those facts which embody 
 the representations made to him of the alleged needs of the 
 estate, and the motives influencing his immediate loan. 
 
 " It is to be observed that the representation by the 
 manager accompanying the loan as part of the res gestae, 
 and as the contemporaneous declarations of an agent, 
 though not actually selected by the principal, have been 
 held to be evidence against the heir; and as their Lord- 
 ships are informed that such primd facie proof has been 
 generally required in the Supreme Court of Calcutta 
 between the lender and the heir, where the lender is 
 enforcing his security against the heir, they think it reason- 
 able and right that it should be required. 
 
PURCHASER UNDER EXECUTION. 31 1 
 
 It is obvious, however, that it might be unreasonable LECTUBE 
 to require such proof from one not au original party after 
 a lapse of time, and enjoyment, and apparent acquies- 
 cence ; consequently, if, as is the case here as to part of 
 the charge, it be created by substitution of a new security 
 for an older one, where the consideration for the older one 
 was an old precedent debt of an ancestor not previously 
 questioned, a presumption of the kind contended for by 
 the appellant would be reasonable." l 
 
 A purchaser under an execution is not bound to go Purchaser 
 back beyond the decree to ascertain whether the Couil execution, 
 was right in giving the decree, or having given it, in put- 
 ting up the property for sale under an execution upon it, 2 
 for a judgment-debt is primd facie proof of necessit} 7 . 3 
 
 The rule applies where u minor seeks to set aside a 
 sale made by his guardian to pay off a decree against the 
 minor. 4 
 
 The decree alone is not, however, sufficient proof, 5 but 
 there should be evidence of the nature of the debts on 
 which the decree originated. 6 
 
 In a suit by the members of an undivided family 
 governed by the law of the Mitakshara, to set aside a sale 
 of joint ancestral property which had been sold in exe- 
 cution of a decree obtained against their deceased father, 
 on the ground that the debt was not one for which such 
 property could be made liable, it appeared that, prior to 
 the sale, the plaintiffs had preferred a claim of objection 
 on the same grounds, and that the Court of execution 
 
 1 See also Tandavaraya Mudali v. Valli Ammal, 1 Mad. H. C., 398 ; 
 Lalla Bunseedhur v. Koonwar Bindeseree Dutt Singh, 10 Moo. I. A., 
 461 ; Syud Tasouwar AH r. Koonj Beharee Lai. 3 X. W. P., 10 ; Chow- 
 dhry Herasutoollah c. Brojo Soondur Roy, 18 W. R., 77. 
 
 2 "Muddun Thakoor v. Kantoo Lall, L. R., 1 I. A., 334 ; (S. C.) 14 B. L. 
 R, 187, 199. 
 
 3 M. S. Bhowna r. Roop Kishore. 5 X. W. P., 89 ; Budree Lall v. 
 Kantee Lall. 23 W. R.. 260 ; M. S. Kooldeep Kooer v. Ruujeet Singh, 
 24 W. R.. 231 ; Sheo Pershad Singh v. M. S. Soorjbunsee Kooer, ib., 
 281 ; Burtoo Sing v. Ram Purmessur Singh, ib., 364 ; M. S. Sham 
 Soondur Kooer v. M. S. Jumna Kooer. 25 W. R., 148 ; Ram Sahoy Singh 
 v. Mohabeer Pershad. ib.,l$5; Shah Wajed Hossein v. Baboo Xankoo 
 Singh, ib.. 311 ; Luchmi Dai Koori v. Asman Singh. I. L. R., 2 Calc., 
 213 ; Venkataramayyan v Venkatasubramania Dikshatar, I. L. R., 1 Mad, 
 358 ; Bika Singh v. Luchman Singh. I. L. R., 2 All., 800. 
 
 4 Sheoraj Kooer v. Xuckchedee Lall, 14 W. R., 72 ; see further, Mayne's 
 Hindu Law. e. 304, as to coparceners. 
 
 5 Pareyasami v. Saluckai Tevar. 8 Mad.. 157. 
 
 6 Reotee Singh i\ Ramjeet, 2 X. W. P.. 50. 
 
312 
 
 PURCHASE FROM HEIR OF MAHOMEDAN DEBTOR. 
 
 X. 
 
 LECTUUE had declined to adjudicate on tlie claim, and had directed 
 the sale to proceed, referring the claimants to a regular 
 suit, it was held by the Privy Council, distinguishing the 
 case of Aluddun Thakoor v. Kantoo Lall, 1 that the pur- 
 chasers must be taken to have had notice, actual or con- 
 structive, of the objections made to the sale by the plain- 
 tiffs, and of the order then made, and to have purchased 
 with knowledge of the plaintiffs' claim, and subject to 
 the result of their suit. 2 
 
 Under Hindu law, where there is found to be an ances- 
 tral debt, and a sale is effected, to pay it, the purchaser 
 at such sale is not bound to inquire whether the debt 
 could have been met from other sources. 3 
 
 It may be shown that the ostensible purpose of the 
 loan was to pay off Government revenue ; but to render 
 such a loan binding upon those who had reversionary in- 
 terests in the property, it must also be satisfactorily 
 proved that such loan was at the time absolutely necessary 
 from failure of the resources of the estate itself, and was 
 not raised through the caprice or extravagance of the pro- 
 prietor. 4 
 
 Where the lender has shown that a justifiable debt exist- 
 ed, and persons claiming through the borrower allege that 
 it has been satisfied, tlie ordinary rule requires the party 
 who alleges payment to prove payment, and the debt will 
 not be presumed to be satisfied until the contrary is shown 
 by the creditor. 5 
 
 The creditors of a deceased Mahomedan, whether in res- 
 pect of dower or otherwise, cannot follow his estate into 
 the hands of a bond fide purchaser for value to whom it 
 has been alienated by the heir-at-law, whether by sale or 
 mortgage. But where the alienation is made during the 
 pendency of a suit in which the creditor obtains a decree 
 for the payment of his debt out of the assets of the 
 estate which have come into the hands of the heir-at-law, 
 the alienee will be held to take with notice, and will be 
 affected with the doctrine of Us pendens? 
 
 1 14 B. L. R.. 187 ; L. R., 1 I. A.. 333. 
 
 2 Suraj Bunsi Koer r. Sheo Persad Singh. I. L. R., 5 Calc., 148 ; see 
 Luchmun Dass v. Giridhur Chowdhry. I. L R . 5 Calc.. 855 
 
 3 Ajey Ram r. Girdharee ? 4 N. W. P., 110. 
 
 * Damoodur Mohapattur c. Birjo Mohapatter. S. D. of 1858. p. 802. 
 
 * Cavaly Vencata Narrainapah r. The Collector of Masulipatam. 
 11 Moo. I. A.. 633. 
 
 * Syud Bazayet Hossein r. Dooli Chund, I. L. R., 4 Calc., 402. 
 
 Purchase 
 from heir 
 of Maho- 
 medan 
 debtors. 
 
INTEREST. 313 
 
 If a trustee wrongfully disposes of trust-property to a LECTCIIE 
 bond fide purchaser for value, arid subsequently becomes 
 possessed of the same property, the trust attaches again, Acquisition 
 however many hands the property may have passed by trustee 
 through in the meantime. 1 property 
 
 wrongfully 
 converted. 
 
 If an executor or administrator retains the assets of his L . .... 
 testator after paying debts and legacies, and either neglects executor 
 to invest or employ the surplus in his business, 2 and does or admiuifl - 
 not account to the residuary legatees or next-of-kin as the pa y imer- 
 case may be, he will, after the expiration of the year which eit - 
 he is allowed 3 to realize his testator's assets, 4 be charged 
 with interest on the amount he has retained. 5 And if the 
 money has been employed in his business, he may be 
 charged with compound interest. 6 
 
 It is the duty of executors to make the fund productive, 
 and if there is a debt due from the testator's estate which 
 is carrying interest, they should apply the assets in paying 
 the debt ; and if they neglect to do so, they will be charged 
 with the amount of the interest. 7 
 
 So it has been held, that the trustee of a bankrupt's 
 estate, who neglects to declare a dividend for the benefit of 
 creditors, is liable to pay interest on the assets in his hands ; 8 
 and a receiver who neglects to obey a direction to invest 
 the rents and profits of the estate in his hands, must pay 
 interest on the sums he has received. 9 The rate would, in 
 this country, be 6 per cent, the Court rate of interest. 10 
 
 It is no excuse that the executor has made no profit 
 from the money in his hands ; it is his duty to make it pro- 
 fitable for the estate, and he will be made to pay interest, 
 though he has left the money in his banker's hands at a 
 separate account. 11 
 
 I Bovy v. Simth. 2 Ch. Cas.. 124 ; Kennedy v. Daly, 1 Sch. and Lef., 379. 
 - Ratcliffe r. Graves. 1 Vern.. 196. 3 See ante, p. 172. 
 
 4 Forbes v. Ross. 2 Cox, 113 ; Johnson v. Newton. 11 Hare. 160. 
 
 5 Forbes r. Ross. 2 Cox. 113 ; Piety v. Stace, 4 Ves., 620 ; Tebbs v. Car- 
 penter, 1 Madd.. 290 ; Crackelt r. Bethune. 1 Jac. and W., 586 ; Hall o. 
 Ballet. 1 Cox. 134 ; flol?ate v. Haworth, 17 Beav., 259. 
 
 6 Burdick r. Garrick, L. R., 5 Ch . 233. 
 
 7 Hall v. Hallet. 1 Cox. 134 ; Tebbs v. Carpenter, 1 Madd., 303 ; Tur- 
 ner r. Turner. 1 J. and W., 43. 
 
 8 Treves v. Townshend, 1 Bro. C. C. 384 ; Hankey v. Garrett, 1 Ves., 236. 
 
 9 Hicks v. Hicks, 3 Atk., 274. 
 
 10 As to when the rate of interest may be varied, see Lewin, 7th Edn., 
 313,314. 
 
 II Ashburnham r. Thompson, 13 Ves., 402. 
 
 40 
 
314 INTEREST. 
 
 LECTURE If a trustee whose duty it is to call in and invest the 
 x - trust-property, improperly leaves it outstanding, and it i.s 
 Liability of ^ os t, he will be liable for the amount of the property, but 
 trustee who not for interest. 1 In a case before the Privy Council, 2 
 pertTun*" A suec ^ B> a debtor of his intestate, upon a bond-debt, 
 invested, and obtained a decree against him for the amount. B 
 appealed to the Sudder Court. By a deed of arrangement 
 entered into by A and C after the commencement of the 
 suit, C became entitled to a six-anna share of the debt. 
 Pending the appeal to the Sudder Court, A entered into a 
 compromise with B, postponing the payment of the 
 amount recovered by the decree for three years, and fore- 
 going altogether interest upon the principal. This was 
 done without the privity or consent of C. B failed to pay 
 the amount within the stipulated time, and proceedings 
 were taken by A against him, but he had not realized the 
 amount of the decree. In a suit by C against A to make 
 him chargeable for the six annas share in the decree, the 
 Sudder Court held, that A was liable to C for such share 
 with interest. On appeal, the Privy Council held, that A 
 must be treated as a trustee for C, and that, in the absence 
 of fraud upon the cestui que trust in executing the com- 
 promise, or that it was not beneficial for all parties, he was 
 responsible only to C for such amount of the debt as had 
 been recovered, or without his wilful default might have 
 been recovered. 
 
 When Although a trustee is not liable for interest if he impro- 
 
 abte'to pay P er ty l e & ves the trust-property outstanding, he will be 
 interest, liable to pay interest if he unnecessarily delay in investing 
 the trust-property or in paying it over to a person enti- 
 tled to receive, even though the plaint does not pray for 
 interest; and 3 if there has been very great delay, may 
 have to pay the costs. 4 
 
 Trustee If a trustee mixes trust-funds with his own moneys, and 
 
 mist-funds employs the mixed fund in a trade or adventure of his 
 
 in trade, own, the cestui que trust may, if he prefers it, insist upon 
 
 charging the trustee with the principal and a proportionate 
 
 1 Lowson v. Copeland. 2 Bro. C. C., 156 ; Tebbs v. Carpenter, 1 Madd., 290. 
 
 2 Doorga Pershad Roy Chowdhry v. Tarra Persad Roy Chowdhry, 
 4 Moo. I. A., 452. 
 
 3 Woodhead v. Marriott. C. P. Coop. Cas., 1837-38, p. 62 ; Turner v. 
 Turner. 1 J, and W.. 39 ; Hollingsworth v. Shakeshaft, 14 Beav., 492 ; 
 Stafford r. Fiddon. 23 Beav.. 386. 
 
 4 Tickner v. Smith, 3 Sin. and Giff., 42. 
 
EMPLOYING TRUST FUNDS IN TRADE. 315 
 
 share of the profits, instead of with the principal and in- LECTURE 
 terest only. He cannot claim both interest aud profits in 
 respect of the money employed in trade, but must elect 
 between them. 1 The leading case on this point is Docker Docker p. 
 v. Somes, 2 and the principles upon which the Court acts Soin es. 
 were very clearly stated by Lord Brougham, L. C. His 
 Lordship said : " Wherever a trustee, or one standing in the 
 relation of a trustee, violates his duty, and deals with the 
 trust-estate for his own behoof, the rule is, that he shall 
 account to the cestui que trust for all the gain which he 
 has made. Thus, if trust-money is laid out in buying and 
 selling land, and a profit made by the transaction, that shall 
 not go to the trustee who has so applied the money, but to 
 the cestui que trust whose money has been thus applied. 
 In like manner (and cases of this kind are more numerous) 
 where a trustee or executor has used the fund committed 
 to his care in stock speculations, though the loss, if any, 
 must fall upon himself, yet, for every farthing of profit he 
 may make, he shall be accountable to the trust-estate. So, 
 if he lay out the trust-money in a commercial adventure, 
 as in buying or fitting out a vessel for a voyage, or put it 
 in the trade of another person, from which he is to derive 
 a certain stipulated profit, although I will not say that this 
 has been decided, I hold it to be quite clear that he must 
 account for the profits received by the adventure or from 
 the concern. In all these cases it is easy to tell what the 
 gains are ; the fund is kept distinct from the trustee's 
 other monej^s, and whatever he gets he must account for 
 and pay over. It is so much fruit so much increase on 
 the estate or chattel of another, and must follow the owner- 
 ship of the property and go to the proprietor. So it is 
 also where one not expressly a trustee has bought or traf- 
 ficked with another's money. The law raises a trust by 
 implication, clothing him, though a stranger, with the fidu- 
 ciary character for the purpose of making him accountable. 
 If a person has purchased land in his own name with my 
 money, there is a resulting trust for me ; if he has invest- 
 ed my money in any other speculation without my con- 
 sent, he is held a trustee for my benefit. And so an attor- 
 ney, guardian, or other person standing in a like situation 
 to another, gains not for himself, but for the client, infant, 
 or other party whose confidence has been abused. 
 
 1 Vyse c. Foster. L. R.. 8 Ch., 834. 2 2 M. and K., 664. 
 
316 DOCKER V. SOMES. 
 
 LECTTJBE " Such being the undeniable principle of equity such the 
 x - rule by which breach of trust is discouraged and punished 
 discouraged by intercepting its gains, and thus frustrating 
 the intentions that caused it punished by charging all 
 losses on the wrong-doer, while no profit can ever accrue 
 to him, can the Court consistently draw the line, as the 
 cases would seem to draw it, and except from the general 
 rule those instances where the risk of the malversation is 
 most imminent those instances where the trustee is most 
 likely to misappropriate, namely, those in which he uses 
 the trust-funds in his own traffic ? At first sight this seems 
 grossly absurd, and some reflection is required to under- 
 stand how the Court could ever, even in appearance, 
 tolerate such an anomaly. The reason which has induced 
 Judges to be satisfied with allowing interest only, I take 
 to have been this they could not easily sever the profits 
 attributable to the trust-money from those belonging to the 
 whole capital stock ; and the process became still more 
 difficult, where a great proportion of the gains proceeded 
 from skill or labour employed upon the capital. In case of 
 separate appropriation there was no such difficulty; as 
 where land or stock had been bought and then sold again 
 at a profit ; and here, accordingly, there was no hesitation 
 in at once making the trustee account for the whole gains 
 he had made. But where, having engaged in some trade 
 himself, he had invested the trust-money in that trade along 
 with his own, there was so much difficulty in severing the 
 profits which might be supposed to come from the money 
 misapplied from those which came from the rest of the 
 capital embarked, that it was deemed more convenient to 
 take another course, and instead of endeavouring to ascer- 
 tain what profit had been really made, to fix upon certain 
 rates of interest as the supposed measure or representative 
 of the profits, and assign that to the trust-estate. 
 
 "This principle is, undoubtedly, attended with one advan- 
 tage ; it avoids the necessity of an investigation of more 
 or less nicety in each individual case, and it thus attains 
 one of the important benefits resulting from all general 
 rules. But mark what sacrifices of justice and of expedi- 
 ency are made for this convenience. All trust-estates 
 receive the same compensation, whatever risks they may 
 have run during the period of their misappropriation; 
 all profit equally, whatever may be the real gain derived 
 by the trustee from his breach of duty; nor can any 
 
DOCKER V. SOMES. 317 
 
 amount of profit made be reached by the Court, or even LECTURE 
 the most moderate rate of merchantile profit, that is, the 
 legal rate of profits, be exceeded, whatever the actual gains 
 may have been, unless by the very clumsy and arbitrary 
 method of allowing rests, in other words, compound inter- 
 est ; and this without regard to the profits actually realized ; 
 for, in the most remarkable case in which this method has 
 been resorted to 1 (which, indeed, is always cited to be 
 doubted, if not disapproved), the compound interest was 
 given with a view to the culpability of the trustee's con- 
 duct, and not upou any estimate of the profits he had made 
 by it. 
 
 "But the principal objection which I have to the rule is 
 founded upon its tendency to cripple the just power of this 
 Court in by far the most wholesome, and indeed necessary, 
 exercise of its functions, and the encouragement thus held 
 out to fraud and breach of trust. What avails it towards 
 preventing such malversation, that the contrivers of sordid 
 injustice feel the power of the Court only where they are 
 clumsy enough to keep the gains of their dishonesty 
 severed from the rest of their stores. It is in vain they 
 are told of the Court's arm being long enough to reach 
 them, and strong enough to hold them, if they know that a 
 certain delicacy of touch is required without which the 
 hand might as well be paralysed or shrunk up. The dis- 
 tinction, I will not say sanctioned, but pointed at, by the 
 negative authority of the cases, proclaims to executors and 
 trustees, that they have only to invest the trust-money in 
 the speculations, and expose it to the hazards of their own 
 commerce, and be charged five for cent on it ; and then they 
 may pocket fifteen or twenty per cent by a successful 
 adventure. Surely the supposed difficulty of ascertaining 
 the real gain made by the misapplication is as nothing com- 
 pared with the mischiefs likely to arise from admitting 
 this rule, or rather this exception to one of the most general 
 rules of equitable jurisdiction." 
 
 There is no rule for apportioning the profits according to Apportion- 
 
 1 ., -T i -i j.i T -11 mg profits. 
 
 the respective amounts of the capital, but the division will 
 be affected by considerations of the source of the profit, 
 the nature of the business, and the other circumstances of 
 the case. It is obvious that it must be so ; there are many 
 cases in which the profit of a business has no ascertainable 
 
 1 Raphael r. Boehm, 11 Yes., 92. 
 
318 COMPOUND INTEREST. 
 
 LECTURE reference to the capital e.g., solicitors, factors, brokers, or 
 ^ bankers. Indeed, in almost every case where the business 
 consists of buying and selling, the difference between pros- 
 perit} 7 " and ruin mainly depends on tlie skill, industry, and 
 care of the dealers ; no doubt, also greatly on their credit 
 and reputation and the possession of ready-money to take 
 ad van tage of favourable opportunities and to enable them 
 to bile their time in unfavourable states of tlie market, 
 and also greatly on the established good-will and connec- 
 tion of the house. 1 
 
 Compound If a trustee is expressly directed to invest the trust- 
 funds, and to accumulate the income, and neglects the 
 direction to accumulate, he may be charged with compound 
 interest, although the principal fund may not have suffered 
 any loss. 
 
 There must have been an express trust in order to 
 charge the trustee with compound interest. 2 " Where 
 there is an express trust to make improvement of the 
 money," said Lord Eldon, 3 " if the trustee will not honest- 
 ly endeavour to improve it, there is nothing wrong in 
 considering him, as the principal, to have lent the money 
 to himself upon the same terms upon which he could 
 have lent it to others, and as often as he could have lent it 
 if it be principal, and as often as he ought to have 
 received it, and lent it to others, if the demand be interest, 
 and interest upon interest." 4 
 
 Tmst- jf a trustee mixes trust-funds with his own money, the 
 
 mixed with cestui que trust will be entitled to every portion of the 
 
 trustee's mixed fund which the trustee cannot prove to be his own. 
 
 >iiey. rp ne p r j nc jpi e j s> that if a man who undertakes to keep the 
 
 property of another distinct, mixes it with his own, the 
 
 whole must be taken to be the property of the other until 
 
 the former puts the subject under such circumstances, 
 
 that it may be distinguished as satisfactorily as it might 
 
 have been before that unauthorized mixture upon his 
 
 part. Thus, where a commission agent mixed his goods 
 
 with those of his principal, and destroyed his books of 
 
 account, he was disallowed his commission. 6 " I take it," 
 
 1 Vyse v. Foster, L. R.. 8 Ch.. 33 1. per James, L. J. 
 
 2 Tebbs v. Carpenter, 1 Madd., 290 ; Attorney-General v. Solly, 2 Sim., 
 618. 
 
 3 Raphael v. Boehm, 11 Ves., 92, 107. 
 
 4 See also Burdick c. Garrick, L. R.. 5 Ch.. 233. 
 
 5 Lupton v. White. 15 Ves . 436, per Lord Eldon. 
 . Gray c. Haig, 20 Beav.. 21'J. 
 
EMPLOYMENT OF TRUST FUND BY PARTNER. 319 
 
 said Shadwell, V.C., " that the general wisdom of man- LECTURE 
 kind has acquiesced in this, that the author of a mischief 
 is not the party who is to complain of the result of it, 
 but that he who has done it must submit to have the 
 effects of it recoil upon himself. This, I say, is a proposi- 
 tion which is supported by the Holy Scriptures, by the 
 authority of profane writers, by the Roman Civil Law, 
 by subsequent writers upon Civil Law, by the Common 
 Law of this country, and by the decisions in our own 
 Courts of Equity." l 
 
 The Contract Act 2 has altered the English law as 
 regards the case of a bailee, without the consent of the 
 bailor, mixing his goods with those of the bailor in such 
 a manner that the different goods become undistinguish- 
 ahle. According to English law the bailor takes the whole 
 of the goods. 3 The Contract Act, however, only entitles 
 the bailor to compensation. 
 
 If a partner, being a trustee, improperly employs trust- Partner 
 moneys in the business, or on the account of the partner- e^piovin 
 ship, no other partner is liable, therefor, to the cestui que trust-funds 
 trust, unless he either knew of the breach of trust, or with m busmess ' 
 reasonable diligence might have known it. In either of 
 the last- mentioned cases the partners having such know- 
 ledge or means of knowledge are jointly and severally 
 liable for the breach of trust. 
 
 The mere fact that trust-funds have been employed in 
 the business of a partnership is not enough to make the 
 firm liable. 4 To make the firm liable, all the partners 
 must have been implicated in the breach of trust. It 
 would be manifestly unjust to make persons liable for a 
 breach of trust of which they were wholly ignorant. If 
 it can be imputed to the partners that they knew, or 
 ought to have known, that trust-moneys were being em- 
 ployed in the partnership business, they will be held 
 bound to see that the trust to which the money is subject 
 authorizes the use of it, and will be answerable for a 
 breach of trust in case of its misapplication or loss. 5 
 
 1 Duke of Leeds v. Earl of Amherst. 20 Beav., 242 ; and see Mason v. 
 Morley. 34 Beav.. 470 ; Cook v. Addison, L. R., 7 Eq., 466. 
 
 2 Act IX of 1872. s. 157. 
 
 3 See Lupton v. White. 15 Ves.. 442. 
 
 4 E.r /Kirte Apsey. 3 Bro. C. C. 265 ; Ex parte Heaton, Buck, 386 ; Ex 
 part,- White. L. R.. 6 Ch., 397. 
 
 * Lindley on Partnership. 4th Ed., 312 ; see cases cited () 
 
320 ELECTION. 
 
 LECTUBE Thus, where 'a trader appointed an executor, who subse- 
 x - qnently entered into partnership with some other persons 
 in the same trade, and employed the testator's assets in 
 the partnership business, giving his partners an indem- 
 nity against any claim by the residuary legatees, it was 
 held, that the persons who had entered into the partner- 
 ship with the executor were jointly liable with him not 
 as partners, but because they had knowingly become 
 parties to the breach of trust. 1 
 
 Election Occasionally, a testator directs certain property intended 
 
 where ^o be the subject of trusts to be sold and invested, either 
 
 property in land or in securities for money. When this is done, the 
 
 to be sold trust-property is impressed with the character of the in- 
 
 vestment directed ; that is to say, money, or securities for 
 
 money, directed to be laid out in the purchase of land, or 
 
 land directed to be sold and turned into money, will be 
 
 considered as that species of property into which it is 
 
 directed to be converted ; the principle applied being that 
 
 " what ought to have been done shall be taken as done." 2 
 
 And in the case of intestacy, such trust-property will des- 
 
 cend as if it had been converted. 
 
 But when money has been directed to be converted into 
 land or other security, or land has been directed to be 
 converted into money, but the conversion has not in fact 
 taken place until the whole beneficial interest, whether in 
 land or money, has become vested absolutely in one cestui 
 que trust, he may elect to take the property in its original 
 character ; 3 the Court will not direct the conversion to 
 be carried into effect, because the cestui que trust, having 
 the absolute beneficial interest, can, as we have seen, ante, 
 p. 271, claim the property and could immediately re-convert 
 it, and " equity like nature will do nothing in vain." 4 
 
 The cestui que trust must be a person competent to 
 contract, 5 
 
 Election by Where immoveable property is directed to be sold, and 
 ^ e proceeds are to be divided among several persons, no 
 
 retain pro- 
 pertv un- 
 
 converted ' Flockton v. Bunning, L. R.. 8 Ch., 323 (ji) ; see also Vyse v. Foster, 
 ib.. 309 ; on appeal, L. R.. 7 H. L. C., 318. 
 
 2 Lechmere r. The Earl of Carlisle. 3 P. Wms., 215. 
 
 3 Cookson v. Cookson. 12 C. and F., 121. 
 
 4 Seely v. Jago, 1 P. Wms., 389. 
 
 5 As to who are competent to contract, see ante, p. 124. See also Seeley 
 r. Jago. 1 P. Wms., 389 ; Ashby v. Palmer, 1 Mer., 301 ; Carr v. Ellison, 
 2 Bro. C. C., 56. 
 
ELECTION. 321 
 
 one of the cesluis que trustent can elect that his own un- LECTUBB 
 divided share shall not be sold. " It would," said Romilly, 
 M. R., " be repugnant to the principles on which the doc- 
 trine of conversion and reconversion rests to hold, that one 
 of the legatees of an undivided share in the produce of real 
 estate directed by the testator to be converted into personalty 
 could, without the assent of the others, elect to take his share 
 as unconverted, and in the shape of real estate." x 
 
 The reason is, that a portion of the property would not 
 sell as beneficially as the entire estate. 2 If, however, 
 money is devised to be laid out in the purchase of lands 
 to be settled on several persons, any one of them may elect 
 to take his own share in money, for a portion of the money 
 can be invested as advantageously as the whole sum. 3 
 
 When a cestui que trust elects to take the trust-pro- Notifica- 
 
 perty unconverted, he may notify his election either by tlon of 
 
 i , ,. i -, J u -U 14 i, T-- election, 
 
 express declaration, which may be by parol, 4 or by his 
 
 acts. Very slight circumstances are sufficient to show that 
 the cestui que trust has elected to take the property in its 
 original character. 5 For instance, if the cestui que trust 
 takes money directed to be laid out in land, from the 
 trustee, 6 or enters into possession of land directed to be 
 converted into money, 7 and takes the title-deeds into his 
 own custody, for without them the trustees cannot sell, 8 or 
 mortgages the property, 9 he will be considered to have 
 elected to take the property unconverted. So the pre- 
 sumption will be the same if he keeps the land for a long 
 time unsold. 10 
 
 But the receipt of the income arising from money direct- 
 ed to be laid out in land, is not evidence of an election to 
 take the money unconverted. 11 
 
 1 Holloway v. Radcliffe. 23 Beav.. 172. 
 
 2 Chalmer v. Bradley, 1 J. & W., 59. 
 s Seeley v. Jago. 1 P. Wms.. 389. 
 
 4 Crabtree v. Bramble. 3 Atk., 685. citing Chaloner . Butcher ; Poltney 
 v. Darlington. 1 Bro. C. C., 237 ; Wheldale v. Partridge, 8 Ves.. 236. 
 
 5 Pultney v. Darlington. 1 Bro. C. C., 238 ; Van v. Barnett, 19 Ves., 
 109 ; Dixon v. Gayfere. 17 Beav., 434. 
 
 6 Pultney v. Darlington, 1 Bro. C. C., 238 ; Trafford v. Boehm, 3 Atk., 
 440 ; Rook v. Warth. 1 Ves., 461. 
 
 7 Dixon v. Gayfere. 17 Beav., 433. 
 
 8 Daviesf. Ashford. 15 Sim.. 42. 
 
 9 Padbury v. Clark. 2 Mac. & G.. 298. 
 
 10 Ashby v. Palmer, 1 Mer.. 301 ; Dixon v. Gayfere, 17 Beav., 433 ; 
 Griesbach r. Fremantle. ib.. ."14 ; Roberts r. Gordon, L. R., 6 C. D.. 531. 
 
 11 Gillies v. Longlands, 4 DeG. & Sm., 372 ; Re Pedders Settlement, 
 5 D. M. G., 890. 
 
 41 
 
322 ELECTION. 
 
 LECTURE, It is not necessary that the cestui que trust should in- 
 ^- tend to elect, it is sufficient if he shows an intention to 
 deal with the trust-property in its natural character. " It 
 was argued," said Kindersley, V. C., " that there must be 
 an intention strictly to convert, that is to say, that, 
 knowing that the money was impressed with the character 
 of laud, the party must say, ' I mean that it shall no 
 longer be land, but it shall be in its actual form of money.' 
 I do not, however, think that is the correct view of the 
 law. It is quite sufficient if the Court sees that the party 
 means it to be taken in the state in which it actually is, 
 whether he did or did not know that but for some elec- 
 tion by him it would be turned into land is quite im- 
 material. If, being money, the party absolutely entitled 
 indicated that he wished to deal with it as money, and 
 that it should be considered as money, whether he knew 
 or did not know that but for that wish it would have 
 gone as land, appears to me wholly immaterial." l 
 Liability of If one of several cestuis que trustent joins with the 
 <ms*/'oiu ^ rustee in committing a breach of trust, and a loss to the 
 ing in trust-estate is incurred, the other cestuis que trustent are 
 breacii of entitled to have the whole of his interest in the trust- 
 estate stopped and accumulated in the hands of the trustees 
 until the loss has been repaired. " Nothing," said Lord 
 Langdale, 2 "can be more clear than the rule which is 
 adopted by the Court in these cases, that if one party 
 having a partial interest in the trust-fund induces the 
 trustee to depart from the direction of the trust for his 
 own benefit, and enjoys that benefit, he shall not be per- 
 mitted personally to enjoy the benefit of the trusf, whilst 
 the trustees are subjected to a serious liability which he 
 has brought upon them. What the Court does in such a 
 case is, to lay hold of the partial interest to which that 
 person is entitled, and apply it, so far as it will extend, in 
 exoneration of the trustees, who, by his request and de- 
 sire, or acquiescence, or by any other mode of concurrence, 
 have been induced to do the improper act." 3 
 
 In Baby v. Ridehalgh* Turner, L. J. said: "The 
 
 1 Harcourt r. Seymour. 2 Sim. (N. S.), 46 ; see further as to conver- 
 sion and election. Lewin. 7th Ecln.. 801 823. 
 
 2 Lincoln r. Wright. 4 Beav., 432. 
 
CESTUI QUE TRUST JOINING IN BREACH OF TRUST. 323 
 
 trustees, then, being liable to replace those trust-funds, the LKCTURB 
 next question is, what is the extent of the liability which 
 attaches upon the cestuis que trustent for life in conse- 
 quence of their having induced the trustees to commit the 
 breach of trust ? Now the cestuis que trustent for life, 
 who instigated the trustees to commit the breach of trust, 
 have derived from that breach of trust the advantage of 
 enjoying the increased income of the fund not duly in- 
 vested according to the trust, and the consequence of that 
 is, that the cestuis que trustent in remainder have a right 
 to have that income refunded and made good by the ces- 
 tuis que trustent for life. It is trust-money received by 
 them under a breach of trust to which they were privy, 
 and the etfect, I apprehend, must be, that as the loss which 
 ought to fall on those who instigated the breach of trust 
 has been laid by the Court upon the trustees, the trustees 
 are entitled to stand in the place of the cestuis que trustent 
 in remainder, for the purpose of recovering, against the 
 cestuis que trustent for lite who instigated the breach of 
 trust, or their estates, the benefit actually received by them 
 in consequence of such breach of trust. It seems to me to 
 be the necessary consequence of the cestuis que trustent for 
 life having received the income of the trust-fund unduly 
 invested, that the trustees have a right to be indemnified as 
 against the cestuis que trustent for life or their estates, to 
 the extent which those estates have been benefited by the 
 improper investment." 
 
 The interest of the cestui que trust, who concurs in Against 
 the breach of trust, will be applied to make good the loss whom >- 
 
 . , j / i L V i i terest of 
 
 to the trust-fund, as against his assignee in insolvency, 1 <./, g , ie 
 judgment-creditors, 2 or general creditors, 3 and as against t st P- 
 auy persons deriving title through him, except in the case p ie * 
 of purchasers for valuable consideration without notice of 
 the breach of trust. 4 And the rule that we are now con- 
 sidering applies to property settled upon a married woman 
 for her separate use, for a married woman acting with res- 
 pect to her separate property is competent to act in all 
 respects as if she were unmarried. 5 But it does not apply 
 
 1 Ex parte King. 2 M. & A.. 410 ; Smith v. Smith, 1 Y. & C., Ex., 338 ; 
 Burridge r. Row, 1 Y. & C. C. C., 183. 583. 
 
 2 Lewin. 7th Edn., 778, citing Kilworth r. Mountcashell. 15 Ir. Ch. 
 Rep., 565. s Williams r. Allen. 32 Beav., 650. 
 
 4 Woodyatt r. Gresley, 8 Sim.. 180 ; Priddy r. Rose. 3 Mer.. 86 ; Cole 
 v. Muddle. 10 Hare. 186 ; Morris r. Livie, 1 Y. & C. C. C., 380. 
 
 5 Hulme v. Tennant. 1 Bro. C C., 20. 
 
324 TRANSFEREES BOUND BY EQUITIES. 
 
 LECTURE if the property is settled upon the married woman for her 
 
 x - separate use without power of anticipation. 1 
 Rights and We have seen 2 that a cestui que trust may transfer his 
 liabilities interest in the trust-fund. The transferree will be bound 
 ferree'from ty a ^ ^ ne equities affecting the trust-fund when transferred, 
 cestui que whether he had notice of the equities or not. 
 
 For instance, a person taking an equitable mortgage, with 
 notice of a prior equitable mortgage, cannot, by assignment 
 to another without notice, give him a better title than he 
 has himself. 3 So, where A obtained a mortgage of real and 
 personal estate from B without consideration, and it was 
 afterwards deposited with C as a security, G having no 
 notice of the circumstances under which it had been obtain- 
 ed, it was held, that C could stand in no better position 
 than A, and that the deed being void as against A, was 
 equally void as against C* 
 
 If a trustee has a beneficial interest in the trust-estate, 
 and owes money to it, and assigns his interest to a 
 stranger, the assignee is bound to discharge the debt owing 
 to the trust-estate by the trustee before he can take any- 
 thing under the assignment ; and this whether the original 
 debt was contracted before, or after the assignment. 5 
 Thus, where a testatrix bequeathed a leasehold estate to 
 trustees and executors in trust for sale, and gave one of 
 the executors a beneficial interest for his lite in one-fourth 
 part of the estate, and the executor being at that time indebt- 
 ed to the estate of the testatrix, made an assignment of his 
 beneficial interest by way of mortgage to secure a private 
 debt which he owed to a creditor, and deposited the title- 
 deeds with the creditor, it was held, in a suit by the co- 
 executors to recover the title-deeds, that the estate of the 
 testatrix was entitled to a lien on the interest of the 
 defaulting executor in the premises comprised in the deeds, 
 in priority to the lien created by his assignment to the 
 mortgagee ; and the Court decreed the title-deeds to be 
 delivered up, with a declaration that they belonged to the 
 three trustees. 6 
 
 1 Grigby v. Cox, 1 Ves., 518. Married women subject to the Succession 
 Act may deal with their property as if unmarried, see Act X of 1865, s. 4. 
 
 2 Ante, p. 271. a Ford v. White, 16 Beav., 120. 
 4 Parker v. Clarke, 30 Beav . 54. 
 
 4 Morris v. Livie, 1 Y. & C. C. C.. 380. 
 
 Cole v. Muddle, 10 Hare, 186 ; and see Barnett r. Sheffield, 1 D. M. 
 G., 371 ; Clack c. Holland, 19 Beav., 262 ; Wilkins v. Sibley, 4 Giff., 442. 
 
TRANSFEREES BOUND BY EQUITIES. 325 
 
 And the rule is the same if the assignment is made by a LECTUBB 
 cestui que trust.* 
 
 If the assignor did not acquire his fiduciary position 
 until after the assignment, there will be no equity against 
 the assignee in respect of a subsequently incurred debt. 2 
 
 A trustee or executor, when he receives notice that a 
 legatee has charged his legacy, is bound to withhold all 
 further payments to that legatee. All rights of set-off and 
 adjustment of equities between the legatee and the exe- 
 cutor existing at the date of the notice have priority over 
 the charge, but the trustees can create no new charges or 
 rights of set-off after that time. 3 
 
 1 Priddy r. Rose, 3 Mer., 86 ; Willes r. Greenhill, 29 Beav., 376 ; Ste- 
 phens v. Venables. 30 Beav., 625. 
 
 2 Irby v. Irby, 25 Beav., 632. 
 
 * Stephens r. Venables. 30 Beav., 625. See further as to the rights of 
 assignees and set-off, Lewin, 7th Edn., 596. 
 
LECTURE XI. 
 
 VACATING THE OFFICE OF TRUSTEE. 
 
 Vacating the office of trustee Discharge by cestuis que trustent Discharge 
 under power in instrument Number of trustees Trustee dying in life- 
 time of settlor Payment into Court Refusing or declining Retiring 
 Last survivor Cestui que trust may be appointed Assignee or devisee 
 of trustee becoming unfit or incapable New trustee should be within 
 jurisdiction Trustee paid to retire Breach of trust, Appointment must 
 be completed Stamp Discharge by Court Grounds of discharge 
 Whether retiring trustee must appoint successor Must be by suit Affidavits 
 of fitness Official Trustee's Act, s. 1 Appointment where property lost 
 Costs Grounds for discharge Discharge of representatives of trustee 
 Executor Trustees' and Mortgagees' Powers Act, s. 34 Conveyance to 
 new trustee Survival of trust Extinction of trust Compulsory pay- 
 ment into Court Nature of interest of plaintiff Payment in of share 
 Payment after decrees Payment in of fund not received Admission of 
 receipt of money by trustee Appointment of receiver Necessary parties 
 to a suit Suits by or against strangers Civil Procedure Code Succes- 
 sion Act, s. 187 Suits for specific performance Representative specially 
 constituted Suits between trustees ard cestuis que trustent Representa- 
 tives of deceased trustee When trustee unnecessary party Cestui que 
 trust abroad Suit for aliquot share Suit between trustees Executors 
 and administrators Suit by one cestui que trust on behalf of others 
 When allowable Severing defence Costs of severing Costs In suits 
 betweeti stranger as parties to trust Between trustees and cestuis que 
 trustent Costs out of fund Costs, charges, and expenses Disclaimer 
 Costs after decree Suit necessary by act of trustee Accounts Law 
 doubtful. 
 
 Vacating AFTER a trustee has accepted the office, he cannot by any 
 trustee^ f ac ^ ^ ^ s own > without communication with his cestui que 
 trust, denude himself of the character of trustee until he 
 lias performed his trust. 1 " The only modes," says Mr. 
 Lewin, 2 " by which a trustee can divest himself of the charac- 
 ter of trustee are the following : First, he may have the 
 universal consent of all the parties interested ; secondly, 
 he may retire by virtue of a special power contained in 
 the instrument creating the trust; or, thirdly, he may 
 obtain his release by application to the Court." 
 
 1 Chalmer r. Bradley, 1 J. & W., 68. * Lewin, 7th Edn., 553. 
 
DISCHARGE UNDER POWER. 327 
 
 A trustee can only be effectually discharged by the LECTURK 
 cestuis que trustent if they are all competent to contract, 
 and therefore if any of the cestuis que trustent are infants, Discharge 
 no discharge by those who are of age, will prevent the b y cestuis 
 trustee from being liable to the infants j 1 and the rule will i uetrugtent - 
 be the same whatever the disability of the cestui que 
 trust may be. All the cestuis que trustent must concur 
 in the discharge ; a discharge by the majority will not be 
 effectual. 2 
 
 If the parties interested in the trust-funds be not all in 
 existence, as where the limitation of the property is to 
 children unborn, it is clear that as the trustee cannot have 
 the sanction of all the parties interested, he cannot with 
 safety be discharged from the trust. 3 
 
 In the second case, as the person who creates the trust Discharge 
 may mould it in whatever form he pleases, he may provide under . 
 that, on the occurrence of certain events, and the fulfilment itistrunient. 
 of certain conditions, the original trustee may retire and 
 a new trustee be appointed. The form of power most 
 commonly in use in instruments drawn according to Eng- 
 lish precedents is, that, in case the trustees appointed by 
 the instrument of trust, or to be appointed under the 
 power, or any of them shall " die, or be abroad for twelve 
 calendar months, or be desirous of being discharged from, 
 or refuse, decline, or become incapable to act in the trusts," 
 it shall be lawful for the cestui que trust to whom the 
 power may be given, or (as the proviso is frequently 
 worded) for the surviving or continuing trustee, or the 
 executors or administrators of the survivor, by deed or 
 writing, to nominate some other person to be a trustee. 
 The best forms provide that a refusing or retiring trustee 
 shall, if willing to execute the power, be deemed to be a 
 continuing trustee. Sometimes the power is given to the 
 surviving, continuing, or other trustee an addition which 
 has been found useful in practice. 4 The power then pro- 
 ceeds to declare that the trust-estate shall forthwith be 
 vested jointly in the persons who are in future to compose 
 the body of trustees ; and that the new or substituted 
 trustee shall, either before or after the trust-estate shall 
 
 1 Wilkinson v. Parry. 4 Russ., 276. 
 
 2 Ex parts Hughes. 6 Ves., 622 ; Ex parte Lacey, ib., 628. 
 
 3 Lewin, 7th Edii.. 553. 
 
 4 Lord Camoys v. Best, 19 Beav., 414. 
 
328 NUMBER OF TRUSTEES. 
 
 LECTURE have been so vested, be capable of exercising all the same 
 - XI - powers as if he had been originally named in the settle- 
 ment. 1 
 
 Number of The question often arises, whether on the appointment 
 trustees. o f new trustees it is necessary to adhere to the original 
 number. The result of the authorities seems to be, that it 
 is not, unless such an intention can be gathered from the 
 particular language of the instrument. Thus, appointments 
 of two in the place of three or four, and of three in the 
 place of four or five, have been upheld ; 2 but it would not 
 be safe for the survivor of several trustees to retire and 
 appoint one new trustee only ; 3 and an increase of the 
 numbers has, in some cases, been allowed. 4 
 
 Trustee A power to a surviving or continuing trustee to appoint 
 
 j 1 ?' 11 ."" 1 a new trustee in the place of a trustee d} 7 ing, will apply 
 of settlor, to the case of a person dying in the lifetime of the author 
 Pavment ^ ^ ne trust. 5 And it has been held, that the payment 
 into Court, into Court of the trust-fund by the trustee is a retiring of 
 such trustee from the trust, and authorizes the appointment 
 of a new trustee in his place under a power for that pur- 
 pose, to arise in the event of a trustee refusing or declining 
 to act. 6 
 
 Refusing There seems no reasonable doubt that the words " refus- 
 or deciiu- j n g or declining " would apply to the case of a trustee 
 
 once acting and then retiring or declining further to act. 7 
 Retiring. A retiring trustee cannot appoint a new trustee under 
 a power for this purpose given to a surviving or continu- 
 ing trustee. 8 
 
 Last survi- But where there was a power for the surviving or con- 
 
 Tor< tinuing or other trustee or trustees, to appoint new trustees 
 
 in the place of a trustee or trustees dying or desiring to be 
 
 discharged, or refusing or declining to act, it was held, that 
 
 1 Lewin. 7th Edn.. 554. 
 
 2 In re Fagg's Trust. 19 L. J., Ch.. 175 ; In re Bathurst's Estate. 2 Sm. 
 & Giff., 172 ; Miller r. Priddou, 1 D. M. G., 335 ; Emmet v. Clarke, 3 Giff., 
 32 ; Reid r. Reid. 80 Beav.. 388. 
 
 3 Huhne r. Hulme. 2 M. & K., 682 ; Ex parte Davis, 2 Y. &C.C.C., 468. 
 
 4 D'Almaine v. Anderson, cited Lewin. 7th Edn.. 564 ; Meinertzhagen v. 
 Davis. 1 Coll.. 335 ; Sands r. Xugee. 8 Sim., 130. 
 
 5 Ex parte Hadley, 5 DeG. & Sm., 67 ; Nicholson r. Wright, 26 L. J. 
 Ch.. 312 ; Noble v. Meymott, 14 Beav., 477. 
 
 6 In re Williams's Settlement, 4 K. & J.. 87. 
 
 7 Lewin, 7th Edn., 561 ; Travis v. Illingworth, 2 Dr. & Sm.. 346. 
 
 8 Stones v. Rowton,'17 Beav., 308; Nicholson v. Smith. 3 Jur.. N. S., 
 313 ; Earl of Lousdale v. Beckett, 4 DeG. & S., 73 ; Travis r. Illingworth, 
 2 Dr. & Sm., 344 ; Sharp . Sharp, 2 B. & Aid., 415. 
 
WHO MAY BE APPOINTED. 329 
 
 an appointment of four new trustees by the last survivor LECTUBK 
 of four trustees who was desirous of being discharged was 
 good. 1 
 
 If, therefore, the power of appointing new trustees in the 
 place of trustees desiring to be discharged, &c., is limited 
 to the surviving or continuing trustees or trustee, and both 
 the trustees for the time being wish to retire, the following 
 course should be adopted : One of the two trustees should 
 first retire, and a new trustee be appointed in his place by 
 the other as the continuing trustee. The other trustee 
 should then retire, and the newly-appointed trustee under 
 the first appointment should, as the then continuing trustee, 
 appoint a trustee in the place of the last retiring trustee. 
 
 If there is only one surviving trustee, and he wishes to 
 retire, he should first appoint a new trustee in the place of 
 the deceased trustee, and then the newly-appointed trustee 
 should appoint a second trustee in the place of the retiring 
 trustee. 2 
 
 A person beneficially interested, and even the tenant-for- Cestui que 
 life under the trust-deed, may be appointed a new trustee, ''' m ?- v 
 unless the instrument shows an intention to the contrary. 3 e d. apl 
 
 The rules which relate to powers generally must be Assignee 
 observed in reference to a power for the appointment of r devisee 
 new trustees ; and such a power can only be exercised by of trustee ' 
 the person to whom it is expressly given by the instru- 
 ment ; so that the assignee or devisee of a surviving or con- 
 tinuing trustee cannot appoint new trustees under a power 
 limited to the surviving or continuing trustee, his execu- 
 tors or administrators only ; and if the power is only to be 
 exercised with consent, the power would be extinguished 
 by the death of the consenting party. 4 
 
 So also if a tenant-for-iife, in whom a power to appoint 
 new trustees is vested, aliens or mortgages his life-estate, 
 the power cannot afterwards be exercised without the 
 consent of the alienee or mortgagee, unless the right to do 
 so is expressly reserved. 5 
 
 A power to appoint a new trustee in the place of a per- Becoming 
 son ' becoming unfit ' to act, applies to the case of a person " llfic r 
 becoming insolvent. 6 But insolvency is not a ground for mcapa 
 
 1 Lord Camoys v. Best. 19 Beav., 414. 
 
 2 2 Prid. Convey., 9th Edn., 143. 
 
 3 Forster v. Abraham, L. R., 17 Eq., 351. 
 
 4 2 Prid. Convey.. 9th Edn., 143. 
 
 * Lewin, Ch. XXII. 6 In re Eoche, 2 Dr. and War., 287. . 
 
 42 
 
330 DISCHARGE BY COURT. 
 
 LECTURE an appointment under a power to appoint a new trustee 
 XI - in the place of a trustee ' becoming incapable ' to act. It 
 
 is, however, a sufficient ground for his removal from the 
 
 office by the Court. 1 A trustee who goes to reside abroad 
 
 does not ' become incapable ' to act. 2 
 
 Newtrus- The new trustees should be persons within thejurisdic- 
 b?withi!i d tion of the Court. Where, however, property in the English 
 jurisdic- funds was settled upon a lady on her marriage with an 
 tion. American, and she went to reside with her husband in 
 
 America, the subsequent appointment of three American 
 
 trustees, though not expressly authorized by the settlement, 
 
 was held to be valid. 3 
 
 But where the Court is applied to, to appoint new trustees, 
 
 it will not, as a rule, do so, if the proposed new trustees 
 
 reside without the jurisdiction.* 
 
 Trustee An appointment of a new trustee in consideration of a 
 tire! t0re " sum ^ mone y P a id to the appointor is bad ; 5 and so is the 
 
 appointment of a trustee for the purpose of committing a 
 Breach of breach of trust. In such a case the retiring trustee will 
 
 trust. . TIII 
 
 remain liable. 
 
 Appoint- The retiring trustee must be careful not to part with the 
 
 m s e "^ nust trust-fund until he is convinced that his successor has been 
 
 pieted. properly appointed, for if the appointment of the new 
 
 trustee is bad, and any breach of trust has been committed, 
 
 the retiring trustee will remain liable. 7 And he must see 
 
 that the circumstances under which he retires are those 
 
 contemplated by the settlor. 8 
 
 Stamp. The stamp-duty upon the transfer of trust-property from 
 
 one trustee to another without consideration is Us. 5. 9 
 
 Discharge We now have to consider the discharge of a trustee by 
 
 by Court. t h e Court. Upon this Mr. Lewin says : 10 " The trustee may, 
 
 in every proper case, although the contrary appears to have 
 
 been at one time supposed, 11 get himself discharged from 
 
 1 Bainbrigge v. Blair, 1 Beav., 495. 
 
 2 Withington v. Withington, 16 Sim., 104 ; Re Watt's Settlement, 
 9 Hare. 106. 
 
 3 Meinertzhagen r. Davis. 1 Coll., 335. 
 
 4 In re Guibert's Trust. 16 Jur., 852. 
 
 s Sugden r. Crossland, 3 Sm. and G., 192. 
 * Palairet r. Carew, 32 Beav., 567. 
 
 7 Pearce v. Pearce. 22 Beav., 248. 
 
 8 Lewin, 7th Edn.. 559 See further as to appointment of new trustees 
 under powers. Lewin, 7th Ed., 553 672. 
 
 9 Act I of 1879, sched. i, art. 60. 
 
 10 7th Edn., 572. " Hamilton v. Fry, 2 Moll., 458. 
 
GROUNDS OF DISCHARGE. 331 
 
 the office by the substitution of a new trustee in his place LECTURE 
 on application to the Court. A power of appointment of 
 new trustees is very frequently omitted in settlements (and 
 wills), or the donee of the power either cannot or will not 
 exercise it, and were there no means by which a trustee 
 could ever denude himself of that character, it would 
 operate as a great discouragement to mankind to undertake 
 so arduous a task." 
 
 A trustee who has accepted the trust will not be permitted, Grounds of 
 voluntarily, from mere caprice or other trivial cause, to throw dlschar s e - 
 it up at the expense of his cestui que trust. The Court must 
 come to a conclusion in each case, whether the conduct of 
 the trustee in the particular instance falls within the rule. 1 
 It is usual for the trustee who seeks to be discharged by whether 
 the Court to name some person as his successor, subject to retiri "g 
 the approval of the Court. It is not, however, necessary must ap- 
 that he should do so, and in some cases he may be unable P int suc - 
 to find any person willing to undertake the trust. " It is ce 
 quite a mistake," said Lord St. Leonards, " to suppose that 
 a trustee, who is entitled to be discharged from his trust, is 
 bound to show to the Court that there is some other per- 
 son ready to accept the trust. The Court refers it to the 
 Master to appoint a new trustee ; but if -no person will 
 accept the trust, it may find itself obliged to keep the 
 trustee before the Court, and not discharge him. The 
 Court, will, however, take care that the trustee shall not 
 suffer thereby." 2 It is doubtful whether a trustee who has 
 accepted the trust, and committed no breach of trust, can 
 get discharged by the Court, if no other fit person can be 
 found to act and the cestui que ti*ust will not consent to his 
 discharge. 3 His only course under such circumstances is 
 to apply to have the trusts executed by the Court. 4 
 
 The application to be discharged must be by suit. 5 If, Must be by 
 however, a suit relating to the trust-estate is pending, the sult " 
 trustee may move in the suit for his discharge. 6 The appli- Affidavits 
 cation for the appointment must be supported by affidavits of fitue ss- 
 
 1 Courtenay r. Courtenay. 3 J. and Lat., 533 : Forshaw v. Higginson, 
 20 Beav. ? 487. 
 
 2 Courtenay r. Courtenay. 3 J. and Lat., 533. 
 
 * Ardill f. Savage. 1 Ir. Eq.. 79, cited Lewin, 7th Edn., 573. 
 
 4 Forshaw v. Higginson. 20 Beav.. 485 : Gardiner r. Downes, 22 Beav., 
 397 ; see In re Stokes's Trusts, L. R., 13 Eq., 333. 
 
 * Ex part e Anderson. 5 Ves., 243; In re Fitzgerald, LI. and G., 22 ; 
 In re Anderson, ib.. 29 ; Barry v. Steel, 1 Calc.. 80. 
 
 r. Osborne, 6 Ves., 455 ; r. Robarts. 1 Jac. and W., 251. 
 
332 OFFICTAL TRUSTEE'S ACT, s. 10. 
 
 LECTURE as to the fitness of the person proposed. If no one is pro- 
 XI - posed, or if the Court is dissatisfied with the affidavits, a 
 reference will be directed to ascertain who is a fit and 
 proper person to act. 
 
 Official^ The Official Trustee's Act 1 provides, that " if any property 
 Act, S s? e io. i g subject to a trust, whether for a charitable purpose or 
 otherwise, and there shall be no trustee willing to act, or 
 capable of acting, in the trusts thereof, who is within the 
 local limits of the ordinary or extraordinary jurisdiction of 
 the High Court (High Court means the High Courts of 
 Judicature at Fort William in Bengal, Fort St. George, and 
 Bombay respectively in the exercise of their original civil 
 jurisdiction, Act XVII of 1864, s. 1), or if property is sub- 
 ject to a trust, and all the trustees or the surviving or 
 continuing trustee, and all the persons beneficially interest- 
 ed in the said trust, shall be desirous that the Official 
 Trustee shall be appointed in the room of such trustees or 
 trustee, then, and in any such case it shall be lawful for the 
 High Court on petition, and with the consent of the Official 
 Trustee, to appoint the Official Trustee to be the trustee of 
 such property ; and, upon such appointment, such property 
 shall vest in the Official Trustee and his successors in office, 
 and shall be held by him and them, upon the same trusts 
 as the same were held previous to such appointment." 
 The Act provides, 2 that no trust for any religious purpose 
 shall ever be held by the Official Trustee. 
 
 Appoint- I n a su it to appoint new trustees of a settlement, where a 
 ment where part of the trust-property had been lost by previous negli- 
 FosT erty gence or breach of trust, the Court refused to confine the 
 trust to the remaining property ; but appointed the new 
 trustees to be trustees of the whole of the property com- 
 prised in the settlement, directing, for the protection of the 
 new trustees, a reference to inquire whether it would be 
 proper to take proceedings for the recovery of the property 
 which had been lost. 3 
 
 Costs. A trustee has a right to be discharged, but if he retires 
 
 without good grounds, or from caprice, he will have to bear 
 the costs of the suit. 4 In all other cases he will be 
 entitled to his costs out of the fund. 5 
 
 1 XVII of 1864, s. 10. 2 Sec. 8. 3 Bennett v. Burgis, 5 Hare, 295. 
 
 4 Howard v. Rhodes. 1 Keen. 581 ; Porter v. Watts, 16 Jur., 757 ; For- 
 shaw v. Higginson, 20 Beav., 485. 
 
 5 Greenwood v. Wakeford, 1 Beav., 581 ; Forshaw v. Higginson, 
 20 Beav., 485 ; Courtenay v. Courtenay. 3 J. and Lat., 529 ; Gardiner v. 
 Downes, 22 Beav., 395. 
 
COSTS. 333 
 
 If the trustee finds the trust-estate involved in intricate LECTUBK 
 and complicated questions, which were not, and could not 
 have been, in contemplation at the time when the trust Grounds 
 was undertaken, he has, in consequence of that change of for dis - 
 circumstances, a right to come to the Court to be relieved ; ciarge> 
 and the Court will judge whether the circumstances were 
 such as to make it fair for him to decline acting longer on 
 his own responsibility. 1 
 
 Where the trustees of a marriage settlement, being 
 desirous of retiring from the trusts in consequence of the 
 responsibility to which they were exposed by the acts of 
 the tenant-for-life, in repeatedly charging the trust-estates 
 and funds with annuities and other incumbrances, insti- 
 tuted a suit to be discharged from the trusts, and for the 
 appointment of new trustees under the direction of the 
 Court, the relief sought was granted, and the costs were 
 ordered to be paid out of the interest of the tenant-for- 
 life. 2 
 
 The trust-estate, upon the death of a sole trusee, or of the Discharge 
 sole surviving trustee, descends upon his representatives. e n r ^ p t i*~ 8 
 If they wish to be discharged, they must also apply to the of trustee. 
 Court; but there is this difference that they cannot be 
 charged with caprice for declining to act. 3 
 
 An executor is regarded in some sense as a trustee, but Executor, 
 he cannot, like a trustee, be discharged even by the Court 
 from his executorship. However, when the funeral and 
 testamentary expenses, debts, and legacies have been satis- 
 fied, and the surplus has been invested upon the trusts of 
 the will, the executor then drops that character and becomes 
 a trustee in the proper sense, and may then be discharged 
 from the office like any other trustee. 4 
 
 Cases to which English law is applicable are governed by Trustee's 
 Act XXVIII of 1866. Section 34 of that Act provides, that g Tt ' 
 " whenever any trustee, either original or substituted, Powers 
 and whether appointed by any High Court or other- Act) 8 ' ^ 
 wise, shall die, or be six months absent from British 
 India, or desire to be discharged from, or refuse, or become 
 unfit or incapable to act in the trusts or powers in him 
 
 1 Greenwood r. Wakeford, 1 Beav., 581 ; Barker r. Peile, 2 Dr. and 
 Sin.. 340. 
 
 2 Coventry v. Coventry, 1 Keen, 758. 
 
 3 Greenwood v. Wakeford. 1 Beav., 582; Aldiidge v. "Westbrook, 
 4 Beav., 212 ; Legg r. Mackrell, 2 DeG. & J., 551. 
 
 * Lewin, 7th Edn., 575. 
 
334 TRUSTEE'S AND MORTGAGEE'S POWERS ACT. 
 
 LECTTOE reposed, before the same shall have been fully discharged 
 and performed, it shall be lawful for the person or persons 
 nominated for that purpose by the deed, will, or other 
 instrument creating the trust (if any), or if there be no 
 such person able and willing to apt, then for the surviving 
 or continuing trustees or trustee for the time being, or the 
 
 o o-* 
 
 acting executors or executor, or administrators or adminis- 
 trator of the last surviving and continuing trustee, or for 
 the retiring trustees, if they shall all retire simultaneously, 
 or for the last retiring trustee, or where there are two or 
 more classes of trustees of the instrument creating the 
 trust, then for the surviving or continuing trustees or 
 trustee of the class in which any such vacancy or disquali- 
 fication shall occur (and for this purpose any refusing or 
 retiring trustee shall, if willing to act in the execution of 
 the power, be considered a continuing trustee) by writing 
 to appoint any other person or persons to be a trustee or 
 trustees in the place of the trustee or trustees so dying, or 
 being absent from British India, or desiring to be dis- 
 charged, or refusing or becoming unfit or incapable to act 
 as aforesaid. So often as any new trustee or trustees shall 
 be so appointed as aforesaid, all the trust-property (if any) 
 which for the time being shall be vested in the surviving 
 or continuing trustees or trustee, or in the heirs, executors, 
 or administrators of any trustee, shall, with all convenient 
 speed, be conveyed and transferred, so that the same may 
 be legally and effectually vested in such new trustee or 
 trustees, either solely or jointly with the surviving or 
 continuing trustees or trustee as the case may require. 
 Every new trustee to be appointed as aforesaid, as well 
 before as after such conveyance or transfer as aforesaid, 
 and also every trustee appointed by any High Court either 
 before or after the passing of this Act, shall have the 
 same powers, authorities, and discretions, and shall in 
 all respects act as if he had been originally nominated 
 a trustee by the deed, will, or other instrument (if any) 
 creating the trust. The Official Trustee may, with his 
 consent, and by the order of the High Court, be ap- 
 pointed under this section in any case in which only 
 one trustee is to be appointed, and such trustee is to be the 
 sole trustee." 
 
 Convey- Upon the appointment of a new trustee, the trust-pro- 
 
 anceto new perty must be conveyed to him. If the trustee is appointed 
 
 ^ by the Court, and there is no person to convey, the Court 
 
SURVIVAL OF TRUST. 335 
 
 will order the trust-estate to be vested in the trustee. 1 LECTUBE 
 In the case of a charitable endowment by a Hindu, if the 
 succession to the office of trustee wholly fails, the right of 
 management reverts to the heirs of the founder. 2 
 
 Trustees take the trust-estate as joint tenants, and there- S 
 fore, on the death of one, the estate, office, and power of truau 
 survive to his co-trustees or trustee. 3 A bare authority 
 committed to several persons is determined by the death 
 of any one, but if coupled with an interest, it passes to the 
 survivors. 4 And this right by survivorship will not be 
 affected, merely because there is a power of appointing 
 new trustees in place of those ceasing to be trustees, 3 unless 
 the instrument creating the trust specially manifests such 
 intention. 6 Where an Act of Parliament declared that 
 the survivors should, and they were thereby required to 
 appoint new trustees, it was said, that the proviso was analo- 
 gous to the common one in settlements, and that the clause 
 was not imperative, but merely of a directory character. 7 
 
 So also an executorship or administratorship or testamen- 
 tary guardianship survives. 8 
 
 A trust is extinguished when the purposes for which it Extinction 
 was created have been completely fulfilled. For instance, of trusu 
 if property is given to trustees on trust to apply the 
 income towards the maintenance and education of the 
 children of A, and upon the youngest attaining a certain 
 age, upon further trust to distribute the principal among 
 the children in certain proportions, the trust is extin- 
 guished when the youngest child has attained the age 
 mentioned, and the fund has been distributed. And the 
 trust will be extinguished if, owing to the property 
 having been lost or destroyed, there is nothing left to apply 
 towards the purposes of the trust. 9 
 
 1 See 2 Madd. Ch. Practice, pp. 161 201. As to the inherent power of 
 the Court to appoint trustees, see Dodkin v. Brunt. L. R., 6 Eq.. 580. 
 
 2 M. S. Jai Bansi Kunwar v. Chattar Dari, 5 B. L. R., 181 ; see as to 
 vesting the trust-estate in a new trustee, Lewin, 7th Edn., 557 ; and as to 
 vesting in cases to which English law is applicable in India, see Act 
 XXVII of 1866, post, Appendix. 
 
 Lane v. Debenham. 11 Hare, 188 ; "Watson t. Pearson, 2 Ex., 581. 
 
 Eyre v. Countess of Shaftesbury. 2 P. Wms. , 108. 
 
 Warburton c. Sandys. 14 Sim., 622. 
 
 Foley r. Wontner, 2 J. and W., 245 ; Jacob v. Lucas, 1 Beav., 436. 
 
 Doe v. Godwin, 1 D. and R., 259. 
 
 8 See Lewin. 7th Edn. . 239. 
 
 9 Frith v. Cartland, 34 L. J., Ch., 301. 
 
336 PAYMENT INTO COURT. 
 
 LECTURE When a man, previously to going through the ceremony 
 XI - of marriage with his deceased wife's sister, executed a 
 settlement reciting the intended marriage, by which certain 
 property was assigned to trustees in trust for the settlor 
 until the solemnization of the marriage; and after the 
 solemnization thereof and after the decease of the settlor, 
 to pay the interest to the intended wife for life, and then 
 for the benefit of his two children by his former wife, and 
 such children as he should have by his intended marriage ; 
 but if there should be no such child or children, then for 
 the settlor, his executors, administrators, and assigns, it 
 was held, that as no valid marriage could take place 
 between the settlor and his deceased wife's sister, the 
 trust in favour of himself until the solemnization of such 
 marriage continued, and the subsequent trusts never having 
 arisen, the property remained in him and formed part of 
 his general estate. 1 
 
 And a trust ceases when it is revoked. 2 
 
 Compuiso- In certain cases a cestui que trust has the right to have 
 the trust-fund paid into Court. The general rule is, that 
 the plaintiffs must be solely entitled to the fund, or have 
 acquired in the whole of the fund such an interest, together 
 with others, as entitles them, on their own behalf and 
 the behalf of those others, to have the fund secured in 
 Court; 3 and apparently , the order is a matter of course. 4 
 If a plaintiff claims to be entitled in a particular character 
 to a fund in the hands of a trustee, and the trustee, by his 
 answer says, he does not know whether the plaintiff fills 
 that character or not, the plaintiff cannot have the fund 
 brought into Court in the suit. 5 The money may be 
 ordered to be paid in on the application of a party having 
 a mere contingent interest in the fund, 6 even though all 
 the parties having vested interests are satisfied with the 
 conduct and custody of the trustees, and are opposed to 
 the application. 7 All the persons having an interest in 
 the fund ought, as a rule, to be before the Court ; 8 but this is 
 
 1 Pawson v. Brown, L. R., 13 Ch. Div., 202. 
 12 See as to revocable trusts, ante, pp. 68-76. 
 3 Freeman v. Fairlie, 3 Mer., 29. * Lewin. 7th Edn., 841. 
 
 5 Dubless v. Flint, 4 M. and 'C., 502 ; and see M'Hardy v. Hitchcock, 
 11 Beav., 77. 
 
 6 Bartlett v. Bartlett, 4 Hare, 631 ; Ross v. Ross, 12 Beav., 89. 
 
 7 Bartlett v. Bartlett. 4 Hare. 631. 
 
 8 Whitmarsh v . Robertson, 4 Beav., 26 ; Bartlett v. Bartlett, 4 Hare, 631. 
 
PAYMENT INTO COURT. 337 
 
 not absolutely necessary. 1 The application for payment LECTURE 
 is made by motion, and if some of the persons interested XL 
 are not necessary parties to the suit, it is not requisite 
 to serve them with notice of the motion. 2 But where all 
 the cestuis que trustent were served with the copy of a 
 bill for the appointment of new trustees and transfer to 
 them of the trust-fund, there being nothing asked in the 
 bill as to the transfer of the fund into Court, it was held, 
 that all the cestuis que trustent must be served with notice 
 of motion to transfer the fund into Court, as there was 
 nothing in the bill to indicate that it was intended so to 
 deal with the trust-fund. 3 
 
 Where the plaintiff in a suit seeking solely the pay- Nature of 
 ment into Court of a fund for the relief of poor Armenian "I 1 ? 1 " 6 ?! of 
 orphans had no interest except as a member of the Armenian 
 community, the suit was dismissed, although the trus- 
 tees consented to the decree sought by the plaintiff. 4 
 
 If the trustee admits that he holds the fund as trustee for 
 some person or persons, and the Court sees a reasonable 
 probability that the plaintiff will establish his title at the 
 hearing, it will order the trustee to pay the trust-fund into 
 Court. 5 In Richardson v. The Sank of England 6 Lord 
 Cottenham said : " I must, in the first place, observe, that 
 the motion for payment into Court by the defendant of 
 the sum mentioned in the order must be considered as 
 founded upon the supposition of that sum being due from 
 him. It is not the case of a contest as to the title to any 
 particular property, in which the Court will, in some cases, 
 take possession of the subject-matter of the contest for 
 security, until it adjudicates upon the right. Such cases 
 generally arise where the property is in the hands of 
 estate-holders, factors, or trustees, who do not themselves 
 claim any title to it. In ordering money into Court under 
 such circumstances, the Court does not disturb the posses- 
 sion of any party claiming title, or direct a payment 
 before the liability to pay is established." 
 
 1 Wilton v. Hill, 2 D. M. G., 807 ; Hamond v. Walker, 3 Jur., N. S., 
 686. 
 
 2 Marryat v. Marryat, 23 L. J., N. S., Ch., 876. 
 
 * Lewellin r. Cobbold. 1 Sin. & G., 572. 
 
 4 Satoor v. Satoor. 2 Mad., 10. 
 
 5 M'Hardy . Hitchcock, 11 Beav., 73; Whitmore v. Turqnand, J. 
 and H., 296 ; Dolder v. Bank of England, 10 Ves., 355 ; but see Dubless 
 v. Flint, 4 M. and C., 502. 
 
 4 M. and C., 170. 
 
 43 
 
338 
 
 PAYMENT INTO COURT. 
 
 LECTUBE 
 XI. 
 
 Payment 
 in of share. 
 
 Payment 
 
 after 
 
 decree. 
 
 Payment 
 in of fund 
 not re- 
 ceived. 
 
 Admission 
 of receipt 
 of money 
 by trustee. 
 
 It is not necessary that the whole fund should he paid 
 into Court, but where the defendant is clearly entitled to 
 a definite share, he will only he ordered to pay in the 
 shares which are claimed by other parties ; l and it is not 
 necessary that the defendant should expressly admit that 
 there is trust-money in his hands, it is sufficient if it is 
 shown that he has been served with notice of the intended 
 motion, and has not disputed the affidavit which it is pro- 
 posed to read to show that he received the fund. 2 
 
 When a decree has been made, and the Court finds from 
 the evidence that a certain amount will be found due from 
 the defendant, but that, by reason of unavoidable delay 
 in ascertaining how much will be due, no final decision 
 as to the ultimate balance of the account can be arrived 
 at, it has power to order such amount to be paid into 
 Court ; 3 and money may be ordered to be paid in at the 
 hearing without a notice of motion for that purpose having 
 been given. 4 The principle is, that the cestui que trust is 
 entitled to have the trust-fund secured by a decree of the 
 Court. 5 
 
 Trustees may be ordered to pay the amount of a trust- 
 fund into Court, although it is not in their hands, if it 
 appears that they might have at any time received it. So, 
 trustees cannot excuse themselves from their liability on 
 the ground that a co-trustee has obtained possession of 
 the fund and misapplied it, 6 or indeed that they have lost 
 the fund by any neglect of their duty. 7 
 
 Where an executor or trustee admits that he has received 
 a certain sum belonging to the testator's estate, but adds 
 that he has made payments, the amount of which he does 
 not specify, the Court will allow him to verify the amount 
 of his payments by affidavit, and order him, on motion, 
 to pay the balance into Court, 8 and may allow him to 
 retain a reasonable sum for expenses and commission. 9 
 
 1 Rogers r. Rogers, 1 Anst . 174 ; Hamond v. Walker, 3 Jur., N. S., 686; 
 Score v. Ford, 7 Beav., 336. 
 
 2 Freeman v. Cox. L. R.. 8 Ch. Div., 148 ; see as to the old rule in 
 England, Lewin. 7th Edn., 837. 
 
 3 London Syndicate v. Lord. L. R.. 8 Ch. Div., 89. per Jessel, M. R. 
 
 4 Isaacs v. Weathersfcone, 10 Kare. App.. 30. 
 
 5 Governesses' Institution r. Rusbridger, 18 Beav., 469. 
 
 6 Ingle v. Partridge, 32 Beav., 661. 
 
 7 See Lewin, 7th Edn.. 869, where the cases are collected. 
 
 8 Anon., 4 Sim., 359 ; Proudfoot v. Hume, 4 Beav , 476. 
 
 9 Roy v. Gibbon, 4 Hare, 05. 
 
RECEIVER. 339 
 
 The mere fact that the defendant makes admissions LECTURE 
 which would entitle the plaintiff to a decree, is not suffi- 
 cient to warrant the Court in ordering money to be paid 
 into Court ; l there must be an admission that the defendant 
 has a fund, and that the plaintiff is entitled to it. 2 So, if 
 two persons are jointly liable, one of them cannot, before 
 the extent of the joint liability has been ascertained, 
 compel the other to pay the estimated proportion of his 
 supposed liability into Court. 3 And the Court will not 
 order interest on the fund in the trustee's hands to be 
 paid into Court, unless there is an admission that he has 
 made interest, even though it is clear that he will ulti- 
 mately have to pay interest. 4 
 
 There are cases where the Court has apparently ordered 
 the payment of a debt upon motion, as where an executor 
 or trustee admits himself to owe a debt to the estate he 
 represents. In those cases the person to pay and the 
 person to receive being the same, the Court assumes that 
 what ought to have been done has been done, and orders 
 the payment, not as of a debt by a debtor, but as moneys 
 realized in the hands of the executor or trustee. 5 
 
 The mere existence of a discretionary power in trustees 
 affords no reason why the Court should not order payment 
 of the fund into Court. But the Court will not order 
 such payment to be made when it appears that trustees 
 are about to exercise their discretion in a proper manner. 6 
 
 The Court will give the defendant a reasonable time 
 within which to transfer the fund into Court. If the fund 
 is capable of immediate transfer, it will have to be paid in 
 at once ; but if it is outstanding on securities, time will be 
 given to realize." 
 
 The Court will, upon the application of all the parties Appoint- 
 beneficially interested, appoint a receiver of the trust-estate 
 
 1 Peacham r. Daw. 6 Madd., 98. 
 
 * Richardson v. The Bank of England, 4 M. and C., 174. 
 
 s Ibid. 
 
 4 Freeman v. Fairlie, 3 Mer., 43 : Wood v. Downes 1 V. and B., 50 : and 
 see Rothwell ?. Rothwell, 2 S. and S., 217 ; Richardson v. Bank of Eng- 
 land. 4 M. andC.. 174. 
 
 s Richardson r. The Bank of England, 4 M. and C., 174 ; see White 
 v. Barton. 18 Beav.. 192. 
 
 6 Talbot t. Marshfield, 2 Dr. & Sm.. 285. 
 
 7 Vigrass r. Binfield, 3 Madd., 62 ; Wyatt r. Sharratt, 3 Beav., 498 ; 
 Hinde r. Blake, 4 Beav., 597 ; Score r. Ford, 7 Beav., 333 ; Roy v. Gibbon, 
 4 Hare, 65. 
 
340 RECEIVER. 
 
 LEO-TUBE when any of the trustees refuse to act. 1 But a receiver 
 XI - will not be appointed without sureties, even if he is not 
 objected to, when persons not competent to consent are 
 parties. 2 
 
 If all the parties do not consent to the appointment, any 
 one of the cestuis que trustent may apply. A strong case must 
 be made out. 3 The fact that a trustee or executor is poor 
 is not of itself a sufficient ground, 4 unless he is in other 
 . respects unfit, as for example, if he is of drunken habits, 
 or misapplication of the trust-funds is likely. But if any 
 misconduct, waste, or improper disposition of the assets is 
 shown, the Court will instantly interfere. 6 If, for instance, 
 an executor and trustee neglects to get in his testator's 
 estate, and thereby deprives infant legatees of the main- 
 tenance or means of advancement provided for them by 
 the will, 7 or if he is not impartial, 8 a receiver will be 
 appointed. So a receiver will be appointed if the trustee is 
 insolvent, 9 or bankrupt, 10 or incapacitated from acting, 11 or 
 out of the jurisdiction. 12 A receiver was appointed where 
 one of four trustees was dead, another had but little inter- 
 fered in the trusts of the will, a third was abroad, and 
 the fourth submitted to the appointment. 13 In another 
 case three trustees had disagreed, and a receiver was 
 appointed, the order was taken by arrangement between 
 the parties, but the Court had previously expressed its 
 opinion that, unless the trustees could agree, a receiver 
 must be appointed. 14 Where three trustees disagreed, and 
 
 1 Beaumont v. Beaumont, cited in Brodie r. Barry, 3 Her., 696 ; Bro- 
 well v. Reed, 1 Hare, 435. 
 
 2 Manners v. Furze, 11 Beav.. BO; Tylee v. Tylee, 17 Beav., 583. 
 
 3 Middleton v. Dodswell, 13 Ves., 266 ; Barkley v. Lord Reay, 2 Hare, 
 306. 
 
 4 Howard v. Papera, 1 Madd., 142 ; Hathornthwaite v. Russel, 2 Atk., 
 126. 
 
 5 Everett v. Prythergch, 12 Sim., 367 ; Havers v. Havers, Barn., 23. 
 Anon., 12 Ves., 5 ; Evans v. Coventry, 5 D. M. G., 911. 
 
 7 Richards v. Perkins, 3 Y. & C. Ex., 299. 
 
 8 Talbot v. Hope Scott. 4 K & J., 139. 
 
 8 Middleton v. Dodswell, 13 Ves., 266; Scott v. Becher, 4 Price, 346 ; 
 Mansfield t>. Shaw, 3 Madd., 100. 
 
 10 Gladdon v. Stoneman, 1 Madd., 143 () ; Langley v. Hawk, 5 
 Madd., 46. 
 
 11 Bainbrigge v. Blair, 3 Beav.. 421 ; Taylor v. Allen, 2 Atk., 213. 
 
 12 Noad v. Backhouse, 2 Y. & C. C.C., 529 ; Smith v. Smith, 10 Hare., 
 Ixxi. 
 
 13 Tidd *. Lister, 5 Madd.. 430. 
 
 14 Lewin, 7th Edu.. 813, citing Day v. Croft, May 2, 1839, M. R. ; and 
 Hart r. Denham, W. N., 1871, p. 2. 
 
PARTIES TO SUITS. 341 
 
 two of tLem acted together and took securities in their LECTURE 
 own names, omitting the name of the dissentient trustee, XI - 
 it was held that a cestui que trust was entitled to a receiver. 1 
 
 It is not a sufficient ground for the appointment of a 
 receiver that one of several trustees has disclaimed. 2 But 
 if there are only two trustees, and one disclaims, a receiver 
 may be appointed ; and either of the trustees may be at 
 liberty to offer himself. 3 Nor is it the practice to appoint 
 a receiver solely because one of several trustees is inactive, 
 or has gone abroad. 4 And the fact that trustees have let 
 a purchaser into possession before receiving the purchase- 
 money, is not, of necessity, such misconduct as to induce 
 the Court to interfere. 5 
 
 Where a receiver is appointed under the authority of 
 the Court, he is appointed for the benefit of all parties 
 interested ; and therefore, he will not be discharged merely 
 on the application of the parties at whose instance he is 
 appointed. 6 
 
 Suits in equity affecting trusts are either (1) between Necessary 
 strangers on the one hand and the persons interested in j^uit 8 to 
 the trust on the other ; or (2) between persons interested 
 in the trust inter se} 
 
 I. As a general rule, according to English practice, in Suits by 
 suits by or against strangers, all the trustees and all the or against 
 
 strjiD* r Grs 
 
 cestuis que trustent, as together constituting but one in- 
 terest, must be made parties. 8 
 
 The Civil Procedure Code 9 provides, that " all persons civil Pro- 
 may he joined as plaintiffs in whom the right to any relief ed d ure 
 claimed is alleged to exist, whether jointly, severally, or in 
 the alternative, in respect of the same cause of action ; and 
 judgment may be given for such one or more of the plain- 
 tiffs as may be found to be entitled to relief, for such relief 
 as he or they may be entitled to without any amendment." 
 Section 27 contains provisions for substituting or adding 
 plaintiffs. And s. 28 provides, that " all persons may be 
 joined as defendants against whom the right to any relief 
 
 1 Swale v. Swale. 22 Beav., 584. 
 
 2 Browell v. Reed. 1 Hare, 434. 
 
 8 Tait r. Jenkins. 1 Y. & C. C. C.. 492. 
 4 Browell v. Reed, 1 Hare, 43ti. 
 
 6 Jb id. 
 
 * Bainbrigge r. Blair. 3 Beav., 423. 
 
 7 Lewin, 6th Edu.. 796. 
 
 * Bifield r. Taylor, 1 Moll, 198 ; Adams r. St. Leger. 1 B. and B.. 184. 
 
 8 Act X of 1877. s. 26. 
 
342 PARTIES TO SUITS. 
 
 LECTURE is alleged to exist, whether jointly, severally, or in the alter- 
 XI - native, in respect of the same matter ; and judgment may 
 be given against such one or more of the defendants as may 
 be found to be liable according to their respective liabili- 
 ties without any amendment." 
 
 Section 437, as amended by Act XII of 1879, s. 72, how- 
 ever, modifies the general rule as to parties. By that sec- 
 tion it is provided, that " in all suits concerning property 
 vested in a trustee, executor, or administrator, when the 
 contention is between the persons beneficially interested in 
 such property and a third person, the trustee, executor, or 
 administrator shall represent the persons so interested ; 
 and it shall not, ordinarily, be necessary to make them 
 parties to the suit. But the Court may, if it think fit, order 
 them, or any of them, to be made such parties." 
 Succession The Succession Act 1 provides, that " no right as executor 
 Act, s. is<. or i e g a t ee can foe established in any Court of Justice, 
 unless a Court of competent jurisdiction within the pro- 
 vince shall have granted probate of the will under which 
 the right is claimed, or shall have granted letters of admi- 
 nistration under s. 180." 
 
 The provisions of this section extend to Hindus, Jainas, 
 Sikhs, and Buddhists. 2 
 
 Section 190 of the Succession Act 3 provides, that " no 
 right to any part of the property of a person who has died 
 intestate can be established in any Court of Justice unless 
 letters of administration have been first granted by a Court 
 of competent jurisdiction." 
 
 This section has not been extended to Hindus, Jainas, 
 Sikhs, or Buddhists. 4 
 
 Suits for In suits for the specific performance of a contract, or to 
 perform- ^ ave ^ cancelled upon any ground, the general rule is, that 
 ance. the parties to the contract are the only parties to the suit, 
 and therefore if trustees enter into a contract, not as the 
 agents of their cestuis que trustent, but as principals 
 (though the property of the cestuis que trustent is in fact 
 concerned), they may sustain a suit either as plaintiffs or 
 defendants without the presence of the cestuis que trustent ; 
 and not only is it unnecessary, but in many cases it would 
 be highly improper, to make the cestuis que trustent parties. 
 But where persons, sustaining a fiduciary character, enter 
 
 1 X of 1865. s. 187. 3 X of 1865. 
 
 2 Act XXI of 1870, s. 7. 4 Act XXI of 1870, s. 1. 
 
PARTIES TO SUITS. 343 
 
 into a contract, not as principals, but on behalf and as the LECTUKE 
 agents of other parties, those other parties as the principals, XI - 
 and not their agents, are the proper parties to sue. 1 
 
 Where several persons have united in constituting Represen- 
 another their representative in a matter for all purposes, ^J C " P _~ 
 there, it seems, such representative may sue or be sued in stituted. 
 the absence of the cestui que trust. But the intention to 
 constitute such a representative must clearly appear ; for 
 trustees are not themselves owners of the property : they 
 are, in a sense, agents for the owners in executing the trust ; 
 but they are not constituted agents for the purpose of de- 
 fending the owners against the adverse claims of third 
 parties. 2 
 
 II. In suits between trustees and cestuis que trustent, it Suits be- 
 is a general rule that all the trustees and all the cestuis que l***^ 5 ' 
 trustent must be parties, the object being to take the neces- cestuis que 
 sary accounts at once, and to avoid multiplicity of suits; 3 tnatent - 
 and the rule holds good even though the liability of the 
 trustees as between themselves may hereafter have to be 
 ascertained in a suit for contribution. 4 A third person 
 who reaps the benefit of a breach of trust must be made a 
 party, as he is liable to the cestuis que trustent. 5 But a 
 transferree from the trustees without notice of a breach of 
 trust is not a necessary party. 6 
 
 The representatives of a deceased trustee may be made Represent- 
 parties, but a plaintiff may waive any relief as against tives f 
 
 - ' , . . l . J i ii deceased 
 
 them.' And it is not necessary to make the representa- trustee, 
 tives of a deceased trustee, who, when he died, had no in- 
 terest in the subject-matter of the suit, parties. 8 Nor is it 
 necessary to make them parties, if the deceased trustee was 
 not a party to a breach of trust in respect of which relief 
 is sought, 9 or if the suit is not for the purpose of charging 
 the trustees personally. 10 
 
 1 Lewin, 6th Edn., 798 ; and see Act I of 1877, 8. 27. 
 
 2 Lewin. 6th Edn., 799. 
 
 3 Latouche v. Dunsany, 1 Sch. and Lef., 137 ; 2 Sch. and Lef., 690 ; 
 Coury r. Cautfield, 2 B. and B.. 255. 
 
 4 Perry v. Knott. 4 Beav., 180. 
 
 5 Perry v. Knott. 4 Beav.. 179 ; 5 Beav., 297 ; Consett r. Bell, 1 Y. and 
 C. C. C., 569 ; Williams v. Allen. 29 Beav., 292 ; 4 D. F. J., 71. 
 
 8 Knye v. Moore. 1 S. and S., 61. 
 
 7 Selyard r. Harris, 1 Eq. Ca. Ab . 74 ; Moore v. Blake, 1 Moll., 284. 
 
 8 Beattie r. Johnstone, 8 Hare, 169. 
 
 9 Simes v. Eyre. 6 Hare, 137. 
 
 10 London Gas Light Company v. Spottiswoode, 14 Beav., 271. 
 
344 PARTIES TO SUITS. 
 
 LECTURE So a trustee who disclaims, 1 or is beyond the jurisdic- 
 
 XI - tion of the Court, 2 or cannot be compelled to appear, 3 
 
 When n eed not be made a party. An insolvent trustee must be 
 
 trustee un- ma de a party, for he may subsequently be in a position to 
 
 necessary i. v I* vv * v u A i i 
 
 partj-. meet his liability ; 4 but it is not necessary to make Ins 
 representatives parties, for they can have no assets. 5 And 
 it is not necessary to make a trustee party who has been 
 discharged and has transferred his interest, 6 or a trustee 
 who is a mere agent. 7 
 
 Cestui que jf a ces f u i q ue trust is abroad and cannot be found, he 
 
 abroad. should be made a party, and the suit may proceed in his 
 
 absence ; but the Court will protect his interest in the 
 
 decree, and he may subsequently come in and have the 
 
 decree amended. 8 If, however, his interest is proposed to be 
 
 affected, no decree can be made in his absence. 9 
 
 Suit for ali- In a suit by a cestui que trust for an aliquot share in an 
 
 quot share. ascer tained fund, the other cestuis que trustent need not be 
 
 parties. 10 But if the fund is not ascertained, the other 
 
 cestuis que trustent must be parties. 11 
 
 Suit be- I* 1 a su ik between trustees to recover a fund which has 
 tween trus- been lost by the breach of trust of the defendant, the ces- 
 tuis que trustent need not be parties. 12 But in a suit for 
 contribution between trustees, a cestui que trust who has 
 concurred in the breach of trust must be made a party. 13 
 Persons who claim adversely to the trust cannot be parties 
 \to a suit for the execution of the trust. 14 
 
 Executors Where there are several executors or administrators they 
 
 and admi- must all be made parties to a suit against one or more of 
 
 ors< them. But executors who have not proved their testator's 
 
 I Wilkinson r. Parry, 4 Russ., 274. 2 Walley r. Walley, 1 Vern., 487. 
 
 3 Butler v. Prendergast, 2 Bro. P. C., 17*. 
 
 4 Thorpe v. Jackson, 2 Y. and C. Ex., 560 ; Haywood v. Ovey. 6 Madd., 
 113. 
 
 s Devaynes r. Robinson, 24 Beav., 98 ; Moore v. Morris, L. R., 
 13 Eq., 139. 
 8 Bromley v. Holland, 7 Ves.. 11 ; Reed v. O'Brien. 7 Beav., 32. 
 
 7 Slade r. Rigg, 3 Hare, 35. 
 
 8 Attorney-General v. Balliol College, 9 Mod., 407 ; Willats v. Busby, 
 5 Beav , 193. 
 
 9 Browne . Blount, 2 R. and M.. 83 ; Holmes v. Bell, 2 Beav., 298 ; 
 Willats v. Busby, 5 Beav., 193. 
 
 10 Hutchinson v. Townsend, 2 Keen, 675 ; Hughson v. Cookson, 3 Y. 
 and C. Ex.. 578 ; Perry v. Knott. 5 Beav., 293. 
 
 II Lenaghan v. Smith, 2 Ph., 301 ; Alexanders. Mullins, 2 R. and M. 568. 
 
 12 Peake v. Ledger. 4 DeG. and Sm., 137 ; Noble v. Meymott, 14 Beav., 
 471 : Bridgman r. Gill. 24 Beav., 302. 
 
 13 Jesse v. Bennett, 6 D. M. G., 609. 
 
 14 Attorney-General v. Portreeve of Avon, 3 DeG. J. and. S., 637. 
 
PARTIES TO SUIT. 345 
 
 will, and executors and administrators beyond the local LECTUBB 
 limits of the jurisdiction of the Court, need not be made XI - 
 parties. 1 And unless the Court directs otherwise, the hus- 
 band of a married administratrix or executrix need not be 
 a party to a suit against him or her. 2 
 
 If the cestuis que trustent are very numerous, some may Suit by one 
 sue or defend on behalf of the others. The Civil Procedure c t %j 
 Code 3 provides, that, " where there are numerous parties behalf of 
 having the same interest in one suit, one or more of othera - 
 such parties may, with the permission of the Court, sue or 
 be sued, or may defend in such suit on behalf of all parties 
 so interested. But the Court shall, in such case, give, at 
 the plaintiff's expense, notice of the institution of the suit 
 to all such parties either by personal service, or (if from 
 the number of parties or any other cause such service is 
 not reasonably practicable), then by public advertisement, 
 as the Court in each case may direct." 
 
 The trustees must in such a case be parties. 4 
 
 In order that some cestuis que trustent may sue on behalf When 
 of others, the relief sought must be beneficial to those on allowable - 
 whose behalf the suit is brought, and their interests must 
 be identical. 5 What number of cestuis que trustent will 
 be considered ' numerous ' is not very clear, but apparently 
 any number over twenty-one will be so treated. 6 
 
 " In a contest between the trust on the one hand and a Severing 
 stranger on the other, the trustees and cestuis que trustent d fence - 
 represent but one interest, and costs must not be multi- 
 plied unnecessarily by the severance of them in the suit. 
 
 Sir Anthony Hart laid it down, that a cestui que trust 
 about to file his bill, ought to apply to his trustee to allow 
 his name to be used as co-plaintiff. This (he said) ^ the 
 trustee is bound to comply with upon being indemnified 
 against costs. Should the trustee refuse, he would be 
 departing from his duty ; and, in such a case would not be 
 entitled to his costs when made defendant in consequence 
 of his refusal. But where no application is made to the 
 trustee to permit his name to be used as co-plaintiff, he is 
 in no default ; and the cestui que trust would be bound to 
 
 ' Act X of 1877. s. 438. 2 Ibid, 439. * Act X of 1877, s. 30. 
 
 4 Holland ?. Baker. 3 Hare. 68. 
 
 5 Bainbridge v. Burton. 2 Beav.. 539 ; Richardson r. Larpent, 2 Y. and 
 C C. C., 507 ; Evans v. Stokes, 1 Keen, 24. 
 
 Harrison v. Stewardson, 2 Hare, 533 ; Smart r. Bradstock. 7 Beav., 
 500 ; Bateman v. Margerisou, 6 Hare, 496. 
 
 44- 
 
346 COSTS. 
 
 LECTURE pay the costs of the trustee for his own unreasonable negli- 
 XI ^ gence in not having required the trustee to be co-plaintiff" 1 
 Trustees and cestuis que trustent, if they are made defend- 
 ants in the same right, should not sever in their defence and 
 put in separate written statements ; 2 they cannot be com- 
 pelled to join, 3 but only one set of costs will be allowed if 
 they do not. 4 
 
 In suits by cestuis que trustent, against trustees, all the 
 cestuis que trustent, whose interests are identical, should 
 join as plaintiffs. 5 
 
 severing Trustees should defend jointly, and will only be allowed 
 one set of costs if they do not, which will be a pportioned 
 between them, 6 unless one trustee has expressed his willing- 
 ness to join, when he alone will get his costs; 7 and an inno- 
 cent trustee need not join with a co-trustee who has been 
 ruilty of a breach of trust, and who is the accountable 
 defendant. 8 The costs in such a case will be awarded to 
 the innocent trustee. So trustees will be justified in sever- 
 ing if their answers would be different, or if they are 
 residing so far apart that a joint written statement is 
 impracticable. 9 
 
 Costs in I n suits between strangers and trustees, and cestuis que 
 between trustent, as in the case of a suit for specific performance of 
 a contract, if the trustees are unsuccessful, they must pay 
 the costs. 10 If a suit by a stranger is dismissed with costs, 
 a trustee who is a defendant will not, as is usual between 
 trustee and cestui que trust, be ordered his costs as be- 
 tween attorney and client, but only as between party and 
 party. 11 
 
 Between When the suit is between the trustees and cestuis que 
 cestulTpu trustent, the general rule is, that the trustees shall have 
 
 trustent. 
 
 1 Lewin, 6th Edn., 811. 
 
 2 Woods v. Woods, 5 Hare, 229 ; Farr . Sheriffe, 4 Hare, 528. 
 8 Van Sandau v. Moore, 1 Russ., 441. 
 
 4 Lewin, 6th Edn., 811. 
 
 5 Hosking v. Nicholls, 1 Y. and C. C. C., 478. 
 
 Gaunt v. Taylor, 2 Beav., 347 ; Shovelton v. Shovelton, 32 Beav.. 143 ; 
 Course v. Humphrey, 26 Beav., 402; Attorney-General v. Wyville 28 Beav., 
 464. 
 
 7 Attorney-General v. Cuming, 2 Y. and C. C. C., 156. 
 
 8 Webb v. Webb, 16 Sim., 55 ; Cummins v. Bromfield, 3 Jur., N. S., 657. 
 8 See further Lewin, 6th Edn., 312. 
 
 10 Burgess v. Wheate, 1 Eden, 251, Ex parte Angerstein, L. R., 9 Ch., 
 479 ; Elsey o. Lutyens, 8 Hare, 164. 
 
 11 Mohun v. Mohun, I Swanst., 201 ; Saunders v. Saunders, 3 Jur., N. S., 
 727. 
 
COSTS. 347 
 
 their costs either out of the trust estate or from the cestuis LECTURE 
 q ue trustent personally if they are of age. 1 
 
 If there is a fund in Court, 2 or if there is no fund in cost* oat 
 Court, if the trustees have been blameless, they are entitled of fuild - 
 to their costs as between solicitor and client ; in the latter 
 case, as against the trustees personally. 3 
 
 When it appears that the trustees have sustained charges ^^ 
 and expenses beyond the costs of suit, they will be allowed am'u'x^ 
 costs, charges, and expenses properly incurred. But an order p"3s. 
 made in a suit in this form will not include costs, charges, 
 and expenses incurred in defending other suits, unless they 
 are specially mentioned. 4 As to costs in creditor's and 
 legatee's suits, where the fund is deficient, see Lewin, 6th 
 Edn., p. 829. 
 
 A trustee who disclaims will be entitled to his costs as Disclaimer, 
 between party and party. 5 
 
 Where a trustee did not appear at the hearing, and a Cost* aftwr 
 decree nisi was made against him, and the trustee set down tlecree - 
 the cause again, and prayed to have his costs of the suit 
 upon paying the costs of the day, the order was made. But 
 if the decree has been passed, a trustee who has omitted to 
 ask for his costs at the hearing, cannot have the cause re- 
 heard upon the subject of costs only, and cannot obtain an 
 order for payment of his costs upon presenting a petition. 6 
 
 If a suit has been rendered necessary by the misconduct, Suit ne- 
 negligence, or caprice of the trustee, he must, as we have {^f s , ! " t y f 
 seen, pay the costs personally; and if such an order is made, trustee, 
 he cannot deduct the costs from the trust fund. 7 If, how- 
 ever, the wrongful acts charged have only been partially 
 proved, the trustee will only have to pay costs in respect 
 of the allegations proved. 8 So if he has not been guilty of 
 any wilful breach of trust, but the suit has been rendered 
 necessary by an innocent mistake, the Court will not order 
 him to pay the costs of the other side, and may even allow 
 him his costs. 9 And if a breach of trust is discovered in 
 
 1 Hall v. Hallet, 1 Cox., 141 ; Attorney-General r. City of London. 3 
 Bro. C. C.. 171 ; Rocke v. Hart, 11 Ves., 58 ; Taylor c. Glanville, 3 Madd., 176. 
 
 2 Mohun v. Mohun, 1 Swanst, 201 ; Moore r. Frowd, 3 M. & C.. 49. 
 
 Attorney-General r. Cuming, 2 Y. & C. C. C., 155 ; Edenborough . 
 Archbishop of Canterbury, 2 Russ., 112. 
 
 4 Payne v. Little, 27 Beav., 83. 
 
 Norway r. Norway, 2 M. and K.. 278. 
 
 Lewin, 6th Edn.. 829. 
 
 7 Attorney-General v. Daug-ars. 33 Beav. , 621. 
 
 Pocock v. Redington, o Ves., 800; Sanderson r. Walker, 13 Ves., 601. 
 
 See Lewin, 6th Edn., 831. 
 
348 COSTS. 
 
 LECTURE the course of a suit, the trustee will only have to pay so 
 XI - much of the costs as are thereby occasioned. 1 After a 
 trustee has cleared his default, he will be allowed his sub- 
 sequent costs. 2 
 
 Accounts. It has been decided, that though, as a general rule, when 
 a trustee commits a breach of trust, he must pay the costs of 
 a suit to repair it, yet he will be entitled to his subsequent 
 costs relating to the ordinary taking of the accounts. 3 
 If, however, the taking of the accounts has been rendered 
 necessary by the breach of trust, it is difficult to see why 
 the trustee should be exonerated from paying the costs 
 incident to the accounts. 
 
 Law doubt- Trustees will not have to bear the costs of discussing a 
 doubtful point of law. 4 But a trustee will have to pay 
 the costs of a suit instituted for the purpose of determining 
 a question relating to his own private interests. 5 And as 
 a general rule it may be laid down that a trustee, who 
 refuses to account, or claims to be a creditor of the trust 
 fund, or denies assets, or behaves in an obstructive way in 
 the taking of the accounts, will be ordered to pay the costs 
 caused by his misconduct. 6 
 
 1 Tebbs t. Carpenter, 1 Madd., 290 ; Pride v. Fooks, 2 Beav., 430. 
 
 2 Birks v. Micklethwait, 33 Beav., 409. 
 
 8 Hewett v. Foster, 7 Beav., 348 ; Bate v. Hooper, 5 D. M. G., 345 ; Re 
 King, 11 Jur., N. 8., 899. 
 4 Raphael v. Boehm, 13 Ves., 592. 
 ' Henley v. Phillips, 2 Atk., 48. 
 6 See Lewin, 6th Edn., 833. 
 
LECTURE XII. 
 
 RELIGIOUS AND CHARITABLE TRUSTS. 
 
 Religious and charitable trusts Trust of immoreable property Bequests to 
 religious or charitable uses What are charitable purposes Religious pur- 
 poses Inhabitants of particular place Improvement of particular place 
 Trust for particular classes or persons Educational purposes Gift must 
 be for the public Must be cei-tain Morice t>. Bishop of Durham In- 
 stances of uncertainty Principles of construing will Cy pres Altering 
 scheme Gift for charitable purposes generally Particular purpose failing, 
 where gift is to charity generally Particular charity not described Failure 
 of object where no intention to give to charity generally Apportionment of 
 fund Gift over Charity in foreign country Breach of trust Mode of 
 procedure to obtain redress Civil Procedure Code, s. 539 Liability of 
 trustees to account New trustee New trustees of society for maintaining 
 religious worship Memorandum of appointment Vesting Appointment of 
 Official Trustee to charitable trust Vesting property in trustees of charity 
 Visitors Controlling revenues of charity Subsequent gift Purchaser 
 without notice from purchaser with notice Alienation of charity-estate 
 Religious trusts among Hindus Perpetuities Colourable gift to idol 
 Gift must be certain Gifts to religious or charitable uses by Oudh taluq- 
 dars Tenure in trustee Trust imperfect Devise subject to trust Sale 
 of property subject to trust Partition subject to trust Alienation 
 Evidence of endowment to be given How far sale set aside Trustee 
 may not benefit by sale Sale of turn of worship Succession to trustee- 
 ship Enjoyment of endowed property Turn of worship Limitation 
 Management vested in different persons Proof of succession Succession 
 where manager bound to celibacy Reversion Removal of trustee Re- 
 moval of mohunt Religious trust irrevocable Execution of trust 
 Principles to be followed Right to erect place of worship Religious 
 trusts among Mahomedans Elements of touqf, Creation of Evidence 
 of appropriation Wuqf to take effect after settlor's death Requisites 
 to valid wuqf Undue influence Endowment subject to mortgage Re- 
 vocation Alienation of wuqf property Nominal endowment Aliena- 
 tion subject to trust Mortgage by local custom Lease of wuqf property 
 Transfer of trust Purchaser from trustee Breach of trust Removal 
 of trustee Office of trustee-^ Female may be mutawalli Succession to 
 the office Suits in respect of wuqf property. 
 
 IN this Lecture I shall deal with the English law relat- Religious 
 ing to religious and charitable trusts, the Hindu law on an , d , charU 
 
 t'lblc 
 
 the same subject, and the Mahomedau law of wuqf. The trusts. 
 provisions of Act XX of 1863, an Act to enable the 
 Government to divest itself of the management of religious 
 endowments, will be found in the Appendix. 
 
350 RELIGIOUS AND CHARITABLE TRUSTS. 
 
 LECTURE Charities may be established by charter, or may be placed 
 xn - under the management of individual trustees. A charitable 
 gift is a gift to the general public, and extends to the poor 
 as well as to the rich. 1 
 
 According to English law, all trusts, whether of moveable 
 or immoveable property, for superstitious purposes, come 
 under the class of trusts void as being against the policy 
 of the law. Such gifts are not void by the Common Law, 
 but were first made void by the Statute, 2 by which 
 gifts to superstitious uses then existing were expressly 
 prohibited, such as gifts for prayers and masses for the 
 benefit of the soul. 3 But this Statute does not apply to 
 India. 
 
 Thus a gift for the performance of masses is valid. In 
 Das Merces v. Cones* Norman, J. said : " By the law of 
 England, gifts to superstitious uses appear to be void, as 
 being contrary to the policy of the law, for two reasons : 
 first, because they tend to produce the same losses and 
 inconveniences to the Crown and subjects of the realm, as 
 in cases where lands are aliened in Mortmain, see the 
 preamble of the Statute 23 Hy. VIII, c. 10 ; and, secondly, 
 because the superstitions and errors in Christian religion 
 have been brought into the minds and estimation of men, 
 by reason of their ignorance of their every true and perfect 
 salvation through the death of Jesus Christ, and by devising 
 and phantasying vain hopes of purgatory, and masses 
 satisfactory to be done for those which be departed, which 
 doctrine and vain opinion by nothing more is maintained 
 and upholden than by the abuse of trentals (offices for the 
 dead continuing thirty days or consisting of thirty masses), 
 charities, or other provisions made for the continuance of 
 the said blindness and ignorance. See the preamble of 
 Statute I Ed. VI, c. 14. So in Bacon's Abridgment, title 
 ' charitable uses,' and ' Mortmain ' (D\ it is said, that the 
 king is entitled to such uses ' by force of several Statutes, 
 
 1 Jones f . Williams, Amb., 651 ; Attorney-General v. Aspinall, 2 M. & 
 C., 622 ; Kendall v. Granger, 5 Beav., 300 ; Trustees of the British 
 Museum v. White, 2 S. and S.. 596. 
 
 2 1 Ed. IV, c. 14. 
 
 * West v. Shuttleworth, 2 M. and K., 684 ; Attorney-General v. The 
 Fishmongers' Co.. 5 M. and Cr.. 11 ; Heath i\ Chapman, 2 Drew., 417 ; 
 In re Blundell's Trusts, 30 Beav., 360. 
 
 4 2 Hyde, 65 ; and see Andrews v. Joakim. 2 B. L. R., 0. C.. 148 ; 
 Judah v. Judah, 5 B. L. R., 433 ; Khusal Chand v. Mohadevgiri, 12 Bom. 
 H. C. R., 214. 
 
TRUSTS OF IMMOVEABLE PROPERTY. 351 
 
 and as the head of Church and State, and entrusted by the LECTUBB 
 Common Law to see that nothing is done in maintenance XII 
 or propagation of a false religion.' A law intended for the 
 support and maintenance of the Protestant branch of the 
 Catholic Church, and to discourage the teaching of doc- 
 trines at variance with it, cannot have been intended to be 
 introduced here at a time when the Christian religion was 
 not, and never could have been supposed to be likely to be, 
 the established religion of the country." His Lordship 
 then referred to cases showing that the Statute did not 
 extend to Ireland, and continued : " If such a gift be not 
 void in Ireland, a multo fortiori, it is not void here, where 
 the Crown cannot be supposed to have contemplated, either 
 the end which the English legislature had in view in pass- 
 ing the Statute 14 Ed. VI, or the means by which that 
 end was to be attained. It is clear, that the policy of the 
 law intended to be introduced into this country not only 
 by the Charter of Geo. I, but by all subsequent Charters 
 and Acts, was one of toleration; that the English Govern- 
 ment never considered it as any part of their duty to 
 impose the Protestant religion on their subjects, or in any 
 way to interfere with their religious opinions or practices 
 connected therewith, however erroneous or false .... For 
 the above reasons, I am of opinion that that portion of 
 Common Law which declares gifts to superstitious uses 
 void, does not apply to the gifts of persons born and 
 domiciled in Calcutta." 
 
 In England, devises of immoveable property for chari- Trust of 
 table purposes are void under the Mortmain Act. 1 This aj] p v ,L 
 Statute does not extend to India, as the object for which it perty. 
 was passed was purely political. " I conceive," said Grant, 
 M. R., 2 " that the object of the Statute of Mortmain was 
 purely political, that it grew out of local circumstances, 
 and was meant to have merely a local operation. It was 
 passed to prevent what was deemed a public mischief, and 
 not to regulate, as between ancestor and heir, the power of 
 devising, or to prescribe, as between grantor and grantee, 
 the forms of alienation. It is incidentally only, and with 
 reference to a particular object, that the exercise of the 
 owner's dominion over his property is abridged . . . Framed 
 as the Mortmain Act is, I think it is quite inapplicable to 
 Grenada, or to any other colony. In its causes, its objects, 
 
 1 9 Geo. II, c. 36. * Attorney-General v. Stewart, 2 Mer., 161. 
 
352 
 
 WHAT ARE CHARITABLE PURPOSES. 
 
 Bequests to 
 
 charitable 
 uses. 
 
 LECTURE its provisions, its qualifications, and its exceptions, it is a 
 
 XI *- law wholly English, calculated for the purposes of local 
 
 policy, complicated with local establishments, and incapable 
 
 without great incongruity in the effect, of being transferred 
 
 as it stands into the code of any other country." * 
 
 Persons governed by the English law in this country 
 may, therefore, subject however to the provisions of the 
 Succession Act, 2 create trusts of immoveable property for 
 religious or charitable purposes. 
 
 Section 105 of that Act provides that 
 " No man having a nephew or niece, or any nearer relative, 
 shall have power to bequeath any property to religious or chari- 
 table uses, except by a will executed not less than twelve months 
 before his death, and deposited within six months from its execu- 
 tion in some place provided by law for the safe custody of the 
 wills of living persons." 
 
 And the following illustration is given : 
 
 " A having a nephew makes a bequest by a will not executed, 
 nor deposited as required 
 
 For the relief of poor people ; 
 
 For the maintenance of sick soldiers ; 
 
 For the erection or support of a hospital ; 
 
 For the education and preferment of orphans ; 
 
 For the support of scholars ; 
 
 For the erection or support of a school ; 
 
 For the building or repairs of a bridge ; 
 
 For the making of roads ; 
 
 For the erection or support of a church ; 
 
 For the repairs of a church ; 
 
 For the benefit of ministers of religion ; 
 
 For the foundation or support of a public garden ; 
 
 All these bequests are void." 
 
 Subject to the foregoing limitations, bequests of any 
 property for charitable or religious purposes are valid. 
 
 Charitable purposes are : the relief of aged and impotent 
 people ; the maintenance of sick and maimed soldiers and 
 poor mariners ; schools of learning ; free schools and scholars 
 in universities ; the repair of bridges, ports, havens, cause- 
 ways, churches, sea-banks, and highways ; the education 
 
 1 And see Mayor of Lyons v. East India Co., 1 Moo. T. A., 175 ; Das 
 Merces v. Cones, 2 Hyde, 70 ; Sarkies v. Prosonnomoyee Dossee, I. L. R., 
 6 Calc., 794 ; Yeap Cheah Neo v. Ong Cheng Neo, L. R., 6 P. C., 381. In 
 Broughton v. Mercer, 14 B. L. R., 442, a devise of immoveable property 
 to trustees in trust for hospital purposes was supported as a charitable 
 trust. * X of 1865. 
 
 What are 
 charitable 
 purposes. 
 
WHAT ARE RELIGIOUS PURPOSES. 353 
 
 and maintenance of orphans ; the relief, stock, or mainten- LF.CTCRR 
 ance of houses of correction ; the marriages of poor maids ; XII. 
 the aid and help of young tradesmen, craftsmen, and per- 
 sons decayed ; and the relief or redemption of prisoners or 
 captives. 1 
 
 Besides these, gifts of personal property for the purpose Religious 
 of upholding the doctrines of Dissenters of various deno- P ur P ses - 
 minations, 2 Roman Catholics, 3 and Jews, 4 are valid. The 
 gift may be either for the particular religious objector 
 to a minister as such. 5 So, gifts of funds to be employed 
 in the purchase of bibles and other religious books, 6 for 
 keeping the chimes of a church in repair, for payments 
 to be made to singers in the gallery of a church,' to build 
 an organ gallery in a church, 8 and to keep in repair and 
 ornament a church, 9 are gifts for charitable purposes, and 
 valid. A gift of land or money for the purpose of building 
 a church, or a house, or otherwise for the maintaining 
 and propagating the worship of God, without more, will 
 be considered as a gift for maintaining and propagating 
 the established religion. But if it is clearly expressed, 
 that the purpose is that of maintaining dissenting doc- 
 trines, so long as they are not contrary to law, the Court 
 will execute the trust according to the express intention. 10 
 
 Gifts for the widows and children of seamen of a certain Inhabit . 
 port, 11 to the widows and orphans, 12 or poor inhabitants 13 ants of par- 
 of a certain parish, for the purpose of building and endowing p^ 1 " 
 an almshouse, 14 or hospital, 15 for the use of the inhabitants of 
 
 1 43 Eliz., c. 4. 
 
 2 Attorney-General r. Cock, 2 Ves., 273 ; Shrewsbury t?. Hornby, 
 5 Hare. 406 ; Attorney-General T. Lawes. 8 Hare. 32 ; Thornton v. Howe, 
 8 Jur., N. S., 663 ; 1 Wm. and M. C., 18 ; 55 Geo. III. c. 1GO. 
 
 * Walsh v. Gladstone, 1 Ph.. 290 ; 2 and 3 Will. IV, c. 115. 
 
 4 In re Michel's Trust, 28 Beav., 39 ; 8 and 9 Viet., c. 59, s. 2. 
 
 5 Attorney-General v. Lawes, 8 Hare, 32 ; Thornber t>. Wilson, 3 Drew., 
 245 ; 4 ibid, 350. 
 
 Attorney-General r. Stepney, 10 Ves., 22. 
 ' Turner v. Ogden, 1 Cox, 316. 
 
 8 Adnam v. Cole, 6 Beav., 353. 
 
 9 Hoare r. Osborne, L. R., 1 Eq., 585. 
 
 10 Attorney-General v. Pearson, 3 Mer., 409. 
 
 11 Powell r. Attorney-General, 3 Mer., 48. 
 
 12 Attorney- General r. Comber, 2 S. and S., 93 ; Russell v. Kellett, 
 3 Sm. and G., 264 ; Thompson v. Corby, 27 Beav.. 649. 
 
 11 Attorney-General v. Clarke, Ambl., 422 ; Bishop of Hereford c. 
 Adams, 7 Ves., 324. 
 
 14 Attorney-General v. Tyndall 2 Eden, 207. 
 u Pelham v. Anderson, ibid. 296. 
 
 45 
 
354 
 
 GIFT MUST BE FOR PUBLIC. 
 
 LECTURE 
 XII. 
 
 Improve- 
 ment of 
 particular 
 place. 
 
 Trust for 
 particular 
 classes of 
 
 Educa- 
 tional 
 purposes. 
 
 Gift must 
 be for the 
 jmblic. 
 
 a certain town, 1 and for the improvement of a certain town, 2 
 are gifts for charitable purposes. Such a gift as the last- 
 mentioned one will be construed to mean improvements 
 carried on under statutory powers and not by private 
 persons. 3 So, a gift for the benefit and advantage of the 
 country, 4 or a gift in exoneration of the national debt, 5 
 or for the assistance of literary persons who have not been 
 successful in their career, 6 for the increase and encourage- 
 ment of good servants, 7 for the release of debtors from 
 prison, 8 and for the redemption of slaves, 9 are valid as gifts 
 for charitable purposes. But a bequest for purchasing the 
 discharge of poachers " committed to prison for nonpayment 
 of fines, fees, or expenses under the game laws," was held to be 
 void, as encouraging offences and opposed to public policy. 10 
 
 Again, gifts for the purpose of founding schools, 11 scholar- 
 ships, 12 or lectureships, 13 for the benefit of a particular col- 
 lege, 14 for the advancement and propagation of education and 
 learning in every part of the world, 15 are good charitable 
 gifts. In Beaumont v. Olivera 16 gifts to the Royal Society, 
 which has for its object the improvement of natural know- 
 ledge, and the Royal Geographical Society, the object of 
 which is the improvement and diffusion of geographical 
 knowledge, were held to be good. So gifts to the British 
 Museum, and for the purpose of establishing a perpetual 
 botanical garden, 18 are gifts for charitable purposes. 19 
 
 The gift must be for public purposes. Thus gifts for 
 private purposes, such as keeping up a tomb, 20 a private 
 
 1 Jones v. Williams, Amb., 651 ; Mitford v. Reynolds, 1 Ph., 185 ; 
 Attorney-General v. Bushby, 24 Beav., 299. 
 
 2 Howse v. Chapman. 4 Ves.. 542. 3 Ibid. 
 
 * Nightingale v. Goulburn, 2 Ph., 594. 
 
 4 Newland v. The Attorney-General. 3 Mer., 684. 
 
 Thompson v. Thompson. 1 Coll., 395. 
 
 T Loscombe r. Wintriugham, 13 Beav., 87. 
 
 Attorney-General v. Painter-Stainers Co., 2 Cox, 51. 
 
 * Attorney-General v. The Ironmongers' Co., 2 M. and K., 57G. 
 
 10 Thrupp v. Collett. 26 Beav., 125. 
 
 11 Attorney-General v. Earl of Lonsdale, 1 Sim., 105. 
 
 12 Rex v. Newman, Levinz, 284. 
 
 ls Attorney-General v. Margaret and Regius, Professors, 1 Yern., 54. 
 
 14 Attorney-General v. Tancred. 1 Eden, 10. 
 
 15 Whicker v. Hume. 7 H. L. C., 124. 16 L. R., 4 Ch., 309. 
 
 " The Trustees of the British Museum v. White, 2 S. and S., 594. 
 11 Townley r. Bedwell. 6 Ves., 194. 
 
 19 See the Registration of Societies Act, XXI of 1860, and the Religious 
 Societies Act, I of 1880. post, Appendix. 
 
 20 Ante. p. 49 ; and see In re Williams, L. R., 5 Ch. Div., 735 ; In re 
 Birkett, L. R., 9 Ch. Div., 576. 
 
GIFT MUST BE CERTAIN. 355 
 
 museum, 1 for the benefit of a private company,* or to be LECTURB 
 given in private charity, 3 are void if they infringe the rule 
 against perpetuities. 
 
 A trust for charitable purposes must not be uncertain ^ l " t . b 
 and indefinite. Thus, a gift to executors, in trust to dispose 
 of it at their pleasure, either for charitable or public pur- 
 poses, or to any person or persons, in such shares as they 
 should think fit, is too general and undefined to be exe- 
 cuted by the Court. 4 
 
 In Morice v. The Bishop of Durham, 6 the leading case Morice . 
 on the subject, a bequest in trust for such objects of bene- Durham* 1 
 volence and liberality as the trustee in his own discretion 
 should approve, was held to be void. " That it is a trust, " 
 said Grant, M. R., " unless it be of a charitable nature, too 
 indefinite to be executed by this Court, has not been, and 
 cannot be, denied. There can be no trust over the exercise 
 of which this Court will not assume a control; for an 
 uncontrollable power of disposition would be ownership, 
 and not trust. If there be a clear trust, but for uncertain 
 objects, the property, that is the subject of the trust, is 
 undisposed of ; and the benefit of such trust must result 
 to those to whom the law gives the ownership in default 
 of disposition by the former owner. But this doctrine 
 does not hold good with regard to trusts for a charity. 
 Every other trust must have a definite object. There must 
 be somebody in whose favour the Court can decree per- 
 formance. But it is now settled, upon authority which it 
 is too late to controvert, that, where a charitable purpose 
 is expressed, however general, the bequest shall not fail on 
 account of the uncertainty of the object; but the particu- 
 lar mode of application will be directed by the King in 
 some cases, in others by this Court. 
 
 " Then is this a trust for charity ? Do purposes of liber- 
 ality and benevolence mean the same as objects of charity ? 
 That word, in its widest sense, denotes all the good affec- 
 tions men ought to bear towards each other; in its most 
 restricted and common sense, relief of the poor. In neither 
 of these senses is it employed in this Court. Here its 
 
 1 Thomson v. Shakespear, 1 D. F. J., 399. 
 
 7 Attorney-General v. Haberdashers Co.. 1 M. and K., 420. 
 
 3 Ommaney v. Butcher. 1 T. and R.. 260. 
 
 4 Vezey r. Jamson. 1 S. and S.. 69 ; Fowler r. Fowler. 33 Beav., 61 ; 
 In ie Jarman's Estate, Leavers r. Clayton, L. R., 8 Ch. Div., 684. 
 
 9 Ves.. 899. 
 
GIFT MUST BE CERTAIN. 
 
 LECTURE signification is derived chiefly from the Statute of Elizabeth 
 (43 Eliz., c. 4). Those purposes are considered charitable 
 which that Statute enumerates, or which by analogies are 
 deemed within its spirit and intendment ; and to some 
 such purpose every bequest to charity generally shall be 
 applied. But it is clear, liberality and benevolence can 
 find numberless objects not included in that Statute in the 
 largest construction of it. The use of the word ' chari- 
 table' seems to have been purposely avoided in this will, in 
 order to leave the Bishop the most unrestrained discretion. 
 Supposing the uncertainty to be no objection to its vali- 
 dity, could it be contended to be an abuse of the trust 
 to employ this fund upon objects which all mankind 
 would allow to be objects of liberality and benevolence, 
 though not to be said, in the language of this Court, to be 
 objects also of charity ? By what rule of construction 
 could it be said, all objects of liberality and benevolence are 
 excluded which do not fall within the Statute of Elizabeth ? 
 The question is, not whether he may not apply it upon 
 purposes strictly charitable, but whether he is bound so to . 
 apply it ? I am not aware of any case in which the 
 bequest has been held charitable, where the testator has 
 not used that word to denote his general purpose, which 
 this Court has determined to be charitable in its nature." l 
 
 In Johnston v. Swann? Jemmit v. Verril, 3 Waldo v. 
 Coley? and Horde v. The Earl of Suffolk, 5 vague bequests 
 were upheld. But with regard to these cases Lord 
 Cottenham, L. C., in Ellis v. Selby? said : " Johnston v. 
 Swann and Jemmit v. Verril are directly at variance 
 with the other cases on the same subject. Waldo v. Coley 
 was determined before the decision, that a private charity 
 could not be carried into effect by this Court; 7 that explains 
 the case, and reconciles it with the other cases. In Horde 
 v. The Earl oj Suffolk, Sir John Leach took no notice of 
 the objection that a private charity couldnot be carried into 
 effect, although that objection appears to have been urged." 
 Instances So a gift to a corporation " for a purpose," where no pur- 
 " P ose ' 1S expressed, is void for uncertainty. 8 Where a testator 
 
 1 And see Williams v. Kershaw. 5 C. and F., Ill ; Ellis v. Selby, 1 M. 
 and C., 286. 
 
 2 Arab., 585 (?i). * 16 Ves., 206. " 1 M. and C., 292. 
 1 Ibid. * 2 M. and K., 59. ' See ante, p. 354. 
 
 8 Corporation of Gloucester v. Osborn, 1 H. L. C., 272; S. C., nom. Mayor 
 of Gloucester v. Wood, 3 Hare, 131. 
 
CY PRES. 357 
 
 bequeathed a sum of money to the trustees of a chapel LECTURE 
 " to be appropriated according to statement appended," and ^*- 
 no statement was appended, it was held, that the Court 
 could not presume a charitable object in the bequest : and 
 if not charitable, the object was so indefinite that the gift 
 must fail. 1 But a bequest for such charities and other pub- 
 lic purposes as lawfully might be " in a certain parish," is 
 good, it being a gift to trustees to be laid out in charities 
 for the benefit of the parish. 2 
 
 Parol evidence is admissible to explain a latent ambi- 
 guity in the description of a charity in a will. 3 
 
 In construing a will containing charitable bequests, the Principles 
 Court must not lean to the side of avoiding the will in jJ^JaL* 
 order to gain money for the family, nor, on the other hand, 
 strain to support the will to gain money for the charity. 4 
 But when a charitable bequest is capable of two construc- 
 tions, one of which would make it void, and the other which 
 would render it effectual, the latter must be adopted. 5 
 
 In construing a will relating to a charity of great anti- 
 quity, contemporaneous usage ma} 7 be referred to. 6 
 
 If a testator has manifested a general intention to give Cy pret. 
 to charity, the failure of the particular mode in which the 
 charity is to be effectuated will not destroy the charity ; 
 but the Court will substitute another mode of devoting the 
 property to charitable purposes, though the formal inten- 
 tion as to the mode cannot be accomplished, or, as it is 
 called, will execute the testator's intention cy pr&s, and for 
 this purpose will direct a scheme to be franiecL 7 The doc- 
 trine of cy pr&s means, that where there is a general chari- 
 table purpose for an object mentioned by a testator of such 
 a kind that the Court can satisfy itself that some other 
 object can be found in a reasonable degree nearly answer- 
 ing such charitable purpose, then there shall be an applica- 
 tion in favour of that object. 8 The jurisdiction of the Court 
 to act on the cy pres doctrine upon the failure of a specific 
 charitable bequest arises whether the residue be given to 
 
 1 Aston v. Wood, L. R., 6 Eq.. 419. 
 
 * Dolau r. Macdermott, L. R., 3 Ch., 676 ; and see Pocock c. Attorney- 
 General. L. R.. 3 Ch. Div., 342. 
 
 3 lit re Kilvert's Trusts. L. R., 12 Eq.. 183 ; ib., 7 Ch , 170. 
 
 4 Dolan v. Macdermott, L. R., 3 Ch.. 678, per Lord Cairns. 
 
 5 Bruce v. The Presbytery of Deer, L. R., 1 Sc. A pp., 96. 
 
 6 Attorney-General r. Sidney Sussex College, L. R., 4 Ch., 722. 
 1 Moggridge v. Thackwell. 7 Ves.. 69. 
 
 Russell v. Kellett, 3 Sm. and G., 2G4. per Stuart. V.C. 
 
358 
 
 ALTERING SCHEME OF CHARITY. 
 
 LECTURE 
 XII. 
 
 Altering 
 scheme. 
 
 Gift for 
 charitable 
 purposes 
 generally. 
 
 Particular 
 
 purpose 
 
 failing, 
 
 where gift 
 
 is to 
 
 charity 
 
 generally. 
 
 charity or not, unless upon the construction of the will a 
 direction can be implied that the bequest, if it fails, should 
 go to the residue. 1 
 
 The Court has power to alter from time to time the 
 scheme of a charity which has been settled by a previous 
 decree of the Court, if the circumstances require it. 2 But 
 the Court will not subsequently change the application, 
 even to a purpose identical with its original object, unless 
 satisfied that the proposed application will be as beneficial 
 as the existing one. 3 Apparently, when a scheme has once 
 been settled for the application of a charitable fund, an 
 alteration in it can only be made with the consent of the 
 persons authorized to act under s. 539 of the Civil Proce- 
 dure Code. 4 
 
 A trust for " charitable and pious uses " generally, 5 or 
 " to and amongst the different institutions," to which be- 
 quests have been given ; " or to any other religious institu- 
 tion as my trustees may think proper," 6 or for " the poor," 7 
 is good. Where a testator directed the residue of his per- 
 sonal estate to be divided for certain charitable purposes 
 mentioned by him, "and other charitable purposes as I do 
 intend to name hereafter," and died without naming any 
 other charitable purposes, it was held, that there was a 
 disposition of the residue in favour of charity, to be carried 
 into effect by the Court, having regard to the objects parti- 
 cularly pointed out by the Court. 8 
 
 Where a charitable gift is made for particular pur- 
 poses which fail, and the gift is to charity generally, 
 the Court will execute the intention of the donor cy prba. 
 " When," said Lord Brougham, 9 " a testator gives one 
 charitable fund to three several classes of objects, unless 
 he excludes by most express provisions the application 
 of one portion to the purpose to which the others are 
 destined, it is clear that the Court may thus execute his 
 intention in the event of an impossibility of applying 
 that portion to its original destination. The character 
 
 1 Mayor of Lyons v. The Advocate-General of Bengal, L. Tl., 3 I. A., 32. 
 
 2 Attorney-General v. St. John's Hospital. L. R., 1 Ch., 92. 
 
 3 Attorney-General v. Stewart. L. R., 14 Eq., 17. 
 
 4 Ibid. * Attorney-General v. Herrick, Amb., 712. 
 
 6 Wilkinson v. Lindgren. L. R.. 5 Ch.. 570. 
 
 7 Attorney-General v. Ranee, cited Ambl.. 422. 
 
 9 Mills v. Farmer, 1 Mer.. 55. See Gangabai v. Thava Mulla 1 Bom, 
 O. C., 71. 
 9 Attorney-General r. The Ironmongers Co., 2 M. & K., 586. 
 
FAILURE OF OBJECT OF TRUST. 359 
 
 of charity is impressed on the whole fund ; there is good LECTURE 
 sense in presuming that, had the testator known that XIL 
 one object was to fail, he would have given its appro- 
 priated fund to the increase of the funds destined to the 
 other objects of his bounty ; and there is convenience in 
 acting as he would himself have done. This is the foun- 
 dation of the doctrine of cy pr&s." And, therefore, gifts to 
 charities which have ceased to exist at the time of the 
 testator's death, 1 or subsequently fail by reason of the 
 objects of the bounty no longer existing, as where a fund 
 was given for ransoming British slaves in Turkey and 
 Barbary, 2 will be administered cy prh? So, if a sum is p art j cu i ar 
 devoted to a charitable purpose, but the particular charity charity not 
 to be benefited is not so described as that it can be ascer- de!(cribed ' 
 tained, the Court will direct it to be applied to a charity 
 of a similar nature. 4 Again, where a testator gives a sum 
 of stock to trustees, and shows a clear intention to dispose 
 of the whole of the dividends for the benefit of charitable 
 institutions, and does in fact specify some of them and 
 the yearly sums to be paid to them, but leaves blanks for 
 the names of others and for the sums to be paid to them, 
 the Court will carry out the testator's intention cypr&s, and 
 will frame a scheme for the application of the remaining 
 dividends. 5 Where property was given to the Kent 
 County Hospital, and there was no hospital having pre- 
 cisely that name, it was held, that a general hospital 
 must be presumed to have been intended, and the Kent 
 County Ophthalmic Hospital could not take the legacy ; but 
 that it must be divided between two hospitals which to- 
 gether supplied the place of a general county hospital. 6 
 
 In the foregoing cases, the gifts were to charities gener- Failure of 
 ally, the fund had the character of chanty impressed upon ^here no 
 it, and the Court, therefore, carried out the general inten- intention 
 tion of the testator. But there is another class of cases chnr'ity * 
 where the testator has not shown an intention to give to generally, 
 charity generally, but only to benefit some pai'ticular 
 charity. And if such object fails, the fund will not be 
 
 1 Hayter v. Trego, 5 Russ., 113 ; Marsh v. Attorney-General, 2 J. & 
 
 61. 
 
 Attorney-General v. Ironmongers Co., 2 M. & K., 576 ; Cr. & Ph., 
 ) ; 10 C. & F.. 908 ; and see Attorney-General v. Glynn, 12 Sim., 84. 
 
 3 In re Prison Charities, L. R.. 16 Eq., 129 ; Attorney-General . 
 Hankey. ib., HO () 
 
 4 Simon . Barber. 5 Rus3.. 112. 5 Pieschell r. Paris, 2 S. k S., 384. 
 In re Alchin's Trust, L. R., 14 Eq., 230. 
 
 H.. 61. 
 
 2 
 
 208 
 
360 APPORTIONMENT OF FUND. 
 
 LECTURE applied cy pres, but there will be an intestacy, and it will 
 XII. fall into the residue. " Now," said Kindersley, V. C., l 
 " there is a distinction well settled by the authorities. 
 There is one class of cases, in which there is a gift to 
 chanty generally, indicative of a general charitable pur- 
 pose, and pointing out the mode of carrying it into effect ; 
 if that mode fails, the Court says the general purpose of 
 charity shall be carried out. There is another class in 
 which the testator shows an intention not of general 
 charity, but to give to some particular institution ; and 
 then if it fails, because there is no such institution, the 
 gift does not go to charity generally." 2 
 
 Again, if the Court has no power to enforce the execution 
 of the proposed trust, nor to settle a scheme for the admi- 
 nistration of the charity cy pres, there will be an intes- 
 tacy, and the fund will fall in to the residue. Thus, where 
 a testator gave certain funds to the President and Vice- 
 President of the United States, and the Governor of Penn- 
 sylvania, upon trust, to build and endow a college for the 
 instruction of youth in the State of Pennsylvania, and 
 directed that moral philosophy should be taught therein, 
 and a professor should be engaged to inculcate and advocate 
 the natural rights of the black people of every clime and 
 country until they be restored to an equality of rights 
 with their white brethren throughout the Union, and the 
 trustees disclaimed the gift, it was held that the trust failed. 3 
 
 A friendly society is not a charitable institution, and 
 therefore the doctrine of cy pres will not, on the society 
 being voluntarily dissolved, be applied to a bequest made 
 to it in aid of its funds ; but the same will fall into the 
 testator's residuary estate. 4 
 
 If a fund is given to trustees upon trust to divide 
 
 meni'df "" between certain charities and legatees, and the trustees do 
 
 fund. n ot apportion it as directed, the Court will divide it between 
 
 the charities and legatees equally, on the principle that 
 
 ' equality is equity.' 5 In Down v. Worrall, 6 a testator 
 
 1 Clark r. Taylor, 1 Drew., 644. 
 
 2 See also Cherry v. Mott, 1 M. and Cr., 123 ; Russell v. Kellett, 
 3 Sm. and G.. 264 ; Langford v. Gowland, 3 Giff., 627 ; Fisk v. Attorney- 
 General, L. R., 4 Eq., 521 ; Clephane v. The Lord Provost of Edinburgh, 
 L. R., 1 Sc. App. ? 417 ; In re Maguire, L. R., 9 Eq., 632. 
 
 3 New v. Bonaker, L. R., 4 Eq., 655. 
 
 4 In re Clark's Trust, L. R., 1 Ch. Div., 497. 
 
 * Doyley r. Doyley and Attorney-General v. Doyley, 7 Ves.. 58 (ji) ; Izod 
 . Izod, 32 Beav., 242. 1 M. & K., 561. 
 
GIFT OVER ON FAILURE OF OBJECT. 361 
 
 gave a fund to trustees, upon trust, to settle such part at LKCTURB 
 their discretion either for pious and charitable purposes 
 or otherwise for the benefit of the testator's sister and her 
 children ; and it was held, that this was a personal trust 
 which a representative of the surviving trustee could not 
 execute, and that a sum which remained at the decease 
 of the surviving trustee, and which had not been applied 
 either to charitable purposes or for the benefit of the 
 testator's sister and her children, was undisposed of, and 
 belonged to the testator's next-of-kin. The case, apparent- 
 ly, conflicts with those referred to above. But in Salus- 
 \)u.ry v. Denton?- Wood, V. C., pointed out that the case 
 was distinguishable, saying, " It is one thing to direct a 
 trustee to give a part of a fund to one set of objects, and 
 the remainder to another, and it is a distinct thing to direct 
 him to give ' either ' to one set of objects, ' or ' to another. 
 Dovon v. Worrall was a case of the latter description. 
 There the trustees could give all to either of the objects. 
 This is a case of the former description. Here the trustee 
 was bound to give a part to each." 
 
 Where a single fund is given for several charitable 
 objects, and one of them is bad, the principle on which 
 the Court acts is, that if it can be ascertained what are the 
 proper proportions to be attributed to the several objects, 
 it directs an inquiry on the subject ; but if from the nature 
 of the gift it appears impracticable to fix the proportions, 
 the Court divides the fund equally between the different 
 objects. 2 So, if a fund is given to be applied to certain 
 charitable objects in certain proportions and the value of 
 the property increases, the accretions will be apportioned 
 among the different objects of the charity pro ratd? 
 
 If property is given for the benefit of a particular 
 charity, and subsequently the charity is severed, as in the 
 case of a gift for the repairs of a church in a particular 
 parish, which is afterwards divided into two parishes, the 
 gift cannot be apportioned. 4 
 
 Where a fund is given for charitable purposes with a Gift over, 
 gift over in case any of the purposes should be void or 
 fail, the gift over is good. 5 
 
 1 3 K. & J., 539. * Hoare v. Osborne, L. R., 1 Eq., 588. 
 
 9 Attorney-General v. Marchant, L. R.. 3 Eq.. 424. 
 In re Church Estate Charity Wandsworth, L. R.. 6 Ch.. 296. 
 6 De Theminines v. De Bonnestal, 6 Russ., 288 ; Hall v. Warren, 9 H. 
 L. C., 420. 
 
 46 
 
3G2 
 
 BREACH OF TRUST. 
 
 LECTURE A gift to a charity in a foreign country is good, though 
 XII> the Court cannot see to the administration of the charity. 1 
 Mi. (ford v. Reynolds? a testator bequeathed the residue 
 
 Charity in 
 
 foreign 
 
 country. 
 
 Breach of 
 trust. 
 
 of his estate " to the Government of Bengal, to be applied 
 to charitable, beneficial, and public works, at and in the 
 city of Dacca in Bengal, for the exclusive benefit of the 
 native inhabitants, in such manner as they and the Govern- 
 ment might regard as most conclusive to that end," and it 
 was held that the bequest was good. 
 
 The Court has, in the case of charities, jurisdiction to 
 redress a breach of trust, where the objects of the founder 
 have been prevented or neglected. It has also authority 
 to direct a scheme in order to enforce the more complete 
 attainment of those objects. It has power and authority, 
 when the objects contemplated by the founder cannot be 
 carried into effect, to direct the application of the revenues 
 of the charity to promote objects in accordance with the 
 spirit of the original foundation the actual compliance 
 with which has become impossible. But it has no autho- 
 rity to vary the original foundation and to apply the 
 charity estates in a manner which it conceives to be more 
 beneficial to the public, or even such as the Court may 
 surmise that the founder would himself have contemplated 
 could he have foreseen the changes which have taken 
 place by the lapse of time. 3 For instance, a fund given 
 for purpose of establishing a hospital in a particular town 
 cannot be applied towards lighting and paving the town. 4 
 So a gift to the poor of a certain parish cannot be given 
 to the poor of another parish. But a gift " for the relief 
 of the poor" may be applied to building a schoolhouse and 
 educating the poor of the parish, 6 or in aid of the poor rates, 
 and so in relief of the parish. 7 So, a gift to be applied 
 towards finding a schoolmaster, and for the pains of such 
 master, may be applied towards rebuilding and repairing the 
 schoolroom and schoolhouse, because these are necessary. 8 
 
 1 Attorney-General v. Sturge, 19 Beav.. 597. 2 1 Ph., 185. 
 
 3 Attorney-General v. Sherborne School, 18 Beav., 25G. 
 
 4 Attorney-General v. Kell. 2 Beav.. 57 ~>. 
 
 5 Attorney-General v. Brandreth, 2 Y. & C. C. C., 200. 
 
 6 Wilkinson v. Malin, 2 Tyr., 544. 
 
 7 Attorney-General v. Blizard, 21 Beav., 233. 
 
 8 Attorney-General v. Mayor of Stamford, 2 Swanst.. 592. As to funds 
 given for a particular sect, see Attorney-General v. Bance. L. R., (i Kq., 
 563 ; or religious worship, Attorney-General r. Pearson, 3 Mer., 4UU ; 
 Foley v. Wontner, 2 J. & W., 247. 
 
PROCEDURE. 363 
 
 In England, if the trustees of a charity are guilty of a LECTUBK 
 breach of trust, tlie mode of obtaining redress is by way XI1 - 
 of information in the name of the Attorney-General at the ModTof 
 instance of some person who is called a ' relator.' The procedure 
 sovereign is pawns patriee, and it is the duty of the redress" 1 
 Attorney-General to see that justice is administered to every 
 subject. Relators need not be personally interested. They 
 are required merely because the Attorney-General, pro- 
 secuting a suit in the name of the Crown, would not be 
 liable to costs, and unless some persons were made res- 
 ponsible, proceedings might be instituted very oppressive 
 to individuals. 1 
 
 In this country the mode of redress is regulated by the Civil 
 Civil Procedure Code, 2 which contains the following c ^ e D 
 provisions: s.539. 
 
 " In case of any alleged breach of any express or construc- 
 tive trust created for public charitable purposes, or whenever the 
 direction of the Court is deemed necessary for the administration 
 of any such trust, the Advocate-General acting ex officio, or two 
 or more persons having a direct interest in the trust, and 
 having obtained the consent in writing of the Advocate-General, 
 may institute a suit in the High Court or the District Court 
 within the local limits of whose civil jurisdiction the whole or 
 siny part of the subject-matter of the trust is situate, to obtain a 
 decree 
 
 (a) appointing new trustees of the charity ; 
 
 (6) vesting any property in the trustees of the charity ; 
 
 (c) declaring the proportions in which its objects are entitled ; 
 
 (d) authorizing the whole or any part of its property to be let, 
 sold, mortgaged, or exchanged ; 
 
 (e) settling a scheme for its management ; or granting such 
 further or other relief as the nature of the case may require. 
 
 The powers conferred by this section on the Advocate-General 
 may, outside the Presidency-towns, be exercised also by the 
 Collector or by such officer as the Local Government may appoint 
 in this behalf." 
 
 The Advocate-General is not a necessary party to a suit 
 brought by the managers of the temples and endowments 
 of a "particular sect, to have a will bequeathing property 
 for the purposes of the temples and endowments construed, 
 for a declaration of the plaintiffs' rights, and to have 
 
 1 Lewin, 7th Edn., 790. 
 
 2 Act X of 1877, s. 53'J, as amended by Act XII of 1879, s. 82. 
 
 
364 ACCOUNT. 
 
 LECTTTRE property dedicated by the will to religious purposes ascer- 
 ^ II< tained and secured, though it is desirable that such suits 
 should be brought only with his consent or by leave of 
 the Court. 1 
 
 Worshippers or devotees of an idol are entitled to bring 
 a suit, complaining of a breach of trust with reference to 
 the funds or property belonging to the idol or appendant 
 to its temple. But it is doubtful whether this section is 
 applicable to the devasthdn of an idol or temple, dedicated 
 merely to the purposes of such idol or temple. 2 
 
 The representatives of a testator who has created trusts 
 for religious or charitable purposes, in which the repre- 
 sentatives are not personally interested, may institute 
 proceedings to have abuses in the trust rectified, there 
 being no officer in this country who has such power of 
 enforcing the due administration of religious or charitable 
 trusts by information at the relation of some private indi- 
 vidual as is possessed by the Attorney-General in England. 3 
 Such a suit should not be admitted unless the plaintiff 
 gives security for costs. 4 
 
 The Vatandar Joshi of a village has the right to recover 
 pecuniary damages from a person who has intruded upon 
 his office and received fees properly payable to him. But 
 the Court will not grant any injunction against such 
 intruder, which would have the effect of forcing upon any 
 section of the community the services of a priest whom 
 they are un will ing to recognize, and forbidding them to em- 
 ploy a priest whom they are willing to recognize, and 
 forbidding them to employ a priest whose ministrations 
 they desire. 5 
 
 Liability Trustees of charities must account in the same manner 
 
 of trustees as ordinary trustees. Limitation will not run against them 
 
 to account. j n ^} ie case o f an express trust. 6 But the misapplication 
 
 of the funds may have been going on a great length of 
 
 time, and then the Court may set a limit to the period over 
 
 which the account is to be taken. "It does not (olio vv," 
 
 1 Panchcowrie Mull v. Chumroolall, I. L. R., 3 Calc., 563. See also 
 Advocate-General r. Vishvanath Atmaram. 1 Bom.. Appx., ix. As to costs 
 of the Attorney-General upon making an application in the matter of a 
 charity, see In re Dulwich College. L. R.. 15 Eq., 294. 
 
 2 Radhahai Kom Chimnaji Sail r. Chimnaji Bin Ramji Sali, I. L. R., 
 3 Bomb.. 27. 
 
 1 Brojomohun Doss v. Hurrololl Doss, I. L. R., 5 Calc., 750. 
 
 Ibid. 
 
 Rajah Valad Shivapa r. Krishna Chat, I. L. R., 3 Bom., 232. 
 
 See ante, p. 186. 
 
NEW TRUSTEES. 365 
 
 said Sir T. Plnmer, M. R., 1 " that relief will be given after a LECTURE 
 great length of time, it being the constant course of Courts XI1 - 
 of Equity to discourage stale demands. Even in cases 
 of fraud, in which, if recent, there would have been no 
 doubt, lapse of time has induced the Courts to refuse their 
 interference. In case of chanties, this principle has often 
 been acted on when there has been a long period during 
 which a party has, under an innocent mistake, misapplied 
 a fund from the laches and neglect of others, that is, from 
 no one of the public setting him right ; and when the 
 accounts have in consequence become entangled, the Court, 
 under its general discretion, considering the enormous 
 expense of the enquiries, the great hardship of calling upon 
 representatives to refund what families have spent, acting 
 upon the notion of its being their property, has been in the 
 habit, while giving relief, of fixing a period to the account." 2 
 
 Contemporaneous usage may be referred to, and the 
 Court will not assume a long series of breaches of trust 
 to have been committed. 3 
 
 If the trustees have been acting under a mistake, the 
 Court will not call back any disbursements made before 
 the commencement of the proceedings, or before the trustees 
 had notice that their dealings were to be examined into. 4 
 
 If the instrument creating a charitable trust does not New trus- 
 contain provisions for the appointment of new trustees, tees ' 
 the Court will direct an inquiry as to who are proper 
 persons to be appointed, and will make the appointment. 5 
 
 The " Religious Societies Act of 1880 " 6 provides, 7 that New trus- 
 " when any body of persons associated for the purpose of ^1^1 f or 
 maintaining religious worship has acquired, or hereafter maintain- 
 shall acquire, any property, and such property has been, or p|* u r s e w ~ r _ 
 hereafter shall be, vested in trustees in trust for such body, ship, 
 and it becomes necessary to appoint a new trustee in the 
 place of, or in addition to, any such trustee or any trustee 
 appointed in the manner hereinafter prescribed, and no 
 manner of appointing such new trustee is prescribed by 
 any instrument by which it was so vested, or by which the 
 trusts on which it is held have been declared, or such new 
 
 Attorney-General r. Mayor of Exeter, Jac., 448. 
 Attorney-General r. Sidney Sussex College, L. R.. 4 Ch., 722. 
 As to the periods for which the account may be carried back, see 
 Lewin, 7th Edn.. 798. 
 
 See Lewiu, 799. Act I of 1880. 
 
 Davis r. Jeukiua, 3 V. and B., 151. ' Section 2. 
 
366 
 
 NEW TRUSTEES. 
 
 LECTURE 
 XII. 
 
 Memoran- 
 dum of ap- 
 pointment. 
 
 Vesting. 
 
 Appoint- 
 ment of 
 (Mlieiul 
 Trustee to 
 charitable 
 trust. 
 
 trustee cannot for any reason be appointed in the manner 
 so prescribed, such new trustee may be appointed in such 
 manner as may be agreed upon by such bod} 7 , or by a 
 majority of not less than two-thirds of the members of 
 such body actually present at the meeting at which the 
 appointment is made." 
 
 Section 3 provides, that the appointment shall be record- 
 ed in a memorandum under the hand of the Chairman, and 
 registered. 
 
 Section 4 provides, that " when any new trustees have 
 been appointed, whether in the manner prescribed by any 
 such instrument as aforesaid, or in the manner hereinbefore 
 provided, the property subject to the trust shall forthwith, 
 notwithstanding anything contained in any such instru- 
 ment, become vested, without any conve^vance or other 
 assurance, in such new trustees and the old continuing 
 trustees jointly, or if there are no old continuing trustees, 
 in such new trustees soleh 7 , upon the same trusts and with 
 and subject to the same powers and provisions, as it was 
 vested in the old trustees." And s. 5 saves any existing 
 modes of appointment and conveA'ance. 
 
 The Official Trustees' Act l provides, that " if any person 
 shall be about to grant, assign, or settle any property, 
 moveable or immoveable, of what nature or kind soever, 
 upon or subject to any trust, whether for a charitable pur- 
 pose or otherwise, it shall be lawful for such person, with 
 the consent of the Official Trustee, to appoint him, b\ T the 
 deed creating the trust, to be the trustee of such settle- 
 ment ; and upon such appointment the property so granted, 
 assigned, or settled shall vest in such officer and his suc- 
 cessors in office, and shall be held by him and them upon 
 the trust declared and contained in the said deed. Pro- 
 vided always, that the consent of the Official Trustee shall 
 be recited in the said deed, and that the deed shall be duly 
 executed by the Official Trustee : provided also, that no 
 trust for any religious purpose shall ever be held by the 
 Official Trustee, under this or any other section of this 
 Act." 
 
 And s. 10 of the Act provides, that " if any property 
 is subject to a trust, whether for a charitable purpose 
 or otherwise, and there shall be no trustee willing to act or 
 capable of acting in the trusts thereof, who is within the 
 
 1 XVII of 1866, s. 8. 
 
VISITORS OF CHARITY. 3G7 
 
 local limits of the ordinary or extraordinary original civil LECTURE 
 jurisdiction of the High Court, or if property is subject to xu - 
 a trust, and all the trustees, or the surviving or continuing 
 trustee, and all the persons beneficially interested in the 
 said trust shall be desirous that the Official Trustee shall be 
 appointed in the room of such trustees or trustee, then, and 
 in any such case, it shall be lawful for the High Court, on 
 petition, and with the consent of the Official Trustee, to 
 appoint the Official Trustee to be the trustee of such pro- 
 perty : and upon such appointment such property shall 
 vest in the Official Trustee and his successors in office, and 
 shall be held by him and them upon the same trusts as the 
 same were held previous to such appointment." 
 
 Section 45 of the Trustee Act l provides, that, in cases Vesting 
 to which English law is applicable, " it shall be lawful P r P ert . v j n 
 for the High Court to exercise the powers herein conferred charity. 
 for the purpose of vesting any immoveable property, stock, 
 Government securities, or thing in action, in the trustee or 
 trustees of any charity or society, over which charity or 
 society the High Court would have jurisdiction upon suit 
 duly instituted, whether such trustee or trustees shall have 
 been duly appointed by any power contained in any deed 
 or instrument, or by the decree of the said Court, or by 
 order made upon a petition to the said Court." 
 
 AVhen a charity has been established by charter, the visitors, 
 visitors are the founder and his heirs, 2 and failing them, 
 the Crown. 3 
 
 It is the duty of the visitors to regulate and control the Controlling 
 management of the charity. And with this duty the revenues of 
 Court will not interfere, though it will interfere with the c 
 management of the revenues of the charity. " There is 
 nothing better established," said Lord Commissioner Eyre, 4 
 " than that this Court does not entertain a general jurisdic- 
 tion or regulate and control charities established by charter. 
 There the establishment is fixed and determined ; and the 
 Court has no power to vary it. If the governors estab- 
 lished for the regulation of it are not those who have 
 the management of the revenue, this Court has no 
 
 1 XVII of 1866. 
 
 2 Attorney-General v. Gaunt. 3 Sw., 148 (w). 
 
 3 Attorney-General r. Dixie, 13 Ves., 519, 533 ; In re Queen's College, 
 Cambridge. Jac.. 1. 
 
 4 Attorney-General v. Governors of the Foundling Hospital, 2 Yes. J., 
 47. 
 
368 SUBSEQUENT GIFT. 
 
 LECTURE jurisdiction ; and if it is ever so much abused, as far as 
 XII< respects the jurisdiction of this Court, it is without remedy; 
 but if those established as governors have also the manage- 
 ment of the revenues, this Court does assume a juris- 
 diction of necessity, so far as they are to be considered 
 as trustees of the revenue. The result is, this Court must 
 not hastily take upon itself to interfere with those who 
 have by charter, or by Act of Parliament, the whole control 
 over the charity. But where, having also the manage- 
 ment of the revenues, tliey are abusing their trust, the 
 Court has jurisdiction." 1 " As to the revenue it is quite 
 clear," said Lord Eldon, 2 "that where there is a local 
 visitor as to the conduct and management of the school 
 if in the original instrument a trust is expressed as to the 
 application of the revenue, this Court has jurisdiction to 
 compel a due application." 3 " Where there is a clear and dis- 
 tinct trust," said Rornilly, M. R., 4 " this Court administers 
 and enforces it as much where there is a visitor as where 
 there is none. This is clear, both on principle and autho- 
 rity. The visitor has a common law office and common 
 law duties to perform, and does not superintend the per- 
 formance of the trust which belongs to the various officers 
 which he may take care to see are properly kept up and 
 appointed. It is the duty of the Court to see that the 
 trusts are properly performed, notwithstanding that there 
 may be a special or a general visitor." 
 
 Subsequent If a subsequent donor gives property to the charity 
 gift. without a declaration of a special trust, it will fall under 
 
 the general Statutes and rules of the charity, and be regu- 
 lated with the rest of its property. 5 
 
 Purchaser The rule that a purchaser without notice from a pur- 
 
 witi.out chaser with notice of a breach of trust is not liable, does 
 
 purchaser no * a PP^y m ^e case ^ a charity, and in such a case the 
 
 withnotice. purchaser is bound by the claim of the charity. In other 
 
 respects the principles of equity as to the doctrine of 
 
 notice are applicable to charities in the same manner as 
 
 between private persons. 6 
 
 1 And see Attorney-General r. Magdalen College, 10 Beav., 402 ; Attor- 
 ney-General v. Archbishop of York, 2 R. & M., 461. 
 9 Ex jmrto Berkh&mpstead Free School, 2 V. & B., 138. 
 
 * And see Attorney-General v. Browne's Hospital, 17 Sim., 156. 
 
 4 17 Beav.. 466. 
 
 5 Green v. Rutherforth, 1 Yes., 473. 
 
 Lewin, 7th Edn., 7bO. 
 
RELIGIOUS TRUSTS AMONG HINDUS. 369 
 
 Trustees of charities in England could not, before the LECTUBK 
 restrictions which have been imposed upon them by Sta- XIL 
 tute, have made an absolute disposition of the trust-estate. Alienation 
 But there was no positive rule, that in no instance could of charity 
 an absolute disposition be made, for then the Court itself estates ' 
 could not have authorized such an act a jurisdiction 
 which it is acknowledged has, from time to time, been 
 exercised in special cases. " I do not doubt," said Wigram, 
 V. C., 1 " of the existence of this power in the Court : the 
 trustees have the power to sell at law, they can convey 
 the legal estate, but it is only a Court of Equity that can 
 recall the property, and if that Court should sanction a 
 .sale, it would be bound to protect the purchaser." The 
 true principle was, that an absolute disposition was then 
 only to be considered a breach of trust when the proceed- 
 ing was inconsistent with a provident administration of 
 the estate for the benefit of the charity. And the trans- 
 action was strongly assumed to he improvident as against a 
 purchaser until he had established the contrary. 2 The 
 principles above stated apply here, as the Charity Acts are 
 not extended to this country. 
 
 Among Hindus, property of every kind may be dedicated Religious 
 to religious and charitable purposes, whether by gift inter *** 
 vivos, or by will ; 3 and sunh dedications of property do not Hindus, 
 require the assent of the State. 4 Except in families governed 
 by the Mitakshara law, there is no limit to the amount of 
 property which may be dedicated ; in one case all the family 
 property was permitted to be applied to the support and 
 worship of the family idol. 5 According to Hindu law 
 as current in Bengal, the gift of joint and undivided 
 property for religious and charitable purposes to the extent 
 of the donor's share is valid. 6 And under the Mitak- 
 shara law, a father may give a small portion of the ances- 
 tral estate for pious purposes without the consent of the 
 sons. 7 
 
 1 Attorney-General r. Mayor of Newark. 1 Hare, 400. 
 
 2 See Lewiu. 7ch Edn., 491. 
 
 s Mayne. 359 : and see Ramtonoo Mullick r. Ramgopal Mullick, 1 Kn., 
 245 ; Sonatun Bysack v. S. M. Juggut Soondree Dossee, 8 Moo. I. 
 A., 66. 
 
 4 Juggut Mohini Dossee v. M. S. Sokhee Money Dossee, 14: Moo. 
 I. A., 302. 
 
 5 Radhabullub Tagore v. Gopee Mohun Tagore. 1 Morley's Dig., 550. 
 * Komlakant Ghosal r. Ram Hurree Nund Gramee, 4 Sel., 196. 
 
 1 Gopal Cliand Pande . Babu Kuriwar Singh, 5 Sel., 24. 
 
 47 
 
370 GIFT MUST BE CERTAIN. 
 
 LECTURE A gift to charitable or religious purposes forms an excep- 
 XI1 - tion to the general rule against perpetuities. " It being 
 Perpetui- assumed to be a principle of Hindu law that a gift can be 
 ties. made to an idol, which is a caput mortuum and incapable 
 
 of alienating, that principle cannot be broken in upon by 
 Colourable engrafting upon it the English law of perpetuities." * But 
 gift to idol. the rule against perpetuities cannot be avoided by means of 
 a colourable gift to an idol. Thus, where a Hindu, by will, 
 devised certain property consisting of a family dwelling- 
 house and land, to trustees for ever, for the residence, main- 
 tenance, and performance of the worship of certain family 
 idols, and appointed his sons and their descendants in the 
 strict male line to be sebaits of the idols for ever, making 
 provision for their residence in the family dwellinghouse ; 
 and the will also contained a clause restraining any parti- 
 tion, division, or alienation of the property so dedicated to 
 the worship of the idols ; and the testator appointed the 
 trustees executors of his will, and by a codicil bequeathed 
 certain legacies to various members of his family, itj was 
 held, that the devise to idols was void and inoperative, as 
 being a settlement in perpetuity on the male descendants 
 of the testator and for their use, and not a real dedication 
 for the worship of the idols. 2 
 
 Gift must The principle of English law, that a gift for chari- 
 be certain. table or religious purposes must be certain, 3 applies in con- 
 struing the will of a Hindu. Where a testator by his 
 will directed as follows : " I do hereby direct my 
 trustee to feed the really needy and poor at Gopee- 
 nathjee out of a separate expense out of my estate, to 
 be contributed to the worship of Luckheejonardunjee, my 
 ancestral goddess : I do direct my trustee to spend suit- 
 able sums for the annual shradhs, or anniversaries, of my 
 father, mother, and grandfather, as well as of myself after 
 my demise ; for the performance of the ceremonies and the 
 feeding of the Brahmins and the poor; to spend suitable 
 sums for the annual contribution and gifts to the Brahmins, 
 pundits holding tolls for learning in the country at the 
 time of the Doorga Poojah ; to spend suitable sums for the 
 
 1 Kumara Asima Krishna Deb. 2 B. L. R. , 0. C., 47, per Markby, J. See 
 also Jatindra Mohan Tagore v. Ganendra Mohan Tagore, 9 B. L. R.. 377 ; 
 Krishnaramini Dasi i>. Anandakrishna Bose, 4 B. L. R.,0. C., 231; Rajen- 
 der Dutt v. Sham Chund Mitter, I. L. R., 6 Calc., 106. 
 
 5 Promotho Dossee v. Radhika Persaud Dutt, 14 B. L. R., 175 ; and see 
 Chundramoney Dossee v. Motilal Mullick, 5 Calc., 496. 
 
 * See ante, p. 355. 
 
TENURE IN TRUSTEE. 371 
 
 perusal of Mohabarat and Pooran, and for the prayer of LECTOBB 
 God during the month of Kartick : should there be any XI1 - 
 surplus after the above expenditure, then I do direct my 
 trustee to spend the said surplus in the contribution 
 towards the marriage of the daughters of the poor in my 
 class and of the poor Brahmins, and towards the education 
 of the sons of the poor amongst my class, and of the poor 
 Brahmins, and other respectable castes, as my trustee will 
 think fit to comply," it was held to be doubtful whether 
 the bequests to pundits holding tolls and for the reading of 
 the Mohabarat and Pooran and for prayer to God were 
 valid. 1 
 
 Section 105 of the Indian Succession Act, which imposes Gifts to re- 
 certain restrictions on gifts for religious and charitable c^ritabic 
 purposes, 2 does not extend to Hindus. But the " Oudh uses by 
 Estates Act, 1869," 3 limits, to a certain extent, the powers 
 of taluqdars or grantees in Oudh of disposing of their 
 property for charitable purposes. Section 18 provides, 
 that no taluqdar or grantee, and no heir or legatee of a 
 taluqdar or grantee, shall have power to give his estate, 
 or any portion thereof, or interest therein, to religious or 
 charitable uses except by an instrument of gift executed 
 not less than three months before his death, and subject to 
 the provisions contained in s. 17. 
 
 And s. 20 of the same Act provides, that " no taluq- 
 dar or grantee, and no heir or legatee of a taluqdar or 
 grantee, having a child, parent, brother, unmarried sister, 
 or a nephew, being the naturally-born son of a brother of 
 such taluqdar or grantee, heir or legatee, shall have power 
 to bequeath his estate or any part thereof, or any interest 
 therein, exceeding in amount or value the sum of two 
 thousand rupees, to religious or charitable uses, except by 
 a will executed not less than three months before his 
 death, and registered within one month from the date of 
 its execution." 
 
 " As an idol cannot itself hold lands, the practice is to Tenure in 
 vest the lands in a trustee for the religious purpose, or to lr 
 impose upon the holder of the lands a trust to defray 
 the expense of the worship. 4 Sometimes the donor is 
 himself the trustee. Such a trust is of course valid, if 
 
 1 Dwarka Xath Bysack r. Burroda Persaud Byssck, I. L. R., 4 Calc., 443, 
 See also Gangabai v. Thava Mulla, 1 Bom.. C., 71. 
 1 See ante. p. 352. * Act I of 1869. 
 
 4 See Komlakaut Ghosal v. Ram Hurree Nund Gramee, 4 Sel., 196. 
 
372 TRUST IMPERFECT. 
 
 LECTURE perfectly created, though, being voluntary, the doior can- 
 XI1 - not be compelled to carry it out if he has left it imperfect. 1 
 But the effect of the transaction will differ materially, 
 according as the property is absolutely given for the reli- 
 gious object or merely burthened with a trust for its 
 support. And there will be a further difference where 
 the trust is only an apparent, and not a real one, and 
 where it creates no rights in any one except the holder of 
 the fund." 2 
 
 Trust im- " The last case arises where the founder applies his own 
 perfect. property to the creation of a pagoda, or any other religious 
 or charitable foundation, keeping the property itself, and 
 the control over it, absolutely in his own hands. The com- 
 munity may be greatly benefited by this arrangement 
 so long as it lasts, but its continuance is entirely at his own 
 pleasure. It is like a private chapel in a gentleman's park, 
 and the fact that the public have been permitted to resort 
 to it, will not prevent its being closed, or pulled down, 
 provided there has been no dedication of it to the public." 3 
 Thus, where two Parsi brothers erected a fire-temple 
 on their estate, and by a document, which they recorded 
 in a solemn meeting of their community, declared that 
 they erected this temple, and placed the sacred fire in 
 it, in commemoration of their deceased father, but that 
 it should always be subject to the authority of them- 
 selves and their heirs, and that all the members of the Zoro- 
 astrian community were at liberty to have their religious 
 ceremonies performed therein without any obstruction on 
 their part, it was held, that this document contained 
 no grant of the temple to the Parsi community, but that 
 the entire ownership remained in the brothers, and 
 would pass to their assignees in case of insolvency. 4 So, 
 where the plaintiff sued, as the shebait of a certain idol, 
 to recover possession of a zemindari, by setting aside an 
 alienation of it effected by an ancestor, on the ground that 
 it was debuttur property and inalienable ; and it appeared 
 that the property in dispute was purchased by the grand- 
 father of the plaintiff in the name of the idol, which was 
 set up merely for his private worship in his own house, 
 without any priests to perform regularly any religious 
 service for the public benefit of Hindus; and that the 
 property had been dealt with all along as his own private 
 
 1 Ante. p. 53. z Mayne, 362. * Mayne, 363. 
 
 4 Doe d, Howard v. Pestonji Manockji, Perry, 0. C., 535. 
 
DEVISE SUBJECT TO TRUST. 373 
 
 property, it was held, that it was a mere nominal endow- LECTTTBB 
 ment, and that the alienation was not invalid. 1 
 
 Property may be devised partially subject to a trust in Devigc ~ 
 favour of an idol or for some religious or charitable endow- subject to 
 ment. Thus, where a Hindu, by his will, gave all his move- trust> 
 able and immoveable property to his famih 7 idol, and, after 
 stating that he had four sons, he directed that his property 
 should never be divided by them, their sons or grandsons in 
 succession, but that they should enjoy " the surplus pro- 
 ceeds only ;" and the will, after appointing one of the sons 
 manager to the estate, to attend to the festivals and cere- 
 monies of the idol and to maintain the family, further 
 directed, that whatever might be the surplus after deduct- 
 ing the whole of the expenditure, the same should be added 
 to the corpus, and in the event of a disagreement between 
 the sons and family, the testator directed that, after the 
 expenses attending the estate, the idols, and maintenance 
 of the family, whatever nett produce and surplus there 
 might be should be divided annually, in certain propor- 
 tions, between the members of the family, it was held, that 
 the bequest to the idol was not an absolute gift, but was 
 to be construed as a gift to the testator's four sons and 
 their offspring in the male line as a joint family, so long 
 as the family remained joint, and that the four sons were enti- 
 tled to the surplus of the property after providing for the 
 performance of the ceremonies and festivals of the idol and 
 the provisions in the will for maintenance. 2 Again, where 
 a Hindu lady left, by will to her sons, land belonging to 
 her to support the daily worship of an idol, and to defray 
 the expenses of certain other religious ceremonies, with a 
 provision that, in the event of there being a surplus after 
 these uses had been satisfied out of the revenue of the 
 lands, such surplus should be applied to the support of the 
 family, it was held, that this provision amounted to a 
 bequest of the surplus to the members of the joint family 
 for their own use and benefit, and that each of the sons 
 of the testatrix took a share in the property, which, after 
 satisfying the religious and ceremonial trusts, might be 
 considerable and could not be presumed to be valueless. 3 
 
 1 Maharanee Brojosoondery Debia v. Ranee Luchmee Koonwaree, 
 15 B. L. R., 176 (). 
 
 * Sonatun Bysack r. S. M. Juggut Soondree Dossee, 8. Moo. I. A., 66. 
 See also Ram Coomar Paul r. Jogender Nath Paul, I. L. R.. 4 Calc., 56. 
 
 1 Ashutosh Dutt r. Doorga Churn Chatterjee, I. L. R., 5 Calc., 438. 
 
374 ALIENATION. 
 
 LECTUBE Where property is wholly dedicated to religious pur- 
 XII< poses, it cannot be sold ; but where a portion only of its 
 Saie~oT profits is charged for such purposes, the property may be 
 property sold subject to the charge with which it is burdened. 1 
 trust 01 So, where an endowment is merely nominal, and indications of 
 personal appropriation and exercise of proprietary right are 
 found, a sale of the property is valid under the Hindu law. 2 
 Partition In such cases as these we are now considering, the pro- 
 subject to p e rty ma y k e partitioned subject to the trust for the idol. 3 
 
 trust. * . Y, i J -, v 
 
 Alienation I Although property devoted to religious purposes is, as a 
 rule, inalienable, a shebait may alienate a reasonable portion 
 of the endowed property if the alienation is absolutely 
 required by the necessities of the management, such as 
 the restoration of the idol or the repair of the temple ;* 
 and he may raise the necessary funds by mortgage. 5 
 But he may not, except distinctly for the benefit of the 
 endowment, iacumber it beyond his own life. 6 His position, 
 so far as alienation is concerned, is analogous to that of 
 the manager of an infant heir, or of a Hindu widow alienat- 
 ing ancestral property ; and the question to be considered 
 is, whether, looking to all the circumstances of the case, the 
 alienation was a prudent and wise act in respect of the 
 purposes for which he was shebait ; and, in estimating the 
 validity of a sale, it ought to be considered whether the 
 purchasers satisfied themselves, as far as they could, that 
 there was a fair and sufficient ground of necessity for the 
 alienation. 7 The shebait may grant leases of the endowed 
 lands ; 8 and he can create derivative tenures and estates 
 conformable to usage. 9 But a mohunt in charge of an endow- 
 ment, with only a life-interest in the property, cannot create 
 an interest superior to his own, or, except under the most 
 extraordinary pressure, and for the distinct benefit of the 
 
 Basoo Dhul v. Kishen Chunder Geer Gossain, 13 W. E., 200. 
 
 Mahtab Chand v. Mirdad AH, 5 Sel. Rep.. 268. See also Sonatun 
 Bysack r. S. M. Juggut Soondree Dossee, 8 Moo. I. A., 66. 
 
 Ram Coomar Paul v. Jogender Nath Paul, I. L. R., 4 Calc., 56. 
 
 Tahboonissa Bibee T. Koomar Sham Kishore Roy. 15 W. R., 228. 
 
 Prosunno Kumari Debya v. Golab Chand Baboo, L. R., 2 I. A., 145. 
 
 Khusalchand v. Mabadevgiri. 12 Bom.. 214. 
 
 Juggessur Buttobyal v. Rajah Roodro Narain Roy, 12 W. R.. 299. 
 Naryan r. Chintaman. I. L. R.. 5 Bomb., 393 : Koonwar Doorganath Roy 
 v. Ram Chunder Sen. I. L. R., 2 Calc.. 341 ; S.C., L. R.. 4 I. A., 52. 
 
 * Ibid ; and see Arruth Misser v. Juggurnath Indraswamee, 18 W. R., 
 439. 
 
 9 Maharanee Shibessouree Debia v. Mothooranath Acharjo, 13 Moo. 
 I. A., 270. 
 
SETTING ASIDE SALE. 375 
 
 endowment, bind his successors in office. 1 In a suit to set LECTUBB 
 aside certain alienations of an ancestral mehal, on the ground 
 that the mehal had been dedicated to the worship of an 
 idol, it was contended for the defence, that the estate had 
 not been so dedicated, and that, if it was, there was legal 
 necessity for the alienation. The deeds of transfer contained 
 recitals that the estate transferred was debuttur, that the 
 temple was out of repair, and that the purchase-money was 
 wanted to restore it. It was held, that the admissions in 
 the deeds must be taken as a whole, and that, according 
 to them, the sales were justifiable, even if the property 
 were debuttur ; and that, even if part only of the purchase- 
 money was required for the repairs of the idol, as was 
 represented to have been so required, and this was bond fide 
 believed by the grantees, the deeds would not be wholly 
 void by reason that some of the money was raised for another 
 purpose. 2 
 
 A plaintiff, who seeks to set aside an alienation of lands Evidence 
 on the ground that they are dedicated in perpetuity to ^e 
 support the worship of an idol, must give strong and clear given, 
 evidence of the endowment. The mere fact that the rents 
 of a particular mehal have been applied for a considerable 
 period to the worship of an idol, is not sufficient proof 
 that the mehal is debuttur. 3 
 
 Even if a purchaser has notice on a sale of property How far 
 avowedly debuttur, that the whole of the purchase-money *gjd et 
 is not required for the purposes of the endowment, but 
 that part of it is to be expended on other objects, an ac- 
 tion will not lie to set aside the sale altogether, since the 
 purchaser would be entitled to be reimbursed so much of 
 the money as has been legitimately advanced. 4 
 
 Upon the principle that a trustee may not derive any Trustee 
 benefit from the trust, 5 the trustees of endowed property JJ^g^ 
 cannot transfer it so as to gain any benefit to themselves, sale, 
 even though the transferree undertakes to continue the 
 ceremonies. 6 
 
 1 Mohunt Burm Suroop Dass v. Khashee Jha, 20 W. R., 471 ; Bunwaree 
 Chand Thakoor v. Mudden Mohun Chuttoraj, 21 W. R., 41 ; Radha Bullub 
 Chand v. Juggut Chunder Chowdhree, 4 Sel., 151. 
 
 2 Koonwar Doorganath Roy v. Ram Chunder Sen, I. L. R., 2 Calc., 
 341 ; S. C v L. R.. 4 I. A.. 52. 
 
 1 Koonwar Doorganath Roy v. Ram Chunder Sen, I. L. R , 2 Calc., 341 ; 
 S. C.. L. R., 4 I. A., 52. 
 
 * Ibid. * See ante, p. 250. 
 
 Rajah Vurmah Valia c. Ravi Vurmah Mutha, L. R., 4 I. A., 76. 
 
376 SUCCESSION TO TRUSTEESHIP. 
 
 LECTURE The right to the turn of worship of a Hindu idol ean- 
 XI1 - not be sold in execution of a decree for the personal debt 
 Sale of of the shebait. It might happen that the purchaser was 
 turn of of a different religion and not capable of performing 
 worship. j ie serv i ces> an( j the object of the endower in creating 
 
 the endowment would be defeated. 1 
 
 Succession When property is endowed for charitable or religious 
 to trustee- purposes, it is usual to appoint some person, who may be a 
 
 ship. i- i 2 A f 
 
 iemale, to manage the estate and to make provision lor 
 succession to the office. If no such provision is made, 
 and there is no evidence of succession by any usage or 
 custom, the heirs of the endower are entitled to the 
 management. In the case of The elder widow of Rja 
 Chutter Sein v. The younger widow of Raja Chutter Sein, 3 
 the Pundits of the Sudder Dewany Adawlut gave the 
 following opinions on the question as to the right to 
 manage debuttur property : " Debuttur lands are not herit- 
 able property ; the management of them, alone, for reli- 
 gious purposes, devolves on the heirs of the person who 
 made the endowment." 4 The principle is, that an estate 
 given to a man simply without express words of inherit- 
 ance, will, in the absence of a conflicting context, carry 
 by Hindu law (as under the present state of the law ifc 
 does by will in England) an estate of inheritance. 5 
 
 Where a testator had made a bequest for charitable pur- 
 poses, and had made no express provision for the manage- 
 ment of the trust, except by directing that, in the event 
 of his heirs failing to carry out his wishes in respect of 
 the trust-fund, the Civil Court should take the fund and 
 the management of the trust summarily into its own 
 hands, it was held, that, in the absence of misconduct, the 
 widow, and not the Collector, was the proper person to be 
 appointed trustee. 6 
 
 Enjoyment The right to the enjoyment of the endowed property 
 of endowed passes with the office, and is not separable from it ; and if 
 
 property. r 
 
 1 Kalee Gir Gossain v. Bungshee Mohun Doss. 15 W. R., 339. 
 * Joy Deb Surraah v. Huroputty Surmah. 10 W. 11.. J-_'. 
 1 1 Sel. Rep.. 180. 
 
 4 And see Jaafar Mohi-u-din Sahib v. Aji Mohi-u-din Sahib, 2 Mad. H. 
 C. R.. 19. 
 
 5 Jatindra Mohan Tag-ore v. Ganendra Mohan Tagore, 9 B. L. R., 377, 
 395; S. C. in the Court below, 4 B. L. R.. O. C., 103. 182. 
 
 8 Hod Dasi Dabi r. The Secretary of State for India. I. L. R., 5 Calc., 
 228 ; S. C. nom. Ramlall Mookerjee v. The Secretary of State for Iiidia, 
 I. L. L., 7 Calc., 225. 
 
TURN OF WORSHIP. 377 
 
 some particular member of a family is designated as the LECTURE 
 incumbent of the office, the other members of the family have XII> 
 no right to a division of the returns derived from the land. 1 
 
 In some cases the members of the family may be Turn of 
 entitled to manage in turns, and any infringement of this worship, 
 right can be redressed by a suit. 2 The Court should 
 define the precise periods for which the parties are en- 
 titled. 3 A refusal to give up an idol, in consequence of 
 which the person demanding it is prevented from perform- 
 ing his turn of worship on a specified date, gives the party 
 aggrieved a right to sue for damages.* 
 
 The right to the exclusive worship of an idol is not in Limitation, 
 the nature of an interest in immoveable property, and a 
 suit to establish such a right must be brought under Act 
 XV of 1877, sched. ii, art. 120, within six years from the 
 time when the right to sue accrued. A suit to establish a 
 right to a turn of worship is one " to establish a periodi- 
 cally recurring right," and must be brought under art. 131 
 of the same Act within three years of the time when 
 the plaintiff is first refused the enjoyment of the right. 5 
 
 If the person creating the endowment has vested the Manage- 
 management in several different persons, each of whom ment 
 is to act in the management, and to be a check on the different 1 
 others, the managers appointed cannot assign over the persons, 
 right of management to any particular person, and so 
 alter the nature of the trust. 6 
 
 The succession to mutlis, or religious endowments, must Proof of 
 be regulated in each case by the nature of the endowment, successlou - 
 and the rule of succession prescribed by the founder of 
 the institution ; and if this rule cannot be discovered 
 from the original deed of gift or other documentary 
 evidence, it must be proved in each case by showing what 
 the usage has been on the occasion of each succession. 7 
 
 1 Jaafar Mohi-u-din Sahib r. AjiMohi-u-dinSahib, 2 Mad. H. C. R., 19. 
 
 2 Anund Moyee Chowdhraiu v. Boykant Nath Roy, 8 W. R.. 193; 
 Ram Soondnr Thakoor r. Taruck Chunder Turkoruttun, 19 W. R., 28 ; 
 Mitta Kunth Audhicarry K. Neerunjun Andhicarry. 14 B. L. R., 166. 
 
 3 Ram Soondur Thakoor r. Taruck Chunder Turkoruttun, 19 W. R., 28 ; 
 Mitta Kunth Audhicarry r. Xeerunjun Audhicarrv, 14 B L. R., 170. 
 
 4 Debendro Nath Mullick . Odit Churn Mullick, I. L. R.. 3 Calc., 390. 
 As to obtaining a declaration of the right to act as ptijari, and to 
 receive the proceeds of a mamiir, see Pranshankar v . Pranuath Mahanand, 
 1 Bom.. A. C.. 12. 
 
 5 Eshan Chunder Roy r. Monmohini Dassi. I. L. R.. 4 Calc., 683 ; see 
 also Gaur Mohan Chowdhry r. Madan Mohan Chowdhry, 6 B. L. R., 352. 
 
 6 Rajah Vurmah Valia r. Ravi Vurmah Mutha,L. R., 4 I. A., 76. 
 * Sitapershad r. Thakur Dass. 5 Calc., 73. 
 
 48 
 
378 MANAGEE BOUND TO CELIBACY. 
 
 LECTUBE Where the person appointed to manage an endowment 
 XII is bound to celibacy, he is usually succeeded by one of his 
 Succession disciples, whom he may nominate in his own lifetime, 1 
 where or by will. 2 But he cannot alter the succession of an 
 bouiufto endowment belonging to ascetics, by any act of his own 
 celibacy, in connection with the status under which he originally 
 acquired the trust. 3 There are instances of mutlis in 
 which the mohuntship descends to a personal heir of the 
 deceased, and others in which the existing mohunt alone 
 nominates his successor ; but the ordinary rule is, that the 
 muths of the same sect in a district are associated to- 
 gether the mohunts of these acknowledging one of their 
 number (who is for some reason pre-eminent) as a head ; 
 and on the occasion of the death of one, the others 
 assemble to elect a successor out of the chelas or disciples 
 of the deceased, if possible ; or if there be none of them 
 qualified, then from the chelas of another mohunt. After 
 the election the chosen disciple is installed in the guddi 
 of his predecessor. 4 
 
 On a claim for the superintendence of an endowment 
 no acknowledgment by any party can do away with the 
 necessity of proof of due nomination according to the 
 rules and usages of the endowment. 5 
 
 In some cases one member of an order of ascetics who 
 has been associated with a shebait succeeds to the office. 
 The principle upon which such succession is allowed, is 
 based entirely upon fellowship and personal association 
 with that other, and a stranger, though of the same order, 
 will be excluded. 6 
 
 In the case of a mourosi ninth, the investiture by the 
 leading neighbouring mohunts at the Bandhara ceremony 
 of one who cannot prove that he was actually appointed 
 by the last mohunt, is not sufficient, in the absence of 
 proof that he has a right to be so appointed as being 
 senior chela of the last mohunt, to entitle him to succeed 
 to the guddi. 1 
 
 1 Local Agents of Zillah Hooghly v. Kishnanund Dundee, S. D. of 
 1848, p. 253. 
 
 2 Greedharee Doss v. Nundokissore Doss, 11 Moo. I. A.. 405. 
 1 Mohunt Rumun Dass r. Mohuut Ashbul Dass. 1 W R., 160. 
 
 4 Gossain Dowlut Geer r. Bissessur Geer. 19 W. R., 215. 
 
 5 Mohunt Gopal Dass v. Mohunt Kerparam Dass. S. D. of 1850, p. 250. 
 
 4 Khuggender Narain Chowdhry v. Sharupgir Oghorenath, I. L. R., 
 4 Calc., 543. 
 7 Sitapershad v. Thakur Dass, 5 Calc., 73. 
 
REMOVAL OF TRUSTEE. 379 
 
 A zemindar, claiming a customary right to grant con- LECTURE 
 firmation of the election of a mohunt, must prove the XI1 - 
 custom. 1 
 
 Among saniasis generally, no chela has a right as such 
 to succeed to the property of his deceased guru. His 
 right of succession depends upon his nomination by the 
 deceased in his lifetime as his successor, which nomina- 
 tion is generally confirmed by the mohunts of the neigh- 
 bourhood assembled together to perform the funeral 
 obsequies of the deceased. Where a guru does not nominate 
 his successor from among his chelns, such successor is 
 elected and installed by the mohunts and principal 
 persons of the sect in the neighbourhood, upon the occasion 
 of the funeral obsequies of the deceased. Where, there- 
 fore, a chela sued for possession of a village belonging to 
 his deceased guru, founding such suit on his right of 
 succession as chela, without alleging that he had been 
 nominated by the deceased as his successor and confirmed, 
 or that he had been elected as successor to the deceased, 
 the suit was held not to be maintainable. 2 
 
 If a shebait dies without having appointed a successor, Reversion, 
 the managership reverts to the heirs of the person who 
 endowed the property. 3 
 
 Unless the founder has reserved to himself some special Hemovai of 
 powers of supervision, removal, or nomination, neither he tr 
 nor his heirs have any greater power in this respect than 
 any other person who is interested in the trust. 4 
 
 Where, by his will, the rtwhunt of an akra, or religious. Removal 
 endowment, appointed A to be the malik of the properties of mohunt 
 comprised in the endowment, and to receive the dues and 
 pay the debts, and to do everything necessarily connected 
 therewith ; and provided that if any act was done preju- 
 dicial to any of those purposes or to any property set 
 apart therefor, or contrary to the Hindu practice and 
 religion or usages, the property should vest in such dis- 
 ciple of his who should be competent and virtuous, and 
 A obtained probate of the will and entered upon the 
 properties mentioned in it, it was held, that the Court 
 had no power to revoke the probate under s. 234 of the 
 
 1 Rajah Muttu Ramalinga Setupati v. Perianayagum Filial, L. R., 
 1 I. A. ,209. 
 
 - Madho Dass r. Kamta Dass. I. L. R.. 1 All.. 539. 
 
 3 M. S. Jai Bansi Kunwar e. Chattar Dhari Sing, 5 B. L. R., 181. 
 
 * Mayne, 3t35. 
 
380 
 
 EXECUTION OF TRUST. 
 
 LECTURE 
 XII. 
 
 Religious 
 
 trust 
 
 irrevocable. 
 
 Execution 
 of trust. 
 
 Principles 
 to be fol- 
 lowed. 
 
 Right to 
 erect 
 place of 
 worship. 
 
 Religious 
 trusts 
 among 
 Maho- 
 
 mudans. 
 
 Succession Act, upon the ground that A had, since he took 
 charge of the office, taken to an immoral course of con- 
 duct, and in consequence had been excluded from the 
 community of mohunts ; but that the proper course was to 
 proceed under the Religious Endowments Act, I of 1880. 1 
 
 A trust for religious or charitable purposes, when once 
 properly created, is, like an ordinary trust, wholly irrevo- 
 cable by the grantor. 2 
 
 If the objects for which an endowment was created are 
 not carried out, the property cannot be resumed by the 
 heir of the founder, 3 but the Court becomes the trustee, and 
 will consider in what form and manner the trust is to be 
 executed. 4 
 
 The superintending authority over religious endowments 
 exercised by the old rulers of the country passed to the 
 British Government, and the Regulations and Statutes 
 which have, from time to time, been passed with regard 
 to such endowments merely define the manner in which 
 that power was thenceforth to be exercised. 5 
 
 The important principle to be observed by the Courts 
 in dealing with the constitution and rules of religious 
 brotherhoods attached to Hindu temples is to ascertain, if 
 possible, the special laws and usages governing the parti- 
 cular community whose affairs have become the subject of 
 litigation, and to be guided by them. The custom and 
 practice in such matters is to be proved by testimony. 6 
 
 Members of any sect are at liberty to erect a place of 
 worship, either public or private, on their own property, 
 although it is more or less contiguous to a place already 
 occupied by a place of worship appertaining to another sect ; 
 and to perform worship, provided that they do not cause 
 material annoyance to their neighbours. 7 
 
 Religious and charitable endowments may be created by 
 
 1 In re Mohun Dass. I. L. R., 6 Gale., 11 ; see Appendix for the Act. 
 
 2 Juggut Mohini Dossee v. M. S. Sokheemoney Dossee, 14 Moo. 
 I. A., 289, 302. 
 
 3 Ram Narain Singh -c. Ramoon Paurey, 23 W. R., 76. 
 
 4 Attorney-General v. Brodie, 4 Moo. I. A., 199 ; and see Mayor of 
 Lyons v. Advocate-General of Bengal, L. R.. 3 I. A., 32. 
 
 5 Rajah Muttu Ramalinga Setupati v. Perianayagum Pillai, L. R., 
 1 I. A.. 209. 
 
 6 Rajah Muttu Ramalinga Setupati v. Perianaygum Pillai, L. R. 
 1 I. A., 209. 
 
 7 Seshayyangar v. Sheshayyangar, I. L. R., 2 Mad., 143 ; Madhary r. 
 Goburdhun Hulwai, I. L. R., 7 Calc., 694. 
 
WUQF. 381 
 
 Mahomedans. The law relating to such endowments as LECTURE 
 stated by the Mahomedan authorities has been dealt with 
 by one of my predecessors, Baboo Shama Churn Sircar, 
 Tagore Lectures, 1874, and I only propose now to deal 
 with the case-law on the subject. 
 
 The chief elements of wuqf are special words declaratory Element* 
 of the appropriation, and a proper motive cause ; and where of Wu 9f' 
 the declaration is made in a solemnly published document, 
 the wuqf is completed. 1 The primary object for which 
 lands are endowed, and which are the objects which all 
 Mahomedans have in view in endowing lands, are to sup- 
 port a mosque and to defray the expenses of the worship 
 conducted in it. 2 
 
 Wuqf implies the relinquishing the proprietary ritrht Creation of. 
 in any article of property, such as lands, tenements, and the 
 rest : and consecrating it in such manner to the service of 
 God, that it may be of benefit to men, provided always, 
 that the thing appropriated be, at the time of appropriation, 
 the property of the appropriate!*, 3 even if it consists of an 
 undefined share in an estate. The endowment will in such 
 a case be valid to the extent of the share of the donor 
 when ascertained. 4 Thus, a general dedication of lands 
 for the purpose of a cemetery establishes a wuqf, and 
 excepts it from descent to the heirs. 5 But a grant to an 
 individual in his own right, and for the purpose of furnish- 
 ing him with the means of subsistence, do not constitute a 
 wuqf. 6 So, apparently, a wuqf cannot be created for the 
 purpose merely of conferring a perpetual and inalienable 
 estate on a particular family, without any ultimate limita- 
 tion to the use of the poor, or some inextinguishable class of 
 beneficiaries. 7 
 
 In Mahomed Hamidulla Khan v. Lotful Huq? a Maho- 
 medan settled a portion of his property as follows : " I have 
 made wuqf of the four annas in favour of my daughter and 
 her descendants, as also her descendants' descendants how 
 low so ever, and when they no longer exist, then in favour 
 of the poor and needy ;" and it was held, that this did not 
 
 1 Doyal Chund Mullick v. Syud Keramnt AH, 16 W. R., 116. 
 
 2 Muzhurool Huq r. Pubraj Ditarey Mohapattur. 13 W. R., 235. 
 
 3 Moohummud Sadik v. Moohummud All, 1 Sel. Rep., 18. 
 
 4 M. S. Hyotee Khanum v. M. S. Koolsum Khanum, 1 Sel. Rep., 217. 
 
 5 Mir Nur All r. Majidah, 5 Sel. Rep.. 136. 
 
 6 Bibee Kuneez Fatima v. Bibee Saheba Jan, 8 W. R., 313. 
 
 7 Phate Saheb Bibi v. Damodar Premji, I. L.R., 3 Bomb., 8i. 
 
 8 I. L. R., 6 Calc., 744. 
 
382 REQUISITES TO VALID WUQF. 
 
 LECTURE create a valid ^vuqf. But this case appears to conflict with 
 XI1 - the other authorities. 
 
 Evidence No property can be considered as wuqf unless it be satis- 
 
 of appro- factorily established that it has been specially so appro- 
 L0n> priated ; l for instance, the payment of the expenses of a 
 mosque out of the rents of a particular property is not in 
 itself proof of an endowment. 2 It is not necessary that 
 the grant should be in express terms for the benefit of the 
 endowment, provided that the nature of the tenure be 
 inferrible from the general contents of the grant. 3 
 
 Wuqf to The owner of lands may make an endowment settling 
 
 take effect ] anf j s upon himself for life, and after his death, for the sup- 
 aftenset- , * T , , 
 
 tior'sdeath. port of the poor. In such a case the instrument operates 
 as a will, and is only valid to the extent of one-third of the 
 donor's property. 4 The main object of the Mahomedan law 
 is, that the profits of the land endowed should be endowed for 
 a purpose which always remains in existence. The poor are 
 always with us, and therefore a man making an endow- 
 ment, and enjoying the profits during his lifetime, to go to 
 the poor after his death, does not make an endowment for 
 uncertain or non-existent objects. 
 
 Requisites In Mahomed Hamidulla Khan v. Lot/id Huq 6 it was 
 teew/. ld held, that it is necessary among Sunnis, in order to validate 
 a wuqf, that the donor should reduce himself to a state of 
 absolute poverty. This is, however, it is submitted, incon- 
 sistent with many other rulings. 
 
 To constitute a valid wuqf according to Shiah law, it 
 must be absolute and unconditional, and possession must 
 be given of the thing granted. Thus, where a Mahomedan 
 lady executed a deed conveying her property, on trust, for 
 religious purposes, reserving for herself for life two-thirds 
 of the income derivable from the property, aud only mak- 
 ino 1 an absolute and unconditional grant of the rest for the 
 purposes of the trust, it was held, that, under the Shiah law, 
 the deed must be considered invalid with respect to the 
 portion of the income reserved by the grantor to herself for 
 life ; but as to the rest that the deed operated as a good 
 and valid grant. 7 
 
 1 Bindasoondree Dassea i\MeheroonissaKhatoon, S. D. A., 1853, pp. 69,84. 
 * M. S. Shurfoonissa v. M. S. Koolsum. 25 W. R., 417. 
 s Kulb All Hossein v. Syf All, 2 Sel. Rep., 139. 
 
 4 Doe d. Jaun Beebee v. Abdoollah Barber, 1 Fult., 345. 
 
 5 Muzhurool Huq r. Pubraj Ditarey Mohapattur, 13 W. R., 235. 
 6 1. L. R., 6 Calc., 744. 
 
 ' Hajee Kalub Hossein v, M. S. Mehrun Bebee, 4 N. W. P., 155. 
 
REQUISITES TO VALID WUQF. 383 
 
 According to Mahomedan law, it is not necessaiy, in LECTURE 
 order to constitute a valid endowment for religious or 
 charitable purposes, that the word ' uiiqf should be used 
 in the grant, if from the general nature of the grant it can 
 be inferred that the property is to be so appropriated. 1 
 And conversely, the use of the word ' ivuqf is not of 
 itself sufficient to create an endowment. There must 
 be a dedication of the property solely to the worship of 
 God, or to religious or charitable purposes. A Mahome- 
 dan cannot, therefore, by using the term wuqf effect a 
 settlement of property upon himself and his descendants 
 which will keep such property inalienable by himself and 
 his descendants for ever. 2 
 
 If property has been dedicated for religious or charitable 
 purposes, the use of the words ' inam,' or ' altamgha' in 
 the grant, will not confer an absolute proprietary right in 
 the grantee. By a royal firman granted by Mahomed 
 Firooksir, one lac of dams from a certain parganna were 
 endowed and bestowed for the purpose of defraying the 
 expenses of the khankah (a religious establishment) of 
 Sheikh Rubeer, as an altamgha grant for him to manage 
 and control and to descend to his heirs in succession from 
 remove to remove. On the petition of Sheikh Gholara, the 
 grandson of Sheikh Rubeer, who had succeeded to the 
 office of sifiada-nashin of the khankah, Mahomed Shah 
 granted a perwannah, enjoining that the lac of clams should 
 be considered as an altamgha-inam for the purpose of 
 being appropriated to the charges of the travellers to and 
 from the khaukah to descend to the offspring in succession ; 
 and a similar perwannah was granted on the petition of 
 Sheik Kaim-ood-deen, the son of Sheikh Gholam, after the 
 death of his father. By a subsequent grant by Shah Alam, 
 two lacs of dams were granted as an altamgha-inam to 
 Sheikh Kaim-ood-deen for the purpose of the frequenters 
 to and from him, ;ind all ranks were enjoined " always to 
 maintain and uphold the august order, and to relinquish 
 the aforesaid dams to them to descend to the offspring in 
 succession to be enjoyed by them " free from all Govern- 
 ment and revenue charges. In 1807 and 1810, Shah 
 Shum-sood-deen, the then sifiada nashin, alienated part of 
 the property comprised in these grants, and died in 1810, 
 
 1 Jewun Doss Sahoo r. Shah Kubeer-ood-deen, 2 Moo. I. A., 390. 
 
 2 Abdul Ganne Kasam v. Hussen Miya Rahimtula, 10 Bom. H. C. R., 7; 
 and see Mahomed Hamidulla Khan r. Lotf ul Huq, I. L. R., 6 Calc., 744. 
 
384 
 
 ENDOWMENT SUBJECT TO MORTGAGE. 
 
 LECTURE leaving the plaintiff, his son, then a minor. In 1829, the 
 XI1 - plaintiff was appointed by the Government to be inuta- 
 walli and sifiada-nashin of the establishment. In a suit 
 instituted by him in 1822 to recover the property alien- 
 ated by his father, it was held, that, notwithstanding the 
 use of the terms ' inam ' and ' altamgha ' in the royal grants, 
 and the mention therein of the persons on whose petitions 
 the grants were made, yet these grants having been 
 made for the purpose of maintaining a charitable insti- 
 tution, the persons named were not to be considered the 
 proprietors ; the establishment of the khankah was the 
 real donee, and the persons named were only mutawallis 
 of the khankah, w r ho as such would have no right to 
 alienate, and therefore that the alienation by Shumsood- 
 deen was illegal. 1 
 
 It is not necessary that the endowment should be in 
 writing, or that the property should be delivered over. A 
 verbal declaration of the intention to create an endowment 
 is sufficient, if in the presence of witnesses. 2 Although the 
 witnesses to the fact depose vaguely, yet their evidence, if 
 corroborated by circumstances, is legally sufficient. 3 
 
 A ivuqf will not be valid if the donor was subjected to 
 any undue influence, or was not aware of the nature of the 
 transaction. Thus, where an alleged endower was shown 
 to be an illiterate purdanashin lady, and she denied on 
 oath that, in executing the wuqfnama, she had any inten- 
 tion of creating an absolute wuqf, or that she understood 
 the effect of the deed when she executed it, it was held, 
 that the onus was on the persons who sought to remove 
 her from the office, to show that she was fully aware of 
 the character of the document and its legal effect, and that 
 she had proper professional advice at the time of its 
 execution, and, in the absence of such proof, that the deed 
 was not binding on her. 4 
 
 The fact that a mortgage is in existence over property 
 at the time when it is set apart as an endowment, does not 
 invalidate the endowment, which will be considered as 
 being subject to the mortgage. If, after a mortgage, the 
 
 1 Jewun Doss Sahoo v. Shah Kubeer-ood-deen, 2 Moo. I. A., 390 ; see 
 also M. S. Qadira v. Shah Kubeer-ood-deen Ahmud, 3 Sel. Rep.. 407. 
 
 2 Doe d. Jaun Bibee v. Abdoollah Barber, 1 Fult., 345 ; Shurbo Narain 
 Singh v. Ally Buksh Shah, 2 Hay. 41.-,. 
 
 * Abul Hasan v. Haji Mohammad Masih Karbalai. 5 Sel. Rep., 87. 
 4 Delross Banoo Begum v. N.awab Syud Ashgur Ally Khan, 15 B. L. R., 
 167 ; S.C., 23 W. R., 453. 
 
 Undue 
 influence. 
 
 Endow- 
 ment sub- 
 ject to 
 mortgage. 
 
ALIENATION. 385 
 
 mortgagor endows the land, and dies leaving sufficient LECTUBE 
 
 v T r 
 
 assets, his heirs are bound to apply those assets to the 
 redemption of the mortgage, so that the endowment may 
 take effect freed from the mortgage, by the application of 
 other assets of the en dower. But, if necessary, the mort- 
 gagee may enforce the mortgage by sale of the land, and 
 the endowment will be rendered void as against the heirs 
 of the endower ; as against whom the surplus sale-proceeds 
 will be subject to the endowment. 1 So, the mere charge 
 upon the profits of the estate of certain items which must 
 in course of time necessarily cease, and which, after they 
 lapse, will leave the whole profits intact for the original 
 purposes for which the endowment was made, does not 
 render the endowment invalid under the Mahomedan law.' 2 
 
 If property has been given over for religious and chari- Revoca- 
 table purposes and the trust is complete, the wuqf cannot tlon * 
 be affected by revocation, or by the bad conduct of those 
 responsible for the carrying out of the trusts. 3 
 
 According to Shiah law, the donor may recover back the 
 property from the trustee, if at the time of the creation of 
 the trust he has reserved the right to do so in express terms. 4 
 
 As a general rule, it may be stated that the private Alienation 
 alienation, temporary or absolute, by mortgage or otherwise, of w "?/ 
 of wuqf lands, even though for the repair or other benefit property ' 
 of the endowment, is illegal according to the Mahomedan 
 law; 5 and if endowed property descends as such to the 
 widow of the endower as mutawalli, it cannot be sold in 
 satisfaction of a claim against the estate of the endower. 6 
 The 'authorities disagree as to whether the appropriator's 
 right continues or is extinguished ; but they agree that it 
 cannot be disposed of by gift or sale, and also that inheri- 
 tance does not obtain in respect of it. 7 
 
 1 Shahazadi Hajra Begum r. Khaja Hossein Ali Khan, 4 B. L. R., A. C., 
 
 86 ; S. C., 12 W. R.. 498. 
 
 - Muzhurool Huq r. Pubraj Ditarey Mohapattnr. 13 W. R., 235. 
 
 3 Doyal Chund Mullick r. Syud Keramut Ali, 16 W. R., 116. See Gulam 
 Husain Saiyad r. Adji Ajam Kurai Shi. 4 Mad.. 44. 
 
 4 Hidait-oon-nissa v. Syud Afzul Hossein. 2 N. W. P.. 420. 
 
 5 Moulvee Abdoolla r. M. S. Rajesri Dossea, 7 Sel. Rep., 268 ; S. D. A., 
 1846, p. 266 : and see M. S. Qadira v. Shah Kubeer-oo-deen Ahmnd. 3 Sel. 
 Rep.. 543 : Abul Hasan r. Haji Mohammad Masih Karbalai. 5 Sel. Rep , 
 
 87 ; Kulb Ali Hossein r. Syf Ali. 2 Sel. Rep.. 139 ; Moulvee Abdoollah r. 
 Ramzoo Dye. S. D. A.. 1847, 192 ; Jewun Doss Sahoo v. Shah Kubeer-ood- 
 deen. 2 Moo. I. A.. 390 ; S. C.. 6 W. R.. 3. 
 
 6 Fegredo v. Mahomed Mudessur. 15 W. R.. ~~>. 
 
 7 Jewun Doss Sahoo v. Shah Kubeer-ood-deen, 2 Moo. I. A., 390 ; S. C., 
 G W. R., 3. 
 
 49 
 
38 6 ALIENATION. 
 
 LECTURE The fact that the land is endowed must be proved, 
 XI1 - a mere nominal endowment will not prevent alienation. 1 
 
 endow- Where the whole of the profits of land are not devoted 
 
 to religious purposes, but the land is heritable property 
 Alienation b urc l enec l with a trust, for example, the keeping up of a 
 trust. ' saint's tomb, it may be alienated subject to the trust. 2 
 
 Mortgage By local custom in the Broach District, wuqf land may 
 be mortgaged, although the practice is contrary to Maho- 
 medan law ; for, by s. 26 of Reg. IV of 1827, the usage of a 
 district in which a suit may arise takes precedence over 
 the law of the defendant in the determination of civil 
 suits. 3 
 
 Lease of If an endowment be wholly ivuqf, a mutawalli is inca- 
 wuqf pro- pable of granting a lease extending beyond the period of 
 his own life. If, however, the office is hereditary, and the 
 mutawalli has a beneficial interest in the endowment, the 
 property is looked upon as an heritable estate burdened 
 with certain trusts, the proprietary right of which is vested 
 in the mutawalli and his heirs, and he can exercise the 
 right possessed by other proprietors, of granting leases, 
 even in perpetuity. 4 
 
 Where ryots holding land had been in the habit of trans- 
 ferring their holdings with the consent of the mutawallis, 
 it was held, that a mutawalli who considered the practice 
 to be illegal, was not justified in ousting a transferree, but 
 should have taken his legal remedy by action. 5 
 
 Transfer of The trustee of an endowment has not, as such, the power 
 trust. of transferring his trust to any other person, and where a 
 trustee is empowered to appoint another trustee to act for 
 him, he cannot transfer the right of exercising that power 
 to another or others. 6 An assignment or bequest of the 
 trust by the superintendent to his sons, on his deathbed, is 
 good, but not an assignment made during health, unless he 
 obtained it himself with such power. 7 
 
 1 Juddo Nundun Burral v. Kalee Coomar Ghose, S. D. A., 1852, p. 331. 
 
 2 Futtoo Bibee v. Bhurrutlall Bhukut, 10 W. R., 299. 
 
 3 Abas Alii Zenul Abadclin v. Gulam Muhammad Valad Baba Mirza, 
 1 Bom. H. C. R., Cr. Cas., 36. 
 
 * Dalrymple v. Khoondkar Azeezul Islam. S. D. A., 1858, p. 586 ; see 
 also Shoojat Ali v. Zumeerooddeen. 5 W. R.. 158. 
 5 Moulvee Abdoollah v. Ram Zoo Dye, S. D. A., 1847, p. 192. 
 8 Rup Narain iSingh v. Junko Bye. 3 Calc., 112. 
 7 Moohummud Sadik v. Moohummud Ali, 1 Sel. Rep., 19. 
 
REMOVAL OF TRUSTEE. 387 
 
 In dealing with the mutawalli of an endowment, it is LECTURE 
 not necessary for the purchaser to look further than to the XIL 
 j)o\ver of the mutawalli under his deed of trust. If the Purchager 
 deed gives him power and discretion to make a sale, it is f" trus- 
 not a matter of concern to the purchaser whether that tee ' 
 power or discretion is judiciously exercised or not. 1 
 
 Trustees of an endowment may, if they commit a breach Breach of 
 of trust in respect of the trust-property, be made to trust - 
 account to the persons interested in the endowment (see 
 Act XX of 1863, post, Appendix). But the fact that trustees 
 have failed to carry out the trusts, will not render the 
 endowment invalid, and cause the property to revert to the 
 heirs of the grantor. 2 
 
 AVhere a mutawalli was proved to have been guilty of 
 waste, the High Court ordered him to file in Court every 
 six months a true and complete account of his income, 
 expenditiu-e, and dealings with the property belonging to 
 the endowment. 3 
 
 If the superintendent of an endowment misconducts Removal of 
 himself, he may, according to the Mahomedan law, be trus tee. 
 removed by the ruling power (see Act XX of 1863, post 
 Appendix) ; and this is sufficient to protect the objects for 
 which the trust was created. 4 But this rule does not 
 apply to the case of a trustee who has an hereditary 
 proprietary right vested in him. 5 In some instances the 
 donor has the power of removing the superintendent. But 
 in order that such power may be exercised, it must have 
 been specially reserved at the time of endowment. 6 Where 
 a plaintiff sued to recover possession of certain property 
 as ivuqf property, alleging misconduct on the part of the 
 mutawalli in selling a portion of the property, but the 
 plaintiff did not state or prove, that he was entitled to 
 partake of the benefit of the endowment, nor did he show 
 that he was the heir, or even a near relative, of the person 
 who made the endowment, it was held, that the utmost 
 that he had a right to do as a descendant of the endower 
 
 1 Moonshee Golam AH r. 11. S. Sowlutoonissa Bibee. W. R.. 1864, p. 242. 
 
 2 Kasheshurree Dassee r. Krishnakarainee Dassee. 2 Hay. 557 ; Reasub 
 Ali -. Abbott. 12 W. R., 132 ; Syud Asheeroocldeen r. S. M. Drobo Moyee, 
 25 W. R., 537. 
 
 3 Syud Iindad Hossein r. Mahomed Ali Khan. 23 W. R., 150. 
 
 4 Hidait-oon-nissa v. Syud Afzul Hossein 2 N. W. P., 420 ; Moohum- 
 mud Sadik v. Moohummud Ali. 1 Sel. Rep., 19. 
 
 * Gulam Hussain Saib Saiyad r. Adji ftjam Saib Kuraishi, 4 Mad. 
 H. C. R., 44. Ibid. 
 
388 OFFICE OF TRUSTEE. 
 
 LECTURE was, to have the mutawalli removed and a new mutawalli 
 XII< appointed ; and that, in strictness, he ought to show cir- 
 cumstances which, according to law, would justify the 
 Court in selecting a mutawalli. 1 
 
 The appropriator of land for religious or charitable pur- 
 poses can confer the office of superintendent on another 
 at any time ; 2 and a trustee may appoint a manager, but 
 such appointment is not effectual beyond the incumbency 
 of the appointor. 3 
 
 Office of When property is appropriated for religious or charitable 
 trustee. purposes, it is vested in some person or persons whose duty 
 it is to preserve it and to carry out the trusts created. 
 According to both Sunni and Shiah law, the donor has a 
 right to reserve the superintendence of the ivuqf to him- 
 self, or to appoint someone else. 4 The right to the income 
 of land endowed for such purposes is inseparable from the 
 office for the support of which the land was granted, 5 and 
 cannot be claimed by the grantor's heirs. The fact that 
 a person is a Shiah does not disqualify him for the super- 
 vision of a wuqf made by a Sunni. 6 
 
 Female A female may act as mutawalli. She may manage the 
 
 iiutawaili temporal affairs of the endowment, but not the spiritual 
 
 affairs connected with it, the management of the latter 
 
 requiring peculiar personal qualifications. These duties 
 
 she may discharge by proxy. 7 
 
 Succession When property is devoted to religious or charitable pur- 
 t( ffi the poses, it is usual for the appropriator to lay down rules 
 for succession to the office of trustee, and upon these rules, 
 whether they are in writing, or have to be inferred from 
 evidence of usage, the question of succession depends. 8 
 Should no rules be laid down, the power of appointing a 
 trustee is vested in the appropriator during his life, and 
 upon his death, it is vested in his executor ; or should he 
 have left no executor, in the magistrate and sovereign 
 
 1 Hurruck Chund Sahoo r. Golam Shuruff. 10 W. R.. 458. 
 
 2 Sheik Abdool Khalek i: Poran Bibee, 25 W. R., 542. 
 
 3 Shah Moheeooddeen Ahmed v. Elahee Buksh, 6 W. R., 277. 
 
 4 Advocate-General v. Fatima Sultani Begam, 9 Bom. II, C. R.. 1.. 
 
 5 Jafar Mohiudin Sahib r. All Mohiudiii Sahib. 2 HI ad. II C. R., 19. 
 
 6 Doynl Chund Mullick r. Syud Keramut Ali, 16 W. R.. 116. 
 
 7 Doc d. Jaun Beebee v. AbJoollah Barber, 1 Fult., 345 ; M. S. Hyatee 
 Khanum r. M. S. Koolsum Khanum, 1 Sel. Rep., 217; Hussain Beebee v. 
 Hussain Sherif, 4 Mad. H. C. R., 23. 
 
 8 Shah Gulam Rahurutulla Sahib v. Mahommed Akbar Sahib, 8 Mad. 
 H. C. R,, 63. 
 
SUITS IN RESPECT OF WUQF PROPERTY. 389 
 
 power, that is to say, in the Court. 1 When the donor has LECTURE 
 specified the class from which the manager is to be selected, ^'l- 
 he cannot discharge his own trust-deed and name a person 
 not answering the proper description. He is bound by 
 the provisions of the deed, and the appropriator's right 
 of nomination of the person to succeed to the management 
 on his death must be confined to the class mentioned in 
 the deed. 2 
 
 In Aylui Mahomed Eusoof Moosadee v. Abdool Hossein 
 Khan 3 it was held, that the power of appointment of a 
 superintendent of a mosque, if not provided for by some 
 special rule in a deed of endowment, must be governed by 
 the ordinary rule of Mahomedan law, under which, in the 
 absence of all provision on the subject in the deed of 
 endowment, a superintendent is authorized on his death- 
 bed to appoint a successor, though the appropriator has 
 not given him a general permission. And in Peet Koomuar 
 v. Chutter Dharee Singh* that when the mutawalli of 
 an endowment dies without nominating a successor, the 
 management must revert to the heirs of the person who 
 endowed the property. 
 
 Where, so far as the will of a founder could be ascertained 
 from the usage of former days, it seemed to authorize a 
 mode of succession originating in an appointment by the 
 incumbent of a successor, it was held, that the Court would 
 not be authorized to find in favour of any rule of succession 
 by primogeniture, solely from the circumstance that the 
 persons appointed were usually the elder sons. 5 
 
 A suit to recover property alleged to be wuqf belongs Suits in 
 not to the heirs or descendants of the settlor, but to the J^ C p r . 
 mu ta wall is jointly. 6 But a person who has been convicted perty. 
 of having misappropriated iviiqf property cannot obtain 
 tlie assistance of the Court to recover the property in order 
 to enable him to exercise the office of mutawalli. 7 When 
 
 1 Moohumud Sadik r. Moohumud Ali, 1 Sel. Rep.. 18 ; Muhammad Kasim 
 r. Muhammad Alum Kiyamuddeen. 5 Sel. Rep.. 133 ; Advocate-General r. 
 Fatima Sultani Begam. 9 Bom. H. C. R.. 19 ; Phate Saheb Bibi v. Damodar 
 Premji. I. L. R., 3 Bomb.. 84. See also Act XX of 1863, post, Appendix. 
 
 2 Advocate-General v. Fatima Sultani Begam, 9 Bom. H. C. R., 19. 
 8 S. D. A. 1857. p. 640. 
 
 4 13 W. R., 396. 
 
 s Shah Gulam Rahumtulla Sahib r. Mahommed Akbar Sahib, 8 Mad. H. 
 C. R.. 63. 
 
 6 Phate Saheb Bibi v. Damodar Premji. I. L. R., 3 Bomb., 84. 
 
 7 Aga Mahomed Kumul Tehrauee , Aga Abbas Tehranee, S. D. A., 
 185'J, p. 285. 
 
 
390 SUITS IN EESPECT OF WUQF PROPERTY. 
 
 LECTURE the Court, in the exercise of its charitable jurisdiction, is 
 XIJ[ - called upon to adjudicate between conflicting claims of 
 dissident parties in a community distinguished by some 
 religious profession, the rights of the litigants will be 
 regulated by reference to the religious tenets held by the 
 community in its origin, and a minority holding those 
 tenets will prevail against a majority which has receded 
 from them. 1 
 
 Where a plaintiff who had for eighteen years held a por- 
 tion of certain lands, though termed wuqf, as privately 
 heritable and divisible lands, other portions being similarly 
 held by other parties, co-heirs with the plaintiff, of the last 
 occupiers, it was held, that the plaintiff could not be allow- 
 ed to sue for exclusive possession of the whole of the lands 
 as mutawalli, upon tender of proof that they were wuqf3 
 In a suit for possession of land granted in trust for purposes 
 connected with the preservation of the tomb of a Mahome- 
 dan saint, where the plaintiff claimed as son of the last 
 mutawalli, on the allegation that he had been dispossessed 
 during his minority, and the defendant contended that the 
 property had never been in the possession of mutawallis, 
 but had been divided among the original grantee's heirs, 
 from one of whom the portion in dispute had come into 
 the possession of his (the defendant's) vendor, it was held, 
 that the material point to try was, whether the plaintiff's 
 ancestors had, from the time of the grant, been in possession, 
 or whether the land had been inherited according to the 
 ordinary rules of Mahomedan inheritance by the heirs of 
 the grantee. 3 
 
 The worshippers at a public mosque can maintain a suit 
 to restrain the superintendents of such mosque from using 
 it or its appurtenant rooms for purposes other than those 
 for which they were intended to be used, and from doing 
 acts which are likely to obstruct worshippers from enter- 
 ing or leaving such mosque. 4 
 
 1 Advocate-General v. Muhammad Husen Huseni, 12 Bom. H. C. R., 
 323. 
 
 2 Hajee Nooroollah v. Meer Waris Hossein, S. D. A. 1853, p. 411. 
 * Reasut All v. Abbott. 12 W. R.. 132. 
 
 4 Abdul Rahman v. Yar Muhammed, I. L. R., 3 AIL, 636. 
 
APPENDIX. 
 
 ng^~ 
 
 REGISTRATION OF SOCIETIES. 
 
 ACT XXI OF 1860. 
 
 An Act for the Registration of Literary, Scientific, and Charitable 
 
 Societies. 
 
 WHEREAS it is expedient that provision should be made for 
 improving the legal condition of Societies 
 established for the promotion of literature, 
 
 science, or the fine arts, or for the diffusion of useful knowledge, 
 or for charitable purposes ; It is enacted as follows : 
 
 I. Any seven or more persons associated for any literary, 
 scientific, or charitable purpose, or for any 
 
 Societies formed by guch purpose as is described in section 
 memorandum or asso- -v*v e \\ \ i i i M 
 
 ciation. *"^ ot tllls ^ cfc > ma j"> "7 subscribing 
 
 their names to a memorandum of asso- 
 ciation, and filing the same with the Registrar of Joint Stock 
 Companies umlfr Act XIX of 1857, form themselves into a society 
 under this Act. 
 
 II. The memorandum of association 
 
 Memorandum of as- j R contain the following things (that 
 sociation. . . 
 
 is to say) : 
 
 The name of the society. 
 
 The objects of the society. 
 
 The names, addresses, and occupations of the governors, 
 council, directors, committee, or other governing body to whom, 
 by the rules of the society, the management of its affairs is 
 entrusted. A copy of the rules and regulations of the society, 
 certified to be a correct copy by not less than three of the mem- 
 bers of the governing body, shall be filed with the memorandum 
 of association. 
 
 III. Upon such memorandum and certified copy being filed, 
 the Registrar shall certify under his hand 
 
 Registration. thafc the society is re gi st ered under this 
 
392 REGISTRATION OF SOCIETIES. 
 
 APPDX. Act There shall be paid to the Registrar, for every such regis- 
 
 tration, a fee of fifty rupees, or such smaller fee as the Governor 
 
 General of India in Council may, from time to time, direct ; and 
 all fees so paid shall be accounted for to the Government. 
 
 IV. Once in every year, on or before the 14th day succeeding 
 
 the day on which, according to the rules 
 
 ing bodv al to 8 befird nag ' Of the Societ y> the annual * cneral meetin * 
 of the society is held, or if the rules do 
 
 not provide for an annual general meeting, in the month of 
 January, a list shall be filed with the Registrar of Joint 
 Stock Companies, of the names, addresses, and occupations of the 
 governors, council, directors, committee, or other governing 
 body then entrusted with the management of the affairs of the 
 society. 
 
 V. The property, moveable and immoveable, belonging to a 
 
 society registered under this Act, if not 
 
 Property of society vested j trustees, shall be deemed to be 
 now to be vested. ... . . ' , . . . 
 
 vested, for the time being, in the govern- 
 ing body of such society, and in all proceedings, civil and crimi- 
 nal, may be described as the property of the governing body of 
 Buch society by their proper title. 
 
 VI. Every society registered under this Act may sue or be 
 
 sued in the name of the president, chair- 
 How suits by and man or principal secretary, or trustees, as 
 against societies to be ,,,,*,, , 
 
 brought. shall be determined by the rules and regu- 
 
 lations of the society ; and in default of 
 
 such determination, in the name of such person as shall be 
 appointed by the governing body for the occasion : provided that 
 it shall be competent for any person having a claim or demand 
 against the society, to sue the president, or chairman, or principal 
 secretary, or the trustees thereof, if on application to the govern- 
 ing body some other officer or person be not nominated to be the 
 defendant. 
 
 VII. No suit or proceeding in any Civil Court shall abate 
 
 or discontinue by reason of the person, by 
 Suits not to abate. . u * i- 
 
 or against whom such suits or proceedings 
 
 shall have been brought or continued, dying, or ceasing to fill 
 the character in the name whereof he shall have sued, or been 
 sued, but the same suit or proceeding shall be continued in the 
 name of or against the successor of such person. 
 
 VIII. If a judgment shall be recovered against the person 
 
 or officer named on behalf of the society, 
 such J^gment shall not be put in force 
 against the property, moveable or im- 
 
 moveable, or against the body of such person or officer, but 
 against the property of the society. The application for execu- 
 tion shall set forth the judgment, the fact of the party agaiust 
 
ACT xxi OF I860. 393 
 
 whom it shall have been recovered having sued or having been sued, APPDX. 
 
 as the case may be, on behalf of the society only, and shall require to 
 
 have the judgment enforced against the property of the society. 
 
 IX. Whenever by any bye-law duly made in accordance with 
 
 the rules and regulations of the society. 
 
 Or if the rules do not P rovide for ' e *- 
 ing of bye-laws, by any bye-law made at 
 
 a general meeting of the members of the society convened for 
 the purpose (for the making of which the concurrent votes of 
 three-fifths of the members present at such meeting shall be 
 necessary), any pecuniary penalty is imposed for the breach of 
 any rules or bye-law of the society, such penalty, when accrued, 
 may be recovered in any Court having jurisdiction where the 
 defendant shall reside, or the society shall be situate, as the 
 governing body thereof shall deem expedient. 
 
 X. Any member who may be in arrear of a subscription 
 
 which, according to the rules of the society, 
 |.e is bound to pay, or who shall possess 
 himself of, or detain, any property of the 
 society, in a manner or for a time contrary to such rules, or shall 
 injure or destroy any property of the society, may be sued for 
 such arrear or for the damage accruing from such detention, 
 injury, or destruction of property in the manner hereinbefore pro- 
 vided. But if the defendant shall be successful in any suit or 
 other proceeding brought against him at the instance of the 
 society, and shall be adjudged to recover his costs, he may elect 
 to proceed to recover the same from the officer in whose name 
 the suit shall be brought, or from the society ; and in the latter 
 case shall have process against the property of the said society 
 in the manner above described. 
 
 XI. Any member of the society, who shall steal, purloin, or 
 
 embezzle any money or other property, 
 
 Members guilty of or w iif u u y an d maliciously destroy or 
 offences punishable as . . ,. % / 
 
 strangersf injure any property of such society, or 
 
 shall forge any deed, bond, security for 
 
 money, receipt or other instrument, whereby the funds of the 
 society may be exposed to loss, shall be subject to the same 
 prosecution, and, if convicted, shall be liable to be punished m 
 like manner, as any person not a member would be subject and 
 liable to in respect of the like offence. 
 
 XII. Whenever it shall appear to the governing body of any 
 
 society registered under this Act, which 
 
 Societies enabled to ^as been established for any particular 
 P-pose or purposes, that it is advisable 
 to alter, extend, or abridge such purpose 
 to or for other purposes within the meaning of this Act, or to 
 amalgamate such society, either wholly or partially, with any 
 
 50 
 
394 REGISTRATION OF SOCIETIES. 
 
 APPDX. other society, such governing body may submit the proposition 
 
 to the members of the society in a written or printed report, 
 
 and may convene a special meeting for the consideration thereof 
 according to the regulations of the society ; but no such propo- 
 sition shall be carried into effect unless such report shall have 
 been delivered or sent by post to every member of the society 
 ten days previous to the special meeting convened by the govern- 
 ing body for the consideration thereof, nor unless such proposi- 
 tion shall have been agreed to by the votes of three-fifths of the 
 members delivered in person or by proxy, and confirmed by the 
 votes of three-fifths of the members present at a second special 
 meeting convened by the governing body at an interval of one 
 month after the former meeting. 
 
 XIII. Any number not less than three-fifths of the members 
 Provision for the dis- of an 7 society may determine that it shall 
 
 eolation of societies be dissolved, and thereupon it shall be 
 and adjustment of their dissolved forthwith, or at the time then 
 affairs. agreed upon, and all necessary steps shall 
 
 be taken for the disposal and settlement of the property of the 
 society, its claims and liabilities, according to the rules of the 
 said society applicable thereto, if any, and, if not, then as the 
 governing body shall find expedient; provided that, in the event 
 of any dispute arising among the said governing body or the 
 members of the society, the adjustment of its affairs shall be 
 referred to the principal Court of original civil jurisdiction of 
 the district in which the chief building of the society is situate ; 
 and the Court shall make such order in the matter as it shall 
 deem requisite. Provided that no society shall be dissolved unless 
 three-fifths of the members shall have expressed a wish for such 
 dissolution by their votes delivered in person, or by proxy, at a general 
 meeting convened for the purpose. Provided that, whenever the 
 Government is a member of, or a contributor to, or otherwise 
 interested in any society registered under this Act, such society 
 shall not be dissolved without the consent of Government. 
 
 XIV. If, upon the dissolution of any society registered under 
 
 this Act, there shall remain, after the 
 
 Upon a dissolution satisfaction of all its debts and liabilities, 
 
 no member to receive -i , ,, in 
 
 p^ ofit any property whatsoever, the same shall 
 
 not be paid to or distributed among the 
 
 members of the said society or any of them, but shall be given 
 to some other society, to be determined by the votes of not less 
 than three-fifths of the members present, personally or by proxy, 
 at the time of the dissolution, or in default thereof by such 
 Court as aforesaid. Provided, however, that this clause shall 
 Proviso for joint not apply to any society which shall have 
 stock companies. been founded or established by the contri- 
 
 butions of shareholders in the nature of a joint stock company. 
 
ACT xxi OP 1860. 395 
 
 XV. For- the purposes of this Act, a member of a society APPDX. 
 
 Who is a member. sha11 be a P erson > wbo > having been admit- 
 
 ted therein according to the rules and 
 
 regulations thereof, shall have paid his subscription, or shall have 
 signed the roll or list of members thereof, and shall not have 
 resigned in accordance with such rules and regulations ; but in 
 all proceedings under this Act, no person shall be entitled to 
 vote or be counted as a member whose subscription at the time 
 shall have been in arrear for a period exceeding three months. 
 
 XVI. The governing body of the society shall be the 
 
 , , governors, council, directors, committee, 
 y trustees > or other body to whom, by the 
 rules and regulations of the society, the 
 management of its affairs is entrusted. 
 
 XVII. Any company or society established for a literary, 
 
 scientific, or charitable purpose, and regis- 
 
 "^ U " d - Ac ' *"" f 1850, or any 
 such society established and constituted 
 previously to the passing of this Act, 
 but not registered under the said Act XLIII of 1850, may, 
 at any time hereafter, be registered as a society under this Act, 
 subject to the proviso that no such company or society shall be 
 registered under this Act, unless an assent to its being so regis- 
 tered has been given by three-fifths of the members present 
 personally or by proxy at some general meeting convened for 
 that purpose by the governing body. In the case of a company 
 or society registered under Act XLIII of 1850, the directors 
 shall be deemed to be such governing body. In the case of a 
 society not so registered, if no such body shall have been consti- 
 tuted on the establishment of the society, it shall be competent 
 for the members thereof, upon due notice, to create for itself a 
 governing body to act for the society thenceforth. 
 
 XVIII. In order to any such society as is mentioned in the 
 Such societies to file last preceding section obtaining registry 
 
 memorandum. &c., with under this Act, it shall be sufficient that 
 Registrar of Joint the governing body file with the Registrar 
 Stock Companies. of j oiat g tock Companies, under Act XIX 
 
 of 1857, a memorandum showing the name of the society, the 
 objects of the society, and the names, addresses, and occupations 
 of the governing body, together with a copy of the rules and 
 regulations of the society certified as provided in section II, and 
 a copy of the report of the proceedings of the general meeting 
 at which the registration was resolved on. 
 
 XIX. Any person may inspect all documents filed with the 
 
 Registrar under this Act on payment of a 
 
 fee of one ru P ee for each ins P ection 5 and 
 any person may require a copy or extract- 
 
396 RELIGIOUS ENDOWMENTS. 
 
 APPDX. of any document or any part of any document to be certified by 
 
 the Registrar, on payment of two annas for 
 
 Certified copies. every hundred words of such, copy or ex- 
 
 tract ; and such certified copy shall be 
 
 pnmd facie evidence of the matters therein contained in all legal 
 proceedings whatever. 
 
 XX. The following societies may be registered under this Act : 
 charitable societies; the military orphan 
 funds or societies established at the several 
 presidencies of India; societies established 
 
 for the promotion of science, literature, or the fine arts ; for instruc- 
 tion, the diffusion of useful knowledge, the foundation or mainte- 
 nance of libraries or reading-rooms for general use among the 
 members or open to the public ; or public museums and galleries 
 of paintings and other works of art ; collections of natural his- 
 tory; mechanical and philosophical inventions, instruments, or 
 designs. 
 
 RELIGIOUS ENDOWMENTS. 
 
 ACT XX OF 1863. 
 
 An Act to enable the Government to divest itself of the manage- 
 ment of Religious Endowments. 
 
 WHEREAS it is expedient to relieve the Boards of Revenue and 
 the Local Agents in the Presidency of 
 
 Preamble. Fort William in Bengal, and the Presi- 
 
 dency of Fort Saint George, from the 
 
 duties imposed on them by Regulation XIX of 1810 of the Bengal 
 Code (for the due appropriation of the rents and produce of lands 
 granted for the support of mosques, Hindu temples, colleges, 
 and other purposes ; for the maintenance and repair of bridges, 
 serays, kuttras, and other public buildings ; and for the custody 
 and disposal of nuzzool property or escheats) and Regulation 
 VII of 1817 of the Madras Code (for the due appropriation of the 
 rents and produce of lands granted for the support of mosques, 
 Hindoo temples, and colleges, or other public purposes ; for 
 the maintenance and repair of bridges, choultries, or chuttrums, 
 and other public buildings ; and for the custody and disposal of 
 escheats), so far as those duties embrace the superintendence of 
 lands granted for the support of mosques or Hindoo temples, 
 and for other religious uses, the appropriation of endowments 
 made for the maintenance of such religious establishments, the 
 repair and preservation of buildings connected therewith, and 
 the appointment of trustees or managers thereof, or involve 
 any connexion with the management of such religious establish- 
 ments ; and whereas it is expedient for that purpose to repeal so 
 
ACT xx OF 1863. 397 
 
 much of Regulation XIX of 1810 of the Bengal Code, and Regu- APPDX. 
 
 lation VII of 1817 of the Madras Code, as relate to endowments 
 
 for the support of mosques, Hindoo temples, or other religious 
 purposes ; It is enacted as follows : 
 
 I. So much of Regulation XIX of 1810 of the Bengal Code, 
 
 and so much of Regulation VII of 1817 of 
 
 Regulations repealed, the Madras Code, as relate to endowments 
 for the support of mosques, Hindoo tem- 
 ples, or other religious purposes, are repealed. 
 
 II. In this Act words importing the singular number shall 
 j- , include the plural, and words importing the 
 
 plural number shall include the singular. 
 Gender Words importing the masculine gender 
 
 shall include females. 
 
 The words ' Civil Court ' and ' Court ' shall mean the prin- 
 cipal Court of original civil jurisdiction in the District in which 
 the mosque, temple, or religious establishment is situate, relat- 
 ing to which, or to the endowment whereof, any suit shall be 
 instituted or application made under the provisions of this Act. 
 
 III. In the case of every mosque, temple, or other religious 
 
 establishment to which the provisions of 
 
 Local Government to either of the Regulations specified in sec- 
 make special provision tion j are app ij ca ble, and the nomination 
 respecting mosques, &c., . ., 
 in certain cases. * " ie trustee, manager, or superintendent 
 
 whereof, at the time of the passing of this 
 
 Act, is vested in, or may be exercised by, the Government or any 
 public officer, or in which the nomination of such trustee, mana- 
 ger, or superintendent shall be subject to the confirmation of the 
 Government or any public officer, the Local Government shall, as 
 goon as possible after the passing of this Act, make special provi- 
 sion as hereinafter provided. 
 
 The words " trustee, manager, or superintendent of a mosque." etc., 
 mentioned in this Act, mean the trustee, manager, or superintendent of a 
 mosque, etc., to which the provisions of the Act are applicable, not the 
 trustee, etc., of any mosque ; and such persons are those to whom the 
 provisions of the Regulations mentioned in a. I were applicable. The 
 mosques, etc., to which the provisions of those Regulations were appli- 
 cable, were mosques for the support of which endowments had been 
 granted in land by the Government of the country or by individuals ; and 
 the mosques, etc., to which the provisions of this Act apply are, not any 
 mosque, etc.. but any mosque for the support of which such endowments 
 have been made Jan All v. Bam Nath Mundul, Reg. App. No. 149 of 
 1880. I. L. R., 8 Calc.. January number. 
 
 Where the tomb of a reputed saint became a place of pilgrimage, and 
 an endowment was made for the maintenance of the shrine and for the 
 performance of certain religious ceremonies, and it appeared that there 
 was a practice on the part of the proprietors and the managers of the 
 institution to divide among themselves the residue of the income, and 
 to dispose by way of sale or mortgage of the share enjoyed by them, 
 it was held, that this was a religious institution within the meaning of 
 the Act. Fakurudin Sahib v. Ackcnl Sahib, I. L. R., 2 Mad., 197, 
 
398 RELIGIOUS ENDOWMENTS. 
 
 APPDX. A committee appointed under this Act have power to dismiss trustees 
 
 or superintendents of temples described in this section, without having 
 
 recourse to a civil suit ; but such powers can only be exercised on good 
 and sufficient grounds. t'hinna Itangaiyangar v. Subbraya Mudali. 
 3 Mad. H. C. R.,334. Where no such grounds appeared, a suit, brought 
 by the person who had been appointed by the committee as superinten- 
 dent in place of the defendants for the recovery of the temple and the 
 property belonging to it, was dismissed. Ibid. 
 
 IV. In the case of every such mosque, temple, or other reli- 
 
 gious establishment which, at the time 
 
 Transfer to indepen- of the passing of this Act, shall be under 
 dent trustees, &c., of the management of any trustee, manager, 
 all property belonging or superintendent, whose nomination shall 
 to their trusts, &c., re- , , j , , 
 
 maining in charge of no , t . vest ln > nor J exercised by, nor be 
 Revenue Board or subject to the confirmation of the Govern- 
 others. ment or any public officer, the Local 
 
 Government shall, as soon as possible, 
 
 after the passing of this Act, transfer to such trustee, manager, 
 or superintendent all the landed or other property which, at the 
 time of the passing of this Act, shall be under the superinten- 
 , dence or in the possession of the Board of Revenue or any local 
 
 agent, and belonging to such mosque, temple, or other religious 
 establishment, except such property as is hereinafter provided ; 
 and the powers and responsibilities of the Board of Revenue 
 and the local agents, in respect to such mosque, temple, or other 
 religious establishment, and to all land and other property so 
 transferred, except as regards acts done and liabilities incurred 
 by the said Board of Revenue, or any local agent, previous to 
 such transfer, shall cease and determine. 
 
 Where the manager of endowed property had been ejected by the 
 Collector under Regulation VII of 1817, it was held, that, on the passing 
 of this Act, the manager became entitled by virtue of this section to the 
 restoration of the endowment. Jtisagheri (fosamiar v. The Collector (if 
 Tanjore, 5 Mad. H. C. R., 334. 
 
 In 1849 the Board of Revenue interfered in the affairs of a temple. 
 It did not appear whether any transfer of property had been made under 
 this section ; but, in 1865, the Judge of Patna appointed a manager of the 
 temple. It was held, that the right of Government officers to control the 
 affairs of the temple had been sufficiently proved Dhurm Singh v. 
 Klssen Singh, I. L. R., 7 Calc. 767. 
 
 V. Whenever from any cause a vacancy shall occur in the 
 
 office of any trustee, manager, or superin- 
 
 Procedure in case of tendent, to whom any property shall have 
 dispute as to right of beeu transferred under the last preceding 
 succession to vacated ,. , ,. in- 
 
 trusteeship &c. section, and any dispute shall arise respect- 
 
 ing the right of succession to such office, 
 
 it shall be lawful for any person interested in the mosque, temple, 
 or religious establishment to which such property shall belong, 
 or in the performance of the worship or of the service thereof, 
 or the trusts relating thereto, to apply to the Civil Court to 
 
ACT xx OF 18G3. 309 
 
 appoint a manager of such mosque, temple, or other religious estab- APPDX, 
 lishment, and thereupon such Court may appoint such manager, - 
 to act until some other person shall by suit have established his 
 right of succession to such office. The manager so appointed by 
 the Civil Court shall have, and shall exercise, all the powers which, 
 under this or any other Act, the former trustee, manager, or super- 
 intendent, in whose place such manager is appointed by the Court, 
 had or could exercise, in relation to such mosque, temple, or 
 religious establishment, or the property belonging thereto. 
 
 Where an application by a petitioner under this section to be appointed 
 manager of a religious endowment was rejected by the Judge after hear- 
 ing both sides, on the ground that there had been no transfer of the pro- 
 perty by the Local Government under s. 4, the Court refused to interfere 
 under cl. 15 of the Charter, holding, that the Judge had not declined to 
 accept jurisdiction in the case, and that he was right in refusing to 
 accept the jurisdiction vested in him by this section. Khajah Ashmf 
 HOSSC'DI, v. M. S. Hazara Uegum, 18 W. E., 396. 
 
 VI. The rights, powers, and responsibilities of every trustee, 
 
 manager, or superintendent, to whom the 
 
 Rights, powers, and land and other property of any mosque, 
 responsibilities of trus- temp i e or ot h er re ljgious establishment is 
 tees, &.C.. to whom any r e 7 , . ,, .. , . 
 
 charge shall be trans- transferred in the manner prescribed in sec- 
 ferred. tionlV of this Act, as well as the conditions 
 
 of their appointment, election, and removal, 
 
 shall be the same as if this Act had not been passed, except in 
 respect of the liability to be sued under this Act, and except in 
 respect of the authority of the Board of Revenue and local 
 agents, given by the Regulations hereby repealed, over such 
 mosque, temple, or religious establishment, and over such trus- 
 tee, manager, or superintendent, which authority is hereby 
 determined and repealed. All the powers which might be exer- 
 cised by any Board, or local agent, for the recovery of the rent of 
 land or other property transferred under the said section IV of this 
 Act^ may, from the date of such transfer, be exercised by any 
 trustee, manager, or superintendent to whom such transfer is made. 
 
 VII. In all cases described in section III of this Act, the 
 
 Local Government shall once for all ap- 
 Appointmentofcom. . or mQre committees in e 
 
 mittees. ?. . . T ,. . . . 
 
 Division or District, to take the place, 
 
 and to exercise the powers, of the Board of Revenue and the 
 local agents under the Regulations hereby repealed. Such 
 committee shall consist of three or more persons, and shall, per- 
 form all the duties imposed on such Board and local agents, 
 except in respect of any property which is specially provided for 
 under section XXI of this Act. 
 
 A district committee has no right to call for accounts from the trustees 
 of temples which are within s. 4. Venkatabalakrishna Chettiyar v. 
 KalltjaNarama\yangar,5 Mad. H. C. R., 48 ; Ramiengarv. Gnanasmbanda 
 Pandarasannada, ib., 53. 
 
400 RELIGIOUS ENDOWMENTS. 
 
 APPDX. VIII. The members of the said committee shall be appoint- 
 ed from among persons professing the 
 
 Provision as toquali- re lj gion f or tne purp oses of which the 
 fications for member of ,. . 
 
 such committee. mosque, temple, or other religious estab- 
 
 lishment was founded, or is now main- 
 tained, and in accordance, so far as can be ascertained, with the 
 general wishes of those who are interested in the maintenance of 
 such mosque, temple, or other religious establishment. The 
 appointment of the committee shall be notified in the official 
 Gazette. In order to ascertain the general wishes of such per- 
 sons in respect of such appointment, the Local Government may 
 cause an election to be held, under such rules ("not consistent 
 with the provisions of this Act) as shall be framed by such Local 
 Government. 
 
 IX. Every member of a committee appointed as above shall 
 
 hold his office for life, unless removed for 
 
 Every member to be misconduct or unfitness, and no such 
 fr^ovSl 1 Jorm" member shall be removed except by a n 
 conduct &c. order of the Civil Court as hereinafter 
 
 provided. 
 
 X. Whenever any vacancy shall occur among the members 
 
 of a committee appointed as above, a new 
 
 g meraber sha11 be elected to fil1 the cancy 
 
 . 
 
 by the persons interested as above pro- 
 vided. The remaining members of the committee shall, as soon, 
 as possible, give public notice of such vacancy, and shall fix a 
 day, which shall not be later than three months from the date of 
 such vacancy, for an election of a new member by the persons 
 interested as above provided, under rules for elections which shall 
 be framed by the Local Government, and whoever shall be then 
 elected, under. the said rules, shall be a member of the committee 
 to fill such vacancy. If any vacancy as aforesaid shall not be 
 filled up by such election as aforesaid within three months after 
 it has occurred, the Civil Court, on the application of any person 
 whatever, may appoint a person to fill the vacancy, or may order 
 that the vacancy be forthwith filled up by the remaining members 
 of the committee, with which order it shall then be the duty of 
 such remaining members to comply ; and if this order be not com- 
 plied with, the Civil Court may appoint a member to fill the said 
 vacancy. 
 
 XI. No member of a committee appointed under this Act 
 
 shall be capable of being, or shall act, 
 No member of a com- also as a trustee, manager, or superin- 
 mittee to be trustee, tendent of the mosque, temple, or other 
 &c.. of the mosque, &c., ,. . .ITT r fi 
 
 under charge of such religious estabhshment, for the manage- 
 committee. ment of which such committee shall have 
 
 been appointed. 
 
ACT XX OF 1863. 401 
 
 XII. Immediately on the appointment of a committee, as APPDX. 
 
 above provided, for the superintendence of 
 
 On appointment of ail y SIIC ii mosque, temple, or religious 
 
 JSfS&i Sl'er "fblM.-" t, d for the managemeut of 
 
 property. lts Mm the Board of Revenue, or the 
 
 local agents acting under the authority of 
 
 the said Board, shall transfer to such committee all landed or 
 other property which at the time of appointment shall be under 
 the superintendence or in the possession of the said Board or 
 local agents and belonging to the said religious establishment, 
 except as is hereinafter provided for, and thereupon the powers 
 and responsibilities of the Board and the local agents in respect 
 to such mosque, temple, or religious establishment, and to all land 
 and other property so transferred, except, as above, and except as 
 regards acts done and liabilities incurred by the said Board or 
 agents previous to such transfer, shall cease and determine. All 
 the powers which might be exercised by any Board or local agent 
 for the recovery of the rent of land or other property transferred 
 under this section, may, fruin the date of such transfer, be exer- 
 cised by such committee to whom such transfer is made. 
 
 XIII. It shall be the duty of every trustee, manager, and 
 
 superintendent of a mosque, temple, or 
 Account of receipts , ,1- i i \ 
 
 and disbursements. religious establishment, to which the pro- 
 
 visions of this Act shall apply, to keep 
 
 regular accounts of his receipts and disbursements in respect of 
 the endowments and expenses of such mosque, temple, or other 
 religious establishment; and it shall be the duty of every com- 
 mittee of management, appointed or acting under the authority 
 of this Act, to require from every trustee, manager, and super- 
 intendent of such mosque, temple, or other religious establish- 
 ment the production of such regular accounts of such receipts and 
 disbursements at least once in every year, and every such commit- 
 tee of management shall themselves keep such accounts thereof. 
 
 XIV. Any person or persons interested in any mosque, temple, 
 
 or religious establishment, or in the per- 
 
 Any person interest- f ormance o f the worship, or of the ser- 
 ed may sue in case of . ., / .1 i t - *t, 
 
 breach of trust, &c. vlce ^eof, or the trusts relating there- 
 
 to, may, without joining as plaintiff any 
 
 of the other persons interested therein, sue before the 
 Civil Court the trustee, manager, or superintendent of such 
 mosque, temple, or religious establishment, or the member of 
 any committee appointed under this Act, for any misfeasance, 
 breach of trust, or neglect of duty, committed by such trustee, 
 manager, superintendent, or member of such committee, iu 
 respect of the trusts vested iu or confided to them, respec- 
 tively, and the Civil Court may direct the specific performance of 
 any act by such trustee, manager, superintendent, or member of 
 
 51 
 
402 RELIGIOUS ENDOWMENTS. 
 
 APPDX. a committee, and may decree damages and costs against such 
 
 trustee, manager, superintendent, or member of a committee, 
 
 and may also direct the removal of such trustee, manager, 
 superintendent, or member of a committee. 
 
 This section is generally applicable to all religious endowments, and 
 while it in one sense restrains the ordinary Courts from dealing with 
 cases against trustees of religious endowments, it gives special facilities 
 for suits in the principal Civil Court of the district by any of the pe'rsona 
 mentioned in these endowments. Dhurm Singh v. Kisen Singh. I. L. 
 R,, 7 Calc.. 767. 
 
 Under s. 15 of Reg. XIX of 1810. it was decided that a curator, removed 
 by the Board of Revenue on the ground of misconduct, might bring an 
 action to try the sufficiency of that ground. \Vasik All Khan v. The 
 Government, 5 Sel.. 370 ; 6 Ibid, 130. 
 
 In a suit by two of the worshippers at a certain mosque, instituted, 
 after having obtained the sanction of the Advocate-General under s. 539 
 of the Civil Procedure Code, against the mutawalli of the mosque, and 
 two other persons to whom the mutawalli had mortgaged part of the 
 endowed property to secure the repayment of a loan, it appeared that 
 one of the mortgagees had sold some of the nuqf property in execu- 
 tion of a decree which he had obtained upon his mortgage, and the 
 property had been purchased by the other mortgagee. The plaintiffs 
 prayed that the property purchased might be declared to be nuqf ; that 
 the sale in execution might be declared to be invalid : that a mutawalli 
 might be appointed by the Court ; and that the costs of doing the acts of 
 the miqf might be defrayed from the profits of the property belonging 
 to the endowment. It was held, that so far as regarded that portion of 
 the prayer as fell within the provisions of s. 539 of the Code, the 
 plaintiffs were not entitled to sue. as they were not " persons having a 
 direct interest in the trust T ' within the meaning of that section, and 
 that the suit should have been instituted under this section after sanc- 
 tion obtained under s. 18 ; and that although the plaintiffs might possibly 
 have obtained leave to sue under s. 30 of the Code on behalf of them- 
 selves and the other persons attending the mosque, they not having 
 obtained such leave were not entitled to institute the suit for the purpose 
 of obtaining the relief asked for in the other prayers of the plaint. 
 Jan Ali v. Ram Xath M undid, Reg. App., Xo. 149 of 1880, I. L. R., 
 8 Calc., January number. 
 
 Where a sacred book was kept at a temple and was an object of vene- 
 ration to the members of the sect entitled to worship there, it was held, 
 that a suit would lie under this section, by some of the persons interested 
 in the temple, to restrain the superintendent from removing the book to 
 another place, and that he should be directed to retain the book as a 
 portion of the furniture of the temple. Dhurm Singh v. Kisscn Singh, 
 I. L. R., 7 Calc.. 767. 
 
 An order under this section should be mandatory and not prohibi- 
 tory. Ibid. 
 
 This section empowers the Court to remove trustees, whether heredi- 
 tary or selected. faknrudin Sahib v. Ackeni Sahib. I. L. R.. 2 Mad.. 197. 
 
 XV. The interest required in order to entitle a person to sue 
 under the last preceding section need not 
 
 Nature of interest ^ e a p ecun i ar y or a direct or immediate, 
 entitling a person to . , 
 
 interest, or such an interest as would 
 
 fcllc. 
 
 entitle the person suing to take any part in 
 
 the management or superintendence of the trusts. Any person 
 ha?ing a right of attendance, or having been in the habit of 
 
ACT xx OF 1863. 403 
 
 attending at the performance of the worship or service of any APPDX. 
 
 mosque, temple, or religious establishment, or of partaking 
 
 in the benefit of any distribution of alms, shall be deemed to be a 
 person interested within the meaning of the last preceding section. 
 
 The suits to which this Act applies are such as come within the 
 
 Nature of suits contem- Provisions of s. 14, which only refer to suits 
 
 plated bv Act. against trustees, managers, or superintendents, 
 
 or the members of a district committee while in 
 
 office. Jeyangarnl<iraru v. Sri Hati Durma Dostji, 4 Mad. H. C. R., 2. 
 It applies, in fact, to such religious trusts and endowments which had 
 been, or might come to be. under the management of the Government. 
 Kalee Churn Glree v. Golabi, 2 C. L. R., 128. It does not apply to a suit 
 brought by the dhurmakarta of a temple and one of its worshippers to 
 compel the heir of the late manager to make good, out of the property 
 inherited by him. the deficiency in the decaxthannm funds caused by the 
 breach of trust and misapplication of the late manager. Jcyangarula- 
 raru v. Sri Hati Durma Doxxji. 4 Mad. H. C. R., 2. 
 
 A suit for the removal of a mohunt and the appointment of another in 
 his place is not within the Act. Kisliore Bon Mohnnt v. Kalee Churn 
 Girce, 22 W. R., 364. And a suit by an officer of a mosque, temple, or 
 other religious endowment, for dismissal from his office, is not a suit for 
 misfeasance, within the meaning of s. 14. Syed Amin Sahib v. Ibram, 
 Safiih. 4 Mad. H. C R, 112. 
 
 Where the plaintiffs described themselves as the Calcutta Tairo Puntee 
 Anungo Punch Brethren, and alleged that the management and control 
 of the temples, endowments, and worship of the Degumbery sect of Jains 
 was vested in them, and that they formed the committee for the man- 
 agement of all the Jain charities as well in Calcutta as in all the other 
 towns and places in India, and sued for the construction of a will and a 
 declaration of their rights thereunder as members of the Punch, and to 
 have property dedicated by the will to religious purposes ascertained and 
 secured, it was held, that such a suit did not fall under Act XX of 1863, 
 but came under the ordinary jurisdiction of the Court, which is similar in 
 its general features to that of the Lord Chancellor in England Panch 
 Cowrie Mull v. Clmmroololl, I. L. R.. 3 Calc., 563 ; S. C., 2 C. L. R., 121. 
 
 Any person interested in the endowment, and the interest need not be 
 a pecuniary one, may. after leave obtained, sue 
 
 By^hora suits may be tb / trustee / manage r. or superintendent, or the 
 members of a committee appointed under the 
 
 Act. for misfeasance. Bibee Ktineez r'atima v Mibee Saheba Jan, 
 8 W. R., 313. 
 
 The plaintiff should sue on behalf of himself and the other persons 
 interested in the due performance of the trust, 
 Ult> stating what breaches of trust have been com- 
 
 mitted, and praying that the trustee may be removed ; that some proper 
 person may be appointed in his place ; that a scheme may be framed for 
 the purpose of having the breach of trust rectified and properly carried 
 out in future ; and for an account Kalee, Churn Giri v. Golabi, 2 C. L. 
 R . 131 ; It up J\'iirain Singh v. Jmtko Rye, 3 C. L. R., 115. 
 
 It is not necessary to show that the endowment was one which was 
 formerly under the control of the Board of Revenue. Gancs Singh v. 
 Mamyopal Singh, 5 B L. R., Appx., 55. 
 
 These sections as to suits deal only with the trustees, managers, 
 superintendents, and committees of temples 
 
 Act r J oes not a PP'- v t() for acts done by them while filling the office of 
 
 trustee, manager, superintendent, or committee, 
 
 and do not apply to persons who, without any authority, by election, 
 
404 RELIGIOUS ENDOWMKXTS. 
 
 APPDX. appointment, or otherwise, have intruded themselves into the marcage- 
 
 meat of a temple and possession of its properties. Sabapathl v. Stibrn//n, 
 
 I. L R.. 2 Mad.. 58. 
 
 The jurisdiction given to Courts by this Act cannot be excluded by 
 any clause in a deed of endowment. Syud Imdad Hossein v. Mahomed, 
 AH Khan, 23 W. R., 150. 
 
 An appeal does not lie from an order passed under this Act, but the 
 party dissatisfied with the order may seek to set it aside by a regular 
 suit. Kv deer am Singli v. Sham, Kingh Poojoory, W. R.. Sp. (Mis.), 25 ; 
 Dcinis Banoo Beg mil v. TIadjee Abtwr Ruhman. 21 W. R., 368. 
 
 XVI. In any suit or proceeding instituted under this Act, it 
 
 shall be lawful for the Court before which 
 Reference to arbitra- guc ] 1 gu j t Qr p rocee( lj n g J s pending, to 
 
 order any matter in difference in such 
 
 suit to be referred for decision to one or more arbitrators. 
 Whenever any such order shall be made, the provisions of 
 chapter vi of the Code of Civil Procedure shall, in all respects, 
 apply to such order and arbitration, in the same manner as if 
 such order had been made on the application of the parties under 
 s. 312 of the said Code. 
 
 See now Act X of 1877, chap, xxxvii, and s. 506. 
 
 XVII. Nothing in the last preceding section shall prevent the 
 
 parties from applying to the Court, or the 
 
 Reference unde j 8 - Court from making the order of reference 
 312 of Civil Procedure 01 o .1.1 3 n i e 
 
 Code under the said s. 312 of the said Code of 
 
 Civil Procedure. 
 See now Act X of 1877, s. 506. 
 
 XVIII. No suit shall be entertained Tinder this Act without a 
 
 preliminary application being first made to 
 
 Preliminary applica- tbe Court for j eave to j nst i tute suc b. sn it. 
 tion for leave to insti- n >i i ' *. i_ j 
 
 tute suit application may be made upon un- 
 
 stamped paper. The Court, on the perusal 
 
 of the application, shall determine whether there are sufficient 
 primd facie grounds for the institution of a suit, and if in the 
 judgment of the Court there are such grounds, leave shall be 
 given for its institution. In calculating the 
 08 s< costs at the termination of the suit, the 
 
 stamp-duty on the preliminary application shall be estimated, and 
 shall be added to the costs of the suit. If the Court shall be of 
 opinion that the suit has been for the benefit of the trust, and that 
 no party to the suit is in fault, the Court may order costs, or 
 such portion as it may consider just, to be paid out of the estate. 
 Section 18 of Act XX of 1863 applies only to such religious establish- 
 ments as were under the control or superintendence of the Board of 
 Revenue or of local agents under Reg. XIX of 1810, and were 
 transferred to trustees or managers under s. 4 of the Act. Dclroos 
 Panoo Begum v. Nawab Syud Ashgur Ally Khan, 15 B. L. R , 167 ; S. C., 
 23 W. R.. 453. 
 
 A. a Mahomedan lady, executed a wuqfuama. purporting to dedicate 
 the whole of her property to an imambara iu her house, for the purpose 
 of perpetuating various Shiah ceremonies. By the wuqfuama she 
 
ACT xx CF 1863. 405 
 
 constituted herself joint-mutawali with one 7?, and caused the name of APPDX 
 herself and 11 as mutawalis to be substituted in the Collector's register 
 for her own name as owner. On the death of B. A acted as the sole 
 mutawali. The wuqfnama was publicly registered. But though the 
 property was styled ' wuqf ' and A the mutawali in all documents 
 connected with the estate. A continued to deal with it as absolute owner, 
 and the dedication, though made in }*:>2, was never under the control 
 of the Board of Revenue or of local agents. In a suit, which the 
 plaintiffs obtained leave to institute, under s. 18 of Act XX of 1863, 
 to remove A from the mutawaliship, on the ground of misfeasance, it 
 was held, that the wuqfnama did not constitute a public religious 
 establishment within the meaning of Act XX of 1863. and that therefore 
 the Judge below had no authority to give the plaintiffs leave to sue 
 under s 18. and that his decision was consequently ultra rirex. Delroot 
 Banna Jit-gum v. Xanab Syiid Ashgur Allti Khan. 15 B. L. II . 167 ; S C 
 23 W. R., 453. 
 
 The suits mentioned in the Act as needing the authority of the Court 
 for their institution, are solely suits charging trustees, managers, or 
 committees with misfeasance, malversation of the temple property, or 
 neglect of duty There is nothing in the Act to oust the jurisdiction of 
 the ordinary Courts over suits to establish a right to share in the manage- 
 ment. Agri Sharma Embrandri v. Viatnu Embrandri, 3 Mad. H. C. 
 R.. 198. 
 
 The Act. while it empowers persons to sue whose right to sue. inde- 
 pendently of the Act. may be doubtful, does not deprive persons, claim- 
 ing to be beneficiaries under a deed of endowment, of the right to sue 
 which they have independently of the Act : nor does it impose on them 
 the necessity of obtaining the sanction to institute the suit required by 
 s. 18 of the Act Hujce Kulub Howcin v. M. S. Mehrnm Beebce, 4 N. 
 W. P., 155; Ji'ijangariilarani Sri Hati Ditrma Dossji, 4 Mad. H. C. R., 2. 
 
 An appropriator, who sues on the ground that the trust created, so far 
 as it relates to the appointment of mutawalis. has never been acted upon, 
 and that the original rights of the appropriator remain, is at liberty to 
 bring such a suit without the leave of the Court under R. 18 of Act XY 
 of i8G3. IJitlait-fion-nix.ta v. $ynd Afzul Hox.win. 2 N. W. P., 420. 
 
 The committee of a district duly appointed under Act XX of 1863 are 
 entitled to maintain a suit in the Civil Court without having obtained 
 the leave of the Court to bring the suit, as well when the object of the 
 suit is to establish their right of control under s. 3 of the Act, as when 
 it is sought to enforce such control against the officers of the temple 
 subordinate to them. Venkatasa ATaidu v. Sadagopazamy Iyer, 4 Mad. 
 H. C. R . 404. 
 
 An order of the Civil Court under this section refusing leave to institute 
 a suit, and deciding that an endowment is governed in a particular man- 
 ner, is not apparently conclusive upon the question of title between the 
 parties. Vetthntnsa Xailii'r v. Sriniciixsa Chnriyar. 4 Mad. H. C. R., 410. 
 
 It is the duty of the Court acting under s. 18 of Act XX of 1863 to see 
 that there are some sufficient grounds for giving a person permission to 
 institute a suit under the provisions of the Act, for such permission 
 does not only contemplate that the Court may remove such trustee, 
 manager, superintendent, or member of a committe entrusted with the 
 management of the endowed property, but it also contemplates that the 
 Court shall call upon such trustee, manager, superintendent, or member 
 of a committee to file in Court an account of his trust Kishore Eon 
 JJohitnt v Kalee Churn Gircr. 21 W. R., 34. 
 
 No order for costs out of the estate can be made where a party to the 
 suit is in fault Sookram, Doss Mvktint v. Niind Kishorc Doss Mohunt, 
 22 W. R., 21. 
 
406 RELIGIOUS ENDOWMENTS. 
 
 APPDX. XIX. Before giving leave for the institution of a suit, or after 
 
 leave lias been given, before any proceeding 
 Court may require ac- ig t& j or &i any time when the su i t j s 
 
 counts of trust to be , . ' . ~ J , , 
 
 filed pending, the Court may order the trustee, 
 
 manager, or superintendent, or any mem- 
 ber of a committee, as the case may be, to file in Court the 
 accounts of the trust, or such part thereof as to the Court may 
 seem necessary. 
 
 XX. No suit or proceeding before any Civil Court, under 
 
 the preceding sections, shall in any way 
 
 No civil suit to bar affect or interfere with any proceeding in 
 proceedings for crimi- Crim i na l Court for criminal breach of 
 nal breach of trust. 
 
 trust. 
 
 See Anon., I. L. R., 1 Mad., 55. 
 
 XXI. In any case in which any land or other property has been 
 Provision for cases in granted for the support of an establishment 
 
 which the endowments partly of a religious and partly of a secular 
 
 are partly for religious character, or in which the endowment made 
 
 and partly for secular f or t j, e sup p rt of an establishment is 
 
 appropriated partly to religious and partly 
 
 to secular uses, the Board of Revenue, before transferring to any 
 trustee, manager, or superintendent, or to any committee of 
 management appointed under this Act, shall determine what 
 portion, if any, of the said land or other property shall remain under 
 the superintendence of the said Board for application to secular 
 uses, and what portion shall be transferred to the superintendence 
 of the trustee, manager, or superintendent, or of the committee, 
 and also what annual amount, if any, shall be charged on the 
 land or other property which may be so transferred to the superin- 
 tendence of the said trustee, manager, or superintendent, or of 
 the committee, and made payable to the said Board or to the 
 local agents for secular uses as aforesaid. In every such case 
 the provisions of this Act shall take effect only in respect to 
 such land and other property as may be so transferred. 
 
 XXII. Except as provided in this Act, it shall not be lawful, 
 
 Government not to after the passing of this Act, for any Gov- 
 
 hold charge henceforth ernment in India, or for any officer of any 
 
 of property for support Government in his official character, to 
 
 of any mosque, temple, undertake or resume the superintendence 
 
 of any land or other property granted for 
 
 the support of, or otherwise belonging to, any mosque, temple, 
 or other religious establishment, or to take any part in the 
 management or appropriation of any endowment made for the 
 maintenance of any such mosque, temple, or other establishment, 
 or to nominate or appoint any trustee, manager, or superinten- 
 dent thereof, or to be in any way concerned therewith. 
 
ACT xvii OF 1864. 407 
 
 XXIII. Nothing in this Act shall be held to affect the pro- APPDX. 
 
 vet t. t A/4- in visions of the Regulations mentioned in 
 
 rjttecL or .act m rts .. i_- . t. M 1. ii 
 
 pect of Regulations this Act, except in so far as they relate to 
 therein mentioned and mosques, Hindoo temples, and other reli- 
 ef buildings of anti- gious establishments; or to prevent the 
 quity, &c. Government from taking such steps as it 
 
 may deem necessary under the provisions of the said Regulations, 
 to prevent injury to and preserve buildings remarkable for their 
 antiquity, or for their historical or architectural value, or required 
 for the convenience of the public. 
 
 XXIV. The word ' India ' in this Act shall denote the terri- 
 
 tories which are or may become vested in 
 
 Her Majesty by the Statute 21 and 22 
 
 Vic., c. 106, entitled " an Act for the better government of India." 
 
 OFFICIAL TRUSTEES' ACT. 
 
 ACT XVII OF 1864. 
 
 An Act to constitute an office of Official Trustee. 
 WHEREAS it is expedient to amend the law relating to Official 
 Trustees, and to constitute an office of 
 
 Preamble. official trustee ; It is enacted as follows: 
 
 I. The following words and expressions in this Act shall have 
 
 the meanings hereby assigned to them, 
 
 Interpretation. unless there be something in the context 
 
 repugnant to such construction, that is to say : 
 
 The expression 'High Court' shall mean Her Majesty's High 
 Courts of Judicature at Fort William in 
 'High Court.' Bengal, Fort St. George, and Bombay 
 
 respectively, in the exercise of their original civil jurisdiction. 
 The expression ' Chief Justice ' shall mean the Chief Justice 
 or Acting Chief Justice for the time 
 ' Chief Justice.' bemg of any of t jj e gai(i jj; gn Courts. 
 
 The word ' person ' shall include a 
 ' Person.' corporation. 
 
 Words importing the singular number shall include the plural, 
 and words importing the plural number 
 Number. sha]1 inc i ude tue singular. 
 
 Words importing the masculine gender 
 Gender, shall include females. 
 
 II. Act XVII of 1843 (for the appointment of Official 
 Act XVII of 1843 re- Trustees in certain cases) is hereby re- 
 pealed, pealed, except as to any proceedings pend- 
 ing, or any trusts now vested in an Official Trustee under it, and 
 except in so far as that Act is made applicable to the Settlement 
 of Prince of Wales' Island, Singapore, and Malacca, by Act XIV 
 of 1852 (for extending the provisions of Acts XXIV of 1841 
 nd XVII of 1843 to the Straits' Settlement.) 
 
408 OFFICIAL TRUSTEES' ACT. 
 
 APPDX. III. Every Official Trustee appointed nnder the said Act 
 
 XVII of 1843 shall, save as regards tlie 
 
 Official trustee under . , . ?. , ., 
 
 Act XVII of 1843 to act remuneration to be received by him, hold 
 as if appointed under and execute the trusts of which he is 
 this Act. save as re- trustee, in all respects as if lie were an 
 gards remuneration. Official Trustee appointed under this Act. 
 
 IV. In each of the Presidencies of Fort William in Bengal, 
 An Official Trustee to Forfc St - George, and Bombay, there shall 
 
 be appointed in each be an Official Trustee. The said Official 
 Presidency. Trustees shall be called the Official 
 
 Trustee of Bengal, the Official Trustee of Madras, and the 
 Official Trustee of Bombay respectively. 
 
 V. Every Official Trustee appointed under this Act shall be 
 Appointment. snspen- appointed and may be suspended or re- 
 
 sion. and removal of moved from his office by the authorities 
 Official Trustee. hereinafter named, that is to say 
 
 The Official Trustee of Bengal, by the Chief Justice of Her 
 Majesty's High Court of Judicature at Fort William in Bengal. 
 
 The "Official Trustee of Madras, by the Chief Justice of Her 
 Majesty's High Court of Judicature at Fort St. George. 
 
 The Official Trustee of Bombay, by the Chief Justice of Her 
 Majesty's High Court of Judicature at Bombay. 
 
 VI. The Administrator-General or Officiating Admin istrator- 
 Administrator-Gene- General for the time being of any of the 
 
 ral may be appointed said Presidencies shall be eligible for the 
 Official Trustee. office of Official Trustee of that Presi- 
 
 dency. Every Official Trustee appointed under this Act shall 
 give security for the due execwtion of the 
 
 d t S f his Office \ S cl ; ' * ^ 
 such amount as the Chief Justice by 
 
 whom he is appointed shall direct. 
 
 VII. It shall be lawful for the Chief Justice of the High 
 Leave of absence of Court at any of the Presidencies, from 
 
 Official Trustee, and ap- time to time, to grant leave of absence to 
 pointment of a person the Official Trustee of that Presidency, but 
 to officiate for him. subject always to such and the like rules 
 
 as may be for the time being in force as to leave of absence of 
 officers attached to such High Court. Whenever any Official 
 Trustee shall obtain leave of absence, it shall be lawful for the 
 Chief Justice to appoint some person to officiate as Official 
 Trustee, and such person, while so officiating, shall be subject to 
 the same conditions and be bound by the same responsibilities as 
 the Official Trustee, and he shall be deemed to be the Official 
 Trustee for the time being under this Act, and shall be liable to 
 give security for the due execution of the duties of his office in 
 like manner as if he had been appointed Official Trustee. 
 
ACT XVII OF 1864. 409 
 
 VIII. If any person shall be about to grant, assign or settle APPDX. 
 Official Trustee may, an j P r P^ty, moveable or immoveable, of ' 
 
 \vith his consent, be ap- * nature or kind soever, npon or sub- 
 pointed trustee of a ject to any trust, whether for a charitable 
 settlement by grantor, purpose or otherwise, it shall be lawful 
 for such person, with the consent of the 
 
 Official Trustee, to appoint him, by the deed creating the trust, 
 to be the trustee of such settlement ; and upon such appoint- 
 ment the property so granted, assigned, or settled shall vest in 
 such officer and his successors in office, and shall be held by him 
 and them upon the trust declared and contained in the said'deed. 
 Provided always, that the consent of the Official Trustee shall be 
 recited in the said deed, and that the deed shall be duly executed 
 by the Official Trustee : provided also, that no trust for any 
 religious purpose shall ever be held by the Official Trustee, under 
 this or under any other section of this Act. 
 
 IX. Every Official Trustee appointed trustee of any property 
 Official Trustee ap- ^r the last preceding section shall 
 
 pointed under last pre- be entitled to receive, by way of rernu- 
 ceding section to re- neration in that behalf, such sum or sums 
 ceive only the remu- only as he shall, by the deed of settle- 
 neration specified in the mcnt be declared to be entitled to re- 
 deed. 
 
 ceive. 
 
 X. If any property is subject to a trust, whether for a chari- 
 
 table purpose or otherwise, and there shall 
 
 Under what other , .... ,, .. 
 
 circumstances Official be no trustee willing to act or capable of 
 Trustee may be appoint- acting in the trusts thereof, who is within 
 ed trustee of any pro- the local limits of the ordinary or extra- 
 P erfcv - ordinary original civil jurisdiction of the 
 
 High Court, or if property is subject to a trust, and all the 
 trustees, or the surviving or continuing trustee, and all the per- 
 sons beneficially interested in the said Trust, shall be desirous 
 that the Official Trustee shall be appointed in the room of such 
 trustees or trustee, then, and in any such case, it shall be lawful 
 for the High Court, on petition, and with the consent of the 
 Official Trustee, to appoint the Official Trustee to be the trustee 
 of such property : and upon such appointment such property 
 shall vest in the Official Trustee and his successors in office, and 
 shall be held by him and them upon the same trusts as the same 
 were held previous to such appointment. 
 
 XL The Official Trustee shall be entitled by way of remu- 
 
 Rate of commission neration, in respect of all trust-property 
 
 tinder last preceding transferred to him under the last preced- 
 
 section. ing section, to a commission, the rate of 
 
 which shall be as follows, that is to say, 
 
 On all capital monies received by him, a commission of one- 
 half per cent, on receiving the same. 
 
 52 
 
410 OFFICIAL TRUSTEES' ACT. 
 
 APPDX. On all capital monies invested by him, a commission of one- 
 
 half per cent, on investing the same. 
 
 On all sums received by him by way of interest or dividends 
 in respect of monies invested, a commission of three-quarters 
 per cent. 
 
 On all rents collected by him, a commission of two and-a-half 
 per cent. 
 
 XII. The Official Trustee shall defray all the expenses of the 
 
 establishment necessary for his office, in- 
 
 ' cl din S the P ro io11 of office accommoda- 
 tion, together with all other charges to 
 
 which the said office shall be subject, except those for which 
 express provision is made by this Act, and except those costs of 
 litigation and the like which a trustee would, under ordinary 
 circumstances, be entitled to pay for out of the trust-monies in 
 his hand. The commission to which the Official Trustee shall be 
 entitled is intended to cover all the expenses and risk and 
 responsibility of management, collection, and distribution. 
 
 XIII. It shall in no case be lawful to appoint the Official 
 In all cases Official Trustee to be a trustee along with any 
 
 Trustee to be sole trus- other person: but the Official Trustee 
 tee. shall always be sole trustee. 
 
 XIV. The Official Trustee shall cause all capital monies 
 In what securi ties Offi- received by him to be invested in Govern- 
 
 cial Trustee to invest ment securities, or otherwise as the Court 
 trust-money. shall direct : and if in any case the trust- 
 
 funds or any part of them shall, at the time of their vesting in 
 the Official Trustee, be invested otherwise than as provided in the 
 deed or will creating the trust, or than as ordered by the Court, 
 it shall be the duty of the Official Trustee, as soon as he reason- 
 ably can, to realize the funds so improperly invested, and to invest 
 the same in Government securities, or otherwise as the Court 
 shall direct. 
 
 XV. The High Court may make any such orders as shall 
 High Court may seem to Jt necessary respecting any trust- 
 make orders respecting property vested in the Official Trustee, or 
 trust-property vested the interest or produce thereof. All such 
 in Official Trustee. orders shall be made on petition, unless 
 the Court shall direct a suit to be instituted. 
 
 XVI. Nothing in this Act shall prevent the re-transfer of 
 Re-transfer of trust- anv trust-property, which may have be- 
 
 property to original, or come vested in the Official Trustee, to the 
 transfer to other, trus- original or any subsequently appointed 
 trustee, or to such person as the Court 
 
 shall direct, unless otherwise provided by the deed or will creat- 
 ing the trust. 
 
ACT XVII OF 1864. 411 
 
 XVII. All orders which shall be made appointing any Offi- APPDX. 
 
 cial Trustee to act as trustee in virtue of 
 
 his ffice > sha11 a PP int him b ? his name 
 of office, and shall authorize the Official 
 
 Trustee for the time being of the same Presidency to act as 
 Official Trustee of the property to which such order shall relate ; 
 On death &c of an( ^ a ^ P r P er ty and interest which at the 
 Official Trustee, 'pro- time of the death, resignation, or removal 
 perty to vest in his from office of any Official Trustee shall 
 successor. tj e ves t e d in him by virtue of such order, 
 
 shall, upon such death, resignation, or removal, cease to be vested 
 in him, and shall vest in his successor in office immediately 
 upon his appointment thereto, and all books, papers, and docu- 
 ments kept by such Official Trustee, by virtue of his office, shall 
 be transferred to and vested in his successor in office. 
 
 XVIII. All actions, suits, or other proceedings, which shall 
 Official Trustee to be commenced by or against any Official 
 
 sue or be sued by his Trustee in his official character, may be 
 name of office. Suit not brought by or against him by his name 
 to abate by death, &c. o f O fg ce . an( j no su j t> ac tJ n, or other 
 
 proceeding already commenced, or which shall be commenced, by 
 or against any person as Official Trustee either alone or jointly 
 with any other person, shall abate by reason of the death, resig- 
 nation, or removal from office of any such Official Trustee ; but 
 the same may, by order of the Court, and upon such terms as to 
 the serivce of notices or otherwise as the Court may direct, be 
 continued against his successor immediately upon his appoint- 
 ment in the same manner as if no such death, resignation, or 
 removal had occurred. Provided, that nothing herein contained 
 . shall render any such successor personally 
 
 rovls0 ' liable for any costs incurred prior to the 
 
 order for continuing the action or suit against him, or shall release 
 an Official Trustee who has resigned or been removed from his 
 office, or the heirs, executors, administrators, or representatives of 
 a deceased Official Trustee from being liable for any such costs. 
 
 XIX. Every Official Trustee appointed under this Act shall 
 
 enter into books, to be kept by him for 
 
 Official Trustee to t h at purp ose, separate and distinct ac- 
 oTeaVh^utT^ counts" of each trust of which he is the 
 open to the inspection trustee, and of all such sums of money 
 of the Chief Justice and securities for money, goods, and things, 
 and of any person as s j ia n come to his hands, or to the 
 h-O- ' -7 P-so,, employed by kin, 
 or in trust for him, under this Act, and 
 likewise of all payments made by him on account of such trust, 
 and of all debts due by or to the same, specifying the dates of 
 such receipts and payments respectively, which said books shall 
 
412 OFFICIAL TRl.'STKES* ACT. 
 
 APPDX. be kept in the Official Trustee's office, and shall be at all times 
 
 opeu for the inspection of the Chief Justice and of any person 
 
 authorized by him to demand inspection thereof. 
 
 XX. The Chief Justice shall have power, from time to time, 
 
 Chief Justice may to raake and alter an 7 general rules and 
 make and alter rules orders consistently with the provisions of 
 and orders for custody this Act, for the safe custody of the trust- 
 of trust-fnnds, &c. funds and securities which shall come to 
 
 the hands or possession of the Official Trustee, and for the 
 remittance to Europe, or elsewhere, of all sums of money which 
 shall be payable or belong to persons resident in Europe or else- 
 where, or in other cases where such remittances shall be required, 
 and generally for the guidance and government of the Official 
 Trustee in the discharge of his duties ; and may, by such rules 
 and orders, amongst other things, direct what books, accounts, 
 and statements in addition to those mentioned in this Act, shall 
 be kept by the Official Trustee, and in what form the same shall 
 be kept, and what entries the same shall contain, and where the 
 same shall be kept, and where and how the funds and securities 
 and other the property belonging to the trust, of which the Official 
 Trustee is the trustee, shall be kept or invested or deposited, and 
 how any remittances thereof shall be made. 
 
 XXI. Such orders shall be published in the Official Gazette, 
 
 and it shall be the duty of the several 
 
 Publication of Official Trustees to obey and fulfil the 
 
 orders, &c. , , , i 11 u r 11 
 
 same, and the same shall be a fall autho- 
 rity and indemnity for all persons acting in pursuance thereof. 
 
 XXII. The Official Trustee of each of the said Presidencies 
 Official Trustee to shall > once in ever - v year, that is to say, 
 
 furnish annual sche- on the first day of March, or on such 
 dules. which shall be other day as the Chief Justice shall 
 filed in the High Court direct, deliver to the Chief Justice a true 
 schedule showing the gross amoTint of all sums of money 
 received or paid by him on account of each trust of which he is 
 the trustee, and the balances during the year ending on the thirty- 
 first day of December next before the day of delivering such 
 schedule, and a true list of all securities accrued on account of 
 each of the said trusts during the same period ; and also a true 
 schedule of all trusts which shall have come to an end or of 
 which the Official Trustee shall have ceased to be the trustee, 
 and the property subject to which shall have seen paid or made 
 over to the persons entitled to the same or to new trustees during 
 the same period, specifying the nature and amount or value of 
 such property and the persons to whom paid or made over. The 
 
 Chief Justice shall cause the said sche- 
 Inspection of sche- du]e to be filed as record in the High 
 
 dules so filed. , , ., , n , , , ,. , f 
 
 Court ; but it shall not be lawful for any 
 
ACT xvii OF 1864. 413 
 
 person to inspect the same or to make copies thereof or of any APPDX. 
 part thereof, except on au order granted by the Chief Justice 
 permitting him so to do. 
 
 XXIII. The Chief Justice shall, from time to time, appoint 
 
 an auditor or auditors to examine the 
 
 SP ' accoill ' t8 of the Offi<^ Trustee at the 
 time of the delivery of the said schedule, 
 and also at any other time when the Chief Justice shall think 
 fit. 
 
 XXIV. The auditor or auditors shall examine the schedules 
 Auditors to examine and accounts, and report to the Chief 
 
 schedules and accounts Justice whether they contain a full and 
 of Official Trustee, and true account of everything which ou^ht 
 
 Ju S tic e e P rt t0 ^^ to be inserted therein > a d whether the 
 books which by this Act are, or which 
 
 by any such general rules and orders as aforesaid shall be, direct- 
 ed to be kept by the Official Trustee, have been duly and regularly 
 kept ; and whether the trust-funds and securities have been duly 
 kept aud invested and deposited in the manner prescribed by this 
 Act or which shall be prescribed by any such rules and orders 
 to be made as aforesaid. 
 
 XXV. Every auditor shall have power to summon as well 
 Auditors to ha vepow- the Official Trustee as any other person or 
 
 er to summon witnesses persons whose presence he may think 
 andtocallforbooks,&c. necessary, to attend him from time to 
 time ; and to examine the Official Trustee or other party or parties, 
 if he shall think fit, on oath or solemn affirmation, to be by him 
 administered ; and to call for all books, papers, vouchers, and 
 documents, which shall appear to him to be necessary for the 
 purposes of the said reference ; and if the Official Trustee or 
 other person or persons when summoned shall refuse, or, without 
 reasonable cause, neglect to attend or to produce any book, 
 paper, voucher, or document required, or shall attend and refuse 
 to be sworn or make a solemn affirmation, when by law an 
 affirmation may be substituted for an oath, or shall refuse to be 
 examined, the auditor or auditors shall certify such neglect or 
 refusal in writing to the High Court ; and every person so 
 Penalty for refusal refusing or neglecting shall thereupon 
 or neglect to attend. &c., be punishable in like manner as if such 
 to produce books, &c. refusal or neglect had been in contempt 
 of the said High Court. 
 
 XXVI. The costs and expenses of preparing the said sche- 
 Costs of preparing dules and accounts, and of every such 
 
 schedules, &c., how to reference and examination as aforesaid, 
 be paid. shall be defrayed by all the trust-estates 
 
 to which such schedules or accounts shall relate, which costs and 
 expenses, and the portion thereof to be contributed by each of 
 
414 OFFICIAL TRUSTEES' ACT. 
 
 APPDX. the said trust-estates, shall be ascertained and settled by the 
 - auditor or auditors, subject to the approval of the Chief Justice, 
 and shall be paid out of the said estates accordingly by the 
 Official Trustee. 
 
 XXVII. If upon any such, reference and examination the 
 auditor or auditors shall see reason to 
 believe tbafc the said schedules do not 
 
 b 
 
 contain a true and correct account of the 
 
 matters therein contained, or which ought to be therein contained, 
 or that the trust-funds and securities have not been duly kept 
 and invested or deposited in the manner directed by this Act, or 
 which shall be directed by any such rules and orders as aforesaid, 
 or that the Official Trustee has failed to comply with the provi- 
 sions and directions of this Act, or of any such rules and orders, 
 he or they shall report accordingly to the Chief Justice. 
 
 XXVIII. The Chief Justice may refer every such report as 
 
 last aforesaid to the consideration of the 
 Advocate-General for the Presidency, who 
 shall thereupon, if he shall think fit, pro- 
 ceed summarily against the defaulter or his personal representa- 
 tive in the High Court by petition for an account, or to compel 
 obedience to this Act or to such rules and orders as aforesaid, 
 or otherwise as he may think fit, in respect of all or any of the 
 trust-estates then or formerly under the charge of such defaulter ; 
 and the Court shall have power, upon any such petition, to com- 
 pel the attendance in Court of the defendant or defendants and 
 any witnesses who may be thought necessary, and to examine 
 them orally or otherwise as the said Court shall think fit, and 
 to make and enforce such order or orders as the Court shall 
 think just. 
 
 XXIX. The costs, including those of the Advocate-General, 
 Costs upon such, pro- an( l f the reference to him, if the same 
 
 ceedings, &c.,howto be shall be directed by the Court to be paid, 
 defrayed. shall De defrayed either by the defendant 
 
 or defendants, or out of the trust-estates ratably as the said 
 Court shall direct ; and whenever any costs shall be recovered 
 from the defendant or defendants, the same shall be repaid to the 
 estates by which the same shall have been in the first instance 
 contributed, and the Court shall have power to order the Official 
 Trustee or other person or persons, defendants, to receive his or 
 her costs out of the said estates, if it shall think fit. 
 
 Orders of the High XXX - An 7 orders which sba11 be 
 
 Court to have same made by any of the said High Courts 
 
 effect, and to be exe- shall have the same effect and be 
 
 cuted in the same man- executed in the same manner as 
 ner as decrees. 
 
ACT xxvn OF 1866. 415 
 
 XXXI. Any order under this Act may be made on the APPDX. 
 Who may apply for a PP Iicatio . n * 7 person beneficially in- 
 
 order under this Act. terested in any trust-property, or of any 
 trustee thereof, whether under disability 
 or not. 
 
 XXXII. If any infant or lunatic shall be entitled to any 
 Executor or Adminis- gift or legacy or residue or share thereof, 
 
 trator may. by leave of it shall be lawful for the executor or 
 aSSffilgoJ: ^"7-trator b y whom such legacy, 
 share, &c.. to which an residue, or share may be payable or trans- 
 infant or lunatic is ferable, or the party by whom such gift 
 entitled. may be made, or any trustee of such gift, 
 
 legacy, residue, or share, to pay or transfer the same to the Official 
 Trustee appointed under this Act; provided that the leave of 
 the High Court to make such payment or transfer shall be first 
 obtained by motion made on petition. Any money or property 
 paid or transferred to the Official Trustee or vested in him under 
 this section shall be subject to the same provisions as are con- 
 tained in this Act as to other property vested in such Official 
 Trustee under the provisions thereof. 
 
 THE INDIAN TRUSTEE ACT, 1866. 
 
 ACT No. XXVII OF 1866. 
 
 An Act to consolidate and amend the law relating to the conveyance 
 and transfer of property in British India vested in mortgagees 
 and trustees in cases to which English law is applicable. 
 WHEREAS it is expedient to consolidate and amend the laws 
 relating to the conveyance and transfer of 
 moveable and immoveable property in Bri- 
 tish India vested in mortgagees and trustees, in cases to which 
 English law is applicable ; It is hereby enacted as follows (a) : 
 (a) As to the meaning of these words, see ante, p. 15. The Court has 
 no jurisdiction under this Act to decide on a disputed question of title. 
 In re Draper's Settlement, 9 W. R. (Eng.), 805. 
 
 The Act applies only to the Lower Provinces, the North- Western Pro- 
 vinces, the Presidencies of Madras and Bombay, and the Punjab. It is 
 mainly founded on the English Statutes, 13 and 14 Viet., c. 60 (The 
 Trustee Act), and 15 and 16 Viet., c. 55 (The Trustee Extension Act). 
 
 I. [Jtepealed by Act XIV of 1870.] 
 
 II. In this Act, unless there be some- 
 thing repugnant in the subject or context 
 ' Immoveable property ' shall extend to and include mes- 
 suages, tenements, and hereditaments, 
 ' Immoveable pro- corporeal and incorporeal,of every tenure 
 perty.' or description, whatever may be the estate 
 
 or interest therein : 
 
416 INDIAN TRUSTEE ACT. 
 
 APPDX. 'Stock' shall mean any fund, annuity, or security transferable 
 
 in books kept by any company or society 
 established or to be established, or trans- 
 ferable by deed alone, or by deed accompanied by other formali- 
 ties, and any share (a) or interest therein. It shall also include 
 shares in ships registered under the Merchant Shipping Act, 1854, 
 or at any port in British India (b) : 
 
 'Hold' and 'holding' shall be applicable to any vested 
 
 estate, whether for life or of a greater or 
 'Hold and 'holding. , , . ,. . . ,. , -, 
 
 less description, in possession, futurity, or 
 
 expectancy in any imnioveable property : 
 
 ' Contingent right,' as applied to imnioveable property, shall 
 
 , mean a contingent or executory interest, 
 
 nght> or possibility coupled with an interest, 
 
 whether the object of the gift or limitation of such interest or 
 
 possibility be or be not ascertained ; also a right of entry, 
 
 whether immediate or future, and whether vested or contingent : 
 
 'Convey' and 'conveyance' applied to' any person shall 
 
 man the execution by such person of 
 
 Convey and con- everv necessary or suitable assurance for 
 
 veyance. J . ,. 
 
 conveying or disposing to another immove- 
 
 able property which such person holds, or in which he is entitled 
 to a contingent right, either for the whole estate of the person 
 conveying or disposing, or for any less estate, together with the 
 performance of all formalities required by law to the validity of 
 such conveyance, including the acts to be performed by married 
 women and tenants-in-tail in accordance with the provisions of 
 Act XXXI of 1854 (to abolish real actions and also fines and 
 recoveries, and to simplify the modes of conveying land in cases to 
 which English law is applicable) : 
 
 'Transfer' shall mean the execution and performance of every 
 , deed and act by which a person entitled to 
 
 stock, or Government securities, can trans- 
 fer such stock or Government securities from himself to another : 
 ' High Court ' shall mean every Court now or hereafter to be 
 , established under the Statute 24 and 25 
 
 Viet., cap. 104, and also the Chief Court 
 
 of the Punjab, or such one or more Judges of the said Courts res- 
 pectively as shall be appointed by the Chief Justice or the senior 
 Judge (c), as the case may be, to entertain applications and make 
 orders under this Act : 
 
 'Trust' shall not mean the duties incident to an estate con- 
 veyed by way of mortgage ; but with this 
 
 ' Trust ;' ' trustee.' exception, the words 'trust' and 'trus- 
 tee' shall extend to and include implied 
 
 and constructive trusts, and shall extend to and include cases 
 where the trustee has some beneficial estate or interest in the 
 
ACT XXVII OF 1866. 417 
 
 subject of the trust, and shall extend to and include the duties APPDX. 
 
 incident to the office of executor or administrator of a deceased 
 
 person ( d) : 
 
 ' Lunatic ' shall mean any person who shall have been found by 
 
 due course of law to be of unsound mind 
 Lunatic. i -i /. , . ~ . 
 
 and incapable of managing his affairs : 
 
 ' Person of unsound mind ' shall mean any person not a 
 
 minor who, not having been found to be 
 
 mi nPe^ 011 f unsound a lunatic? shall be i ncap able from infirmity 
 
 of mind (e) to manage his own affairs : 
 In the case of a will made, or an intestacy occurring before 
 
 'Heir 'and 'devisee' the first day f Januai 7' 1866 ( the ' 
 day on which the Indian Succession Act 
 
 came into force) ' heir ' shall mean the person claiming an interest 
 in the iminoveable property of a deceased person under the laws 
 concerning descent applicable to such property; and 'devisee' 
 shall, in addition to its ordinary signification, mean the heir of a 
 devisee and the devisee of an heir, and generally any person 
 claiming an interest in the immoveable property of a deceased 
 person, not as heir of such deceased person, but by a title depen- 
 dent solely upon the operation of the laws concerning devise 
 and descent. 
 
 In the case of a will made, or an intestacy occurring on or after 
 the first day of January, 1866, ' heir ' shall mean any person 
 claiming an interest in the immoveable property of a deceased 
 person under the rules for the distribution of an intestate's 
 estate ; and ' devisee ' shall mean any person taking immove- 
 able property under a bequest, and any person, other than an 
 executor or administrator, claiming an interest in immoveable 
 property, not as entitled thereto under the said rules, but by a 
 title dependent solely upon the operation of the laws concerning 
 intestate and testamentary succession : 
 
 * Mortgage ' shall be applicable to every estate or interest in 
 immoveable or moveable property which 
 would in the High Court be deemed mere- 
 ly a security for money : 
 
 ' Person ' shall include any company or 
 ' Person.' association, or body of persons, whether 
 
 incorporated or not (/). 
 
 Words importing the singular number only shall extend to 
 several persons or things ; words import- 
 Number and gender. ^ th<j plural nmnber slia u app l y to one 
 
 person or thing; words importing the masculine gender shall 
 extend to a female (g). 
 
 The preceding definitions correspond substantially with those in the 
 Trustee Act, 1850, 13 and 14 Viet., c. 60. 
 
 53 
 
418 INDIAN TRUSTEE ACT. 
 
 APPDX (a) See Re Anqelo, 5 De G. and S., 278. 
 (i) 18 and 19 Viet., c. 91, s. 10. 
 
 (c) See Act IV of 1866. s. 3. 
 
 (d) A vendor, after a contract, has been held to be a trustee of shares in a 
 joint-stock bank for the purchaser. But in cases of immoveable property, 
 if not universally, at least where the alleged trustee can possibly dispute 
 the trust, the constructive trust must first have been declared by the 
 decree of the Court, and the infant heir of the vendor, who died intestate 
 after having contracted to sell real estate, is not a constructive trustee for 
 the purchaser unless so declared by decree. Lewin, 7th Edn., 867. See 
 Re Lowry's Will, L. R., 15 Eq., 78. A vendor who refused to convey after 
 tender of a deed settled by the Judge, or to receive the purchase-money, 
 was declared a trustee ; and on the purchaser paying his purchase-money 
 into Court, his solicitor was to execute the conveyance for the vendor. 
 Warrender v. Foster, 1 Set. on Decrees, 4th Ed., 538. 
 
 The Court has jurisdiction to recognize a constructive trusteeship of 
 stock within the meaning of that term as used in the Act. Re Davis 1 s 
 Trust, L. R., 12 Eq., 214. 
 
 The definition of ' trustee ' includes the case of stock which has been 
 transferred into the name of an infant, who is the sole beneficial owner, 
 subject to a direction in regard to maintenance or otherwise, vested in 
 some one else. Gardner v. Conies, L. R., 3 Ch. D., 304. 
 
 An heir who elects to hold on the trusts of an inoperative will is a 
 trustee. Dewar v. Maitland, L. R., 2 Eq., 834. After a bankruptcy 
 and the appointment of assignees, one of them went abroad ; it was held, 
 that he was a trustee, and the estate was vested in the remaining 
 assignees. In re Joyce s Estate, L. R., 2 Eq., 576. 
 
 (0) See Ra Wakeford, 1 J. and Lat., 2 ; lie Jones, 6 Jur., 545. 
 
 (/) See Lackersteen v. Rostan, I. L. R., 7 Calc., 32. 
 
 (g} See the General Clauses Act, I of 1868. 
 
 III. The powers and authorities given by this Act to the 
 The High Courts to High Courts shall and may be exercised 
 
 have jurisdiction in only in cases to which English law is appli- 
 what cases. cable (a), and may be exercised with respect 
 
 to property within the local limits of the extraordinary original 
 civil jurisdiction of the said Courts respectively. 
 
 (a) Up to a very recent period, the words " cases to which English 
 law is applicable" have been considered to apply only to cases in which 
 the parties have been European British subjects. In Re J^aliandas Na- 
 randas, I. L. R., 5 Bomb., 154, however, it was held, that the High Courts 
 may exercise the summary powers conferred upon them by this section 
 in the case of Hindu trusts ; ante, p. 15. 
 
 IV. When any lunatic or person of unsound mind (a) shall 
 High Court may con- hold an J immoveable property upon any 
 
 vey estates of lunatic trust or by way of mortgage, it shall be 
 
 trustees and mortga- lawful for the High Court to make an 
 
 order that such property be vested (I) in 
 
 such person or persons in such manner and for such estate as the 
 said Court shall direct ; and the order shall have the same effect 
 
ACT xxvii OF I860. 419 
 
 as if the trustee or mortgagee had been sane, and had duly APPDX. 
 
 executed a conveyance of the property in the same manner for 
 
 the same estate. 
 
 Trustee Act, 1850, s 3. 
 
 (*) Where the unsoundness of mind is contested, the case is not 
 within the Act. lie Walker, Cr. and Ph., 147 ; Re Campbell, 18 L. T , 202. 
 
 (ft) The vesting order being a conveyance, should be so worded as to 
 make it clear by the description what property passes. Re Orffs Truxt, 
 3 W. R. (Eng.), 863. Where the circumstances require a severance of the 
 property, the Court will make two vesting orders instead of one general 
 Brader v. Kerby, W. N., 1872, p. 174 ; see Lewin, 7th Ed., 869. 
 
 V. When any lunatic or person of unsound mind shall be 
 
 High Court may con- ? ntitled *? *** contin gent right in any 
 
 vey contingent rights. immoveable property upon any trust or by 
 
 way of mortgage, it shall be lawful for 
 
 the High Court to make an order wholly releasing such property 
 from such contingent right, or . disposing of the same to such 
 person or persons as the said High Court shall direct, and the 
 order shall have the same effect as if the trustee or mortgagee 
 had been sane, and had duly executed a deed so releasing or dis- 
 posing of the contingent right. 
 
 The Trustee Act, 1850, s. 4. 
 
 VI. When any lunatic or person of unsound mind shall be 
 High Court may trans- solely entitled to any stock or Government 
 
 fer stock or Govern- securities, or to any thing in action upon 
 ment securities of IUD a- any trust or by way of mortgage, it shall 
 tic trustees and mort- be lawful for the High Court to make an 
 
 order vesting in any person or persons the 
 
 right to transfer such stock or Government securities, or to receive 
 the dividends, interest, or income thereof, or to sue for and recover 
 such thing in action, or any interest in respect thereof (a) : and 
 when any person or persons shall be entitled jointly with any luna- 
 tic or person of unsound mind to any stock or Government securi- 
 ties, or thing in action upon any trust or by way of mortgage, it 
 shall be lawful for the said Court to make an order vesting the 
 right to transfer such stock or Government securities, or to receive 
 the dividends, interest, or income thereof, or to sue for and recover 
 such thing in action or any interest in respect thereof, either in 
 such person or persons so jointly entitled as aforesaid (5), or in 
 such last-mentioned person or persons, together with any other 
 person or persons the said High Court may appoint (c). 
 
 Trustee Act, 1850, s. 5. 
 
 (a) Where a person of unsound mind was entitled to a sum of stock 
 as trustee, and also entitled to another sum of the same stock benefi- 
 cially, as the bank would not apportion the past dividend between the 
 trust-estate and the beneficial estate, the Court, in appointing new 
 trustees, vested the right to receive the whole dividend in the new 
 trustees upon their undertaking that they would invest in the name of 
 
420 INDIAN TRUSTEE ACT. 
 
 APPDX. the old trustee so much as belonged to him beneficially. Re Stewart, 
 
 2 DeG. F. and J., 1; Uodges v. Wheeler, 1 Set. on Dec., 4th Ed., 522; 
 
 Lewin, 7th Ed., 870. 
 
 (5) When one of the three executors of a surviving trustee of shares 
 was of unsound mind, and the other two. when applied to by the persona 
 absolutely entitled to the shares, declined to do anything, it was held, 
 that an order could be made vesting the right to transfer the shares in 
 the persons beneficially interested. In re White. L. R.. 5 Chan.. 698. 
 
 (c) The lunatic husband of a married woman, a trustee, is within 
 the Act. Re Wood, 3 D. F. J., 125 ; Ex parte Bradshare, 2 D. M. G., 900. 
 
 VII. When any stock or Government securities shall be 
 Power to transfer standing in the name of any deceased 
 
 stock or Government person whose executor or administrator is 
 securities of deceased a lunatic or person of unsound mind, or 
 person. when any thing in action shall be vested 
 
 in any lunatic or person of unsound mind as the executor or 
 administrator of a deceased person, it shall be lawful for the High 
 Court to make an order vesting the right to transfer such stock 
 or Government securities, or to receive the dividends, interest, or 
 income thereof, or to sue for and recover such thing in action, 
 or any interest in respect thereof, in any person or persons the 
 said Court may appoint. 
 
 Trustee Act, 1850, B. 6. 
 
 VIII. When any minor shall hold any immoveable property 
 
 High Court may con- u P on an 7 trust or b 7 wa 7 of mortgage, it 
 vey estates of minor shall be lawful for the High Court to make 
 trustees and mortga- an order vesting such property in such 
 f= ees - person or persons in such manner and for 
 
 such estate as the said Court shall direct (a) ; and the order 
 shall have the same effect as if the minor trustee or mortgagee 
 had attained his majority, and had duly executed a conveyance 
 of the property in the same manner for the same estate (b). 
 
 Trustee Act, 1850, s. 7. 
 
 (a) As to barring dower, see Lewin. 7th Ed., 871. 
 
 (*) See Powell v. Mathcws, 1 Jur., N. 8., 973. 
 
 An order has been made to vest the legal estate in the devisees of a 
 mortgagor subject to a charge created by his will. Re Ellorthorpe, 18 
 Jur., 669. 
 
 IX. When any minor shall be entitled to any contingent right 
 Contingent rights of in an j immoveable property upon any 
 
 minor trustees and trust or by way of mortgage, it shall be 
 mortgagees. lawful for the *High Court to make an 
 
 order wholly releasing such property from such contingent right, 
 or disposing of the same to such person or persons as the said 
 Court shall direct, and the order shall have the same effect as if 
 the minor had attained his majority and had duly executed a 
 deed so releasing or disposing of the contingent right. 
 
 Trustee Act, 1850, s. 8. 
 
ACT xxvn OF 18G6. 421 
 
 'X. When any person solely (a) holding any immoveable pro- APPDX. 
 
 High Court may con- P ert y U P OU an J trust (6) shall be out of 
 
 vey the estate of a trus- the jurisdiction of the High Court (c), or 
 
 tee out of the jurisdic- cannot be found (d), it shall be lawful for 
 
 the said Court () to make an order vest- 
 
 ing such property in such person or persons in such manner and 
 for such estate as the said Court shall direct, and the order shall 
 have the same effect as if the trustee had duly executed a convey- 
 ance of the property in the same manner and for the same estate. 
 
 Trustee Act, 1850, s. 9. 
 
 (a) As to coparceners, see Me Murray v. Splcer, L. R , 5 Eq., 527. 
 
 (6) An heir who takes the trust-estate by the disclaimer of the trus- 
 tees ( Wilkt v. Groom. 6 D. M. G.. 205). or by the death of the trustee 
 in the testator's lifetime (Re GUI, 1 Set. on Dec.. 4th Ed., 620). is a 
 trustee within the section ; and an heir of a mortgagee who had taken 
 possession has been held to be a trustee for the mortgagee's executors 
 Re Skitter's Mart flu ye. 4 W. R. (Eng. ). 791 . Where a person had contracted 
 to sell an estate, which in equity had converted it into personalty, but 
 before he executed the conveyance died intestate, it was held that the 
 heir was a trustee for the personal representative. See Lewin, 7th Ed., 
 871. citing Re BadcocTi, 2 W. R. (Eng.), 386. 
 
 (c) Temporary absence does not bring a case within the Act. Hu' chin- 
 son v. Stephens. 5 Sim., 499. A trustee may be treated as out of the 
 jurisdiction although he appears by counsel Stilivcll v. Ashley, 1 Set. on 
 Dec., 4th Ed., 520. 
 
 (d) See Lechmere v. Clamp, 30 Beav., 218 ; 31 Beav., 578. 
 
 One of three joint mortgagees, who were trustees, went abroad, and 
 in his absence the mortgage was paid off ; and by a deed to which he, 
 with the other trustees, was named a party, but which he never executed, 
 the debt and security, except the legal estate outstanding in him, were 
 vested in the transferree of the mortgagee. Afterwards a new trustee 
 was appointed in his place. It was held, that the neglect or refusal of 
 the old trustee to convey the outstanding legal estate brought the case 
 within the Act, and that the Court had jurisdiction to vest the outstand- 
 ing legal estate in the transferree. In re Walker's Mortgage Trusts, L. R., 
 3 Ch. D.. 209. 
 
 (<?.) This section applies when the trustee out of the jurisdiction is of 
 unsound mind. Re Gardner's Trusts, L. R., 10 Ch. D.. 29. 
 
 XI. When any person or persons shall hold any immoveable 
 property in trust jointly with a person 
 
 mf onST* <SS ot M* *>* jurisdiction of the High 
 where persons hold Court, or who cannot be found, it shall 
 immoveable property be lawful for the said Court to make an 
 jointly with persons order vesting the property in the person 
 or persons so jointly holding, or in such 
 
 last-mentioned person or persons together with any other person or 
 persons, in such manner and for such estate as the said Court 
 shall direct ; and the order shall have the same effect as if the 
 trustee (a) out of the jurisdiction, or who cannot be found, had 
 duly executed a conveyance of the property in the same manner 
 for the same estate (b). 
 
 Trustee Act. 1850. s. 10. 
 
 (a) A mortgage of real estate was made by two persons, one of whom 
 
422 INDIAN TRUSTEE ACT. 
 
 APPDX. went abroad. Upon a sale of the mortgaged property by the mortgagor, 
 so much of the purchase-money as was payable to the mortgagee was 
 invested in their joint names. It was held, that the Court had no 
 jurisdiction upon a petition by the mortgagor and the mortgagee within 
 the jurisdiction to make an order vesting in the purchaser the estate of 
 the absent mortgagee. In re Osborn's Mortgage Trusts, L. R., 12 Eq.. 392. 
 
 (&) The Court has power to vest the lands in the joint owners within 
 the jurisdiction, and another as joint tenants. Smith v. Smith, 3 Drew., 
 72 ; Re Marquis of Enters Will. Johns., 15. 
 
 If one of the co-heirs of a mortgagee be out of the jurisdiction, he is 
 a trustee within this section for the persons entitled to the mortgage- 
 money, and the entirety on their petition may be vested in the co-heir 
 within the jurisdiction. Re Templers's Trusts, 4 N. R., 494 ; lie Hughes' 's 
 Settlement, 2 H. and M., 695. See Lewin, 7th Ed., 873. 
 
 XII. When any person solely entitled to a contingent right 
 
 in any immoveable property upon any 
 trust shall be out of the jurisdiction of 
 the High Court, or cannot be found, it 
 
 shall be lawful for the said Court to make an order wholly 
 releasing such property from such contingent right, or disposing 
 of the same to such person or persons as the Court shall direct, 
 and the order shall have the same effect as if the trustee had 
 duly executed a conveyance so releasing or disposing of the 
 contingent right. 
 Trustee Act, 1850, s. 11. 
 
 XIII. When any person jointly entitled with any other 
 
 person or persons to a contingent right 
 
 High Court may j n anv immoveable property upon any 
 
 make order in caa t h u be fc Q{ the j uris diction of 
 
 where persons are joint- J 
 
 ly entitled with others the High Court, or cannot be found, it 
 
 out of the jurisdiction shall be lawful for the said Court to 
 
 of the Court to a con- make an order disposing of the contin- 
 
 tingent right in im- . hfc f the Qn Qut f ^ 
 
 moveable property. * . , . f. A v, f j 
 
 jurisdiction, or who cannot be found, to 
 
 the person or persons so jointly entitled as aforesaid, or to such 
 last-mentioned person or persons, together with any other person 
 or persons ; and the order shall have the same effect as if the 
 trustee out of the jurisdiction, or who cannot be found, had duly 
 executed a conveyance so releasing or disposing of the contingent 
 right. 
 Trustee Act, 1850, s. 12. 
 
 XIV. Where there shall have been two or more persons 
 
 jointly holding any immoveable property 
 
 When it is uncertain upon any trust, and it shall be uncertain 
 which of several w hi cu o f suc b. trustees was the survivor, 
 trustees was the ^ ghall be j awful for tllg Hjgh Court ^ 
 
 make an order vesting such property in 
 such person or persons in such manner and for such estate as the 
 
ACT xxvn OF 1866. 423 
 
 said Court shall direct ; and the order shall hare the same effect APPDX. 
 
 as if the survivor of such trustees had duly executed a convey- 
 
 ance of the property in the same manner for the same estate. 
 
 Trustee Act, 1850, s. 13. 
 
 XV. Where any one or more person or persons shall have 
 
 held any immoveable property upon any 
 
 When it is uncertain trusfc and it shall not be known, as to 
 whether the last ,1 i , i , ,j 
 
 trustee be livin- or ttie trustee ^ ast known to have held such 
 dead. property, whether he be living or dead, 
 
 it shall be lawful for the High Court to 
 
 make an order vesting such property in such person or persons in 
 such manner and for such estate as the said Court shall direct ; 
 and the order shall have the same effect as if the last trustee had 
 duly executed a conveyance of the property in the same manner 
 for the same estate. 
 
 Trustee Act, 1850, s. 14. 
 
 XVI. When any person holding any immoveable property 
 
 upon any trust shall have died intestate 
 6S as to such Property without an heir, or 
 
 shall have died, and it shall not be known 
 who is his heir or devisee, it shall be lawfuj for the High Court 
 to make an order vesting such property in such person or persons 
 in such manner and for such estate as the said Court shall 
 direct ; and the order shall have the same effect as if the heir 
 or devisee of such trustee had duly executed a conveyance of 
 the property in the same manner for the same estate (a). 
 
 Trustee Act. 1850, s. 15. 
 
 (a) This section does not apply to leaseholds for years. Lewin, 7th 
 Ed.. 873. But a vesting order as to leaseholds for years may be made on 
 the appointment of new trustees under s. 36. See lie DalgleulUs Settle- 
 ment, L. R., 4 Ch. D., 143. 
 
 XVII. When any immoveable property is subject to a con- 
 
 tingent right in an unborn person, or 
 Contingent right of c j ags O f un born persons who, upon coming 
 
 into existence, would in respect thereof 
 
 hold such property upon any trust, it shall be lawful for the 
 High Court to make an order which shall wholly release and 
 discharge such property from such contingent right in such, 
 unborn person or class of unborn persons, or to make an order 
 which shall vest in any person or persons the estate or estates 
 which such person or class of unborn persons would, upon coming 
 into existence, hold in such property. 
 
 Trustee Act, 1850, s. 16. 
 
42 -I INDIAN TRUSTEE ACT. 
 
 APPDX. XVIII. In every case when any person holds, or shall hold 
 
 jointly or solely, any immoveable property, 
 
 Power to make an or is or shall be entitled to a contin- 
 order for vesting the t ht tnerein npon anv trnst ant j a 
 
 estate on refusal or , P , , , r ', 
 
 neglect of a trustee to demand shall hare been made upon such 
 convey or release. trnstee by a person entitled to require a 
 
 conveyance of such property, or a duly 
 
 authorized agent of such last-mentioned person requiring such 
 trustee to convey the same, or to release such contingent right, 
 it shall be lawful for the High Court, if the said Court shall be 
 satisfied that such trustee has wilfully refused (a) or neglected 
 to convey the said property for the space of twenty-eight days after 
 such demand (b), to make an order vesting such property in 
 such person or persons in such manner and for such estate as 
 the Court shall direct, or releasing such contingent right in 
 such manner as the Court shall direct ; and the said order shall 
 have the same effect as if the trustee had duly executed a 
 conveyance of the property, or a release of such right in the 
 same manner and for the same estate (c). 
 
 Trustee Extension Act, 1852, s. 2. See further as to vesting, ante, 
 pp. 334-5. 
 
 (a) It has been decided that a married woman is capable of refusing 
 Rowley T. Adams, 14 Beav.. 130. 
 
 (ft) In Knight v. Knight, W. N., 1866, p. 114. a divorced woman 
 obtained a vesting orderagainst her late husband. Levrin. 7th El.. 894. 
 
 Where a mortgagor had covenanted to surrender copyholds to his 
 mortgagee, and neglected to make such surrender within twenty-eight 
 days after demand and tender of engrossment by the mortgagee, the 
 Court, on the petition of the mortgagee, made a Testing order without 
 requiring service of the petition on the mortgagor. In re Crotce't 
 Mortgage, L. R., 13 Eq., 26. 
 
 XIX. When any person to whom any iramoveable property 
 has been conveyed by way of mortgage, 
 
 Power to convey in sha |i haye d j e ' d w i t hont having entered 
 
 place of mortgagee. . , .-, . . , , . - 
 
 into the possession or into the receipt of 
 
 the rents and profits thereof, and the money due in respect of 
 such mortgage shall have been paid to a person entitled to 
 receive the same, or such last-mentioned person shall consent 
 to an order for the reconveyance or vesting of such property, 
 then in any of the following cases it shall be lawful for the 
 High Court to make an order vesting such property in such 
 person or persons in such manner and for such estate as the said 
 Court shall direct, that is to say 
 
 when an heir or devisee of such mortgagee shall be out of 
 the jurisdiction of the High Court or cannot be found ; 
 
 when an heir or devisee of such mortgagee shall, upon a 
 demand by a person entitled to require a conveyance of such 
 property, or a duly authorized agent of such last-mentioned 
 person, have stated in writing that he will not convey the same, 
 
ACT xxvii OF 1866. 425 
 
 or shall not convey tlie same for the space of twenty-eight clays APPDX. 
 
 next after a proper deed for conveying such property shall have 
 
 been tendered to him by a person entitled as aforesaid, or a duly 
 authorized agent of such last-mentioned person ; 
 
 when it shall be uncertain which of several devisees of such 
 mortgagee was the survivor ; 
 
 when it shall be uncertain as to the survivor of several 
 devisees of such mortgagee, or as to the heir of such mort- 
 gagee whether he be living or dead ; 
 
 when such mortgagee shall have died intestate as to such 
 property and without an heir, or shall have died, and it shall 
 not be known who is his heir or devisee ; 
 
 And the order of the said High Court made in any one 
 of the foregoing cases shall have the same effect as if the 
 heir or devisee, or surviving devisee, as the case may be, had 
 duly executed a conveyance of the property in the same 
 manner and for the same estate. 
 Trustee Act, 1850, s. 19. 
 
 XX. In every case where the High Court shall, under 
 the provisions of this Act, be enabled 
 
 Power to appoint a to make an order having the effect of 
 person to convey in ,, 
 
 certain cases. a conveyance of any immoveable pro- 
 
 perty, or having the effect of a release 
 
 or disposition of the contingent right of any person or persons 
 born or unborn, it shall also be lawful for the High Court, 
 should it be deemed more convenient, to make an order ap- 
 pointing a person to convey such property, or release or dis- 
 pose of such contingent right ; and the conveyance or release 
 or disposition of the person so appointed (a) shall, when 
 in conformity with the terms of the order by which he is ap- 
 appointod, have the same effect, in conveying the property, or 
 releasing or disposing of the contingent right, as an order 
 of the High Court would in the particular case have had 
 under the provisions of this Act. In every case where the 
 High Court shall, under the provisions of this Act, be 
 enabled to make an order vesting in any person or persons 
 the right to transfer any stock transferable in the books of 
 any company or society established or to be established, it 
 shall be lawful for the High Court, if it be deemed more con- 
 venient, to make an order directing the secretary or any 
 officer of such company or society at once to transfer or join 
 in transferring the stock to the person or persons to be named 
 in the order (6) ; and this Act shall be a full and complete in- 
 demnity and discharge to all companies or societies and their 
 officers and servants for all acts done or permitted to be done 
 pursuant thereto (c), 
 Trustee Act, 1850, s. 20. 
 
 64 
 
42G INDIAN TRUSTEE ACT. 
 
 ( rt ) The conveyance should contain a recital showing that it is made 
 in obedience to the order of the Court, and should be executed by the 
 person appointed to convey in his own name. Lewin. 7th Ed., 875. 
 
 (i) The person here meant is not a beneficiary ; but where a person 
 has become absolutely entitled, the Court can appoint him a trustee, 
 and direct a transfer to him. Lewin, 7th Ed., 876. 
 
 (c) The Court under this section can only direct the Bank officer 
 to transfer in the place of the person creating 1 the difficulty ; and there- 
 fore where the stock was standing in the names of two persons, one of 
 whom was out of the jurisdiction, ic was necessary to order the person 
 within the jurisdiction to join in the transfer. Wade v. Uopkin-wn ; 
 Hodgson v. Hody&on, 1 Set. on Dec., 4th Ed., 521. 
 
 XXI. When any person or persons shall be jointly entitled 
 with any person out of the jurisdiction of 
 
 When trustee of stock the High Court (a), or who cannot be 
 or Government securi- f d concerning whora it shall be 
 
 ties out of the jurisdic- . ,. . 
 
 t,i on> uncertain whether he be living or dead, to 
 
 any stock or Government securities or thing 
 
 in action upon any trust ( b), it shall be lawful for the said Court (c) 
 to niake an order vesting the right to transfer such stock or 
 Government securities, or to receive the dividends, interest, or 
 income thereof, or to sue for or receive the dividends, interest, or 
 income thereof (d), or to sue for or recover- such thing in 
 action or any interest in respect thereof, either in such 
 person or persons so jointly entitled as aforesaid, or in such 
 last-mentioned person or persons, together with any person 
 or persons the said Court may appoint (e). When any sole 
 trustee (/) of any stock, Government securities, or thing in 
 action shall be out of the jurisdiction of the said Court, or cannot 
 be found, or it shall be uncertain whether he .be living or dead, 
 it shall be lawful for the said Court to make an order vesting the 
 right to transfer such stock or Government securities, or to 
 receive the dividends (g}, interest, or income thereof, or to sue 
 for and recover such thing in action, or any interest in respect 
 thereof, in any person or persons as the said Court may appoint. 
 
 Trustee Act, 1850. s. 22. 
 
 (a) Where the trustee out of the jurisdiction is incapacitated from 
 lunacy or infancy, the power of the Court must be sought for in the sec- 
 tions applicable to cases of lunatics and infants, and not in this section. 
 Lewin, 7th Ed., 876 ; Cramer v. Cramer, 5 DeG. and Sm., .'512. The 
 fact that the trustee is out of the jurisdiction should be recited in the 
 order. Re Maltnvarintj, 26 Beav., 172. 
 
 (b) The husband of an executrix is a trustee within the Act. Ex 
 parte Vradshaw, 2 D. M. G., 900 ; Re Wood, 3 D. F. J., 125. 
 
 (c) A petition for a vesting order to vest property in a new trustee 
 appointed under a power in the place of a trustee out of the jurisdic- 
 tion, must be served on all the persons interested in the fund, and it 
 must be proved by affidavit that the power has been properly exer- 
 cised, and that the proposed trustee is a fit and proper person. Re 
 Naynard's Settlement Trust. 16 Jur.. 1084. 
 
 (d) One of four trustees of a sum of stock being out of the juris- 
 diction, an order was made vesting the right to receive the dividends in 
 
ACT xxvii OF 186G. 427 
 
 the other three, but was, on appeal by the bank, varied by restricting it APPDX. 
 to the dividends to accrue due during the joint lives of the three. lie _ '. " 
 PC i/tun's Settlement. 2 De.G. and J.. 290. 
 
 (e) Where the stock is vested in two trustees one of whom is out of 
 the jurisdiction, the Court has no authority, under the first branch of the 
 section, to vest the right in the person who asks for it as being absolute 
 owner. lie lira** 1 * Trust, 4 W. R. (Eng.). 764 : see Lewin, 7th Ed.. 877. 
 
 (/) A and B being trustees, the Master found that it was uncertain 
 whether A was living or dead, but B was living; afterwards K died 
 It was held, that A was not a ' sole trustee.' The expression means a 
 person originally a sole trustee, or one who has become sole trustee by 
 surviving-. Re Randall'* Will, 1 Drew, 401. 
 
 (g) This section authorizes an order vesting the right to receive 
 future dividends. lie Peyton's Settlement, 1 DeG. and J., 290. 
 
 XXII. Where any sole trustee (a) of any stock, Government 
 securities, or thing in action shall neglect 
 
 ment securities, or to receive the divi- 
 dends, interest, or income thereof, or to sue for or recover such 
 thing in action, or any interest in respect thereof, according to 
 the direction of the person absolutely entitled thereto (J), for the 
 space of twenty-eight days next after a request in writing (c) for 
 that purpose shall have been made to him by the person absolutely 
 entitled thereto, it shall be lawful for the High Court to make 
 an order (d) vesting the sole right to transfer such stock or Gov- 
 ernment securities, or to receive the dividends, interest, or income 
 thereof (e), or to sue for and recover such thing in action, or any 
 interest in respect thereof in such person or persons as the Court 
 may appoint. 
 
 Trustee Act. ISoO, s. 23. 
 
 () The words ' sole trustee ' may mean all the trustees when there are 
 more than one. Re Hart nail. 5 DeG. and Sm., Ill; Re SpamfortK* 
 Settlement, 12 W. R. (Eng.), 978. 
 
 (ft) One of several trustees of a sum of stock is not a person absolutely 
 entitled within the meaning of this and the next section, nor is a 
 cextui y>' trust who has only a life-interest in the dividends, at least 
 where the application is to transfer the stock. It is doubtful whether 
 a person having a life-interest in the dividends may be considered abso- 
 lutely entitled, for the purpose of an application to receive the dividends 
 only. MacJtfn-.le v. Mackenzie, 16 Jur., 723. 
 
 Duly appointed new trustees are persons absolutely entitled.' Ex parte 
 Rtutell, 1 Sim.. N. S.. 404; Re Baxter's Will, 2 Sm. and Giff., Appx. v ; 
 1!,- Kills' s Settlement, 24 Beav., 426. 
 
 (c) As to trustee refusing, see s. 27. post. 
 
 (d) As to the person to be served, see s. 40. post. 
 
 (#) Section 27 provides for subsequently accrued dividends. 
 
 XXIII. Where any one of the trustees of any stock, Govern- 
 When one of several ment securities, or thing in action shall 
 trustees of stock, &c., neglect or refuse to transfer such stock 
 refuses to transfer or or Government securities, or to receive the 
 iv. ive and pay over dividends, interest, or income thereof, or 
 dividends. j. Q gue Qr Qr recover suc h thing in action, 
 
428 INDIAN TRUSTEE ACT. 
 
 APPDX. according to the direction of the person absolutely entitled thereto, 
 
 for the space of twenty-eight days next after a request iu 
 
 writing for that purpose shall have been made to him by such 
 person, it shall be lawful for the High Court to make an order 
 vesting the right to transfer such stock or Government securities, 
 or to receive the dividends, interest, or income thereof, or to sue 
 for and recover such thing in action, in the other trustee or trus- 
 tees of the said stock, Government securities, or thing in action, 
 or in any person or persons whom the said Court may appoint 
 jointly with such other trustee or trustees (a). 
 
 Trustee Act, 1850, s. 24. 
 
 (a) Where one of the three executors of a surviving trustee of 
 canal shares was of unsound mind, and the other two. when applied to 
 by the persons absolutely entitled to the shares, declined to do anything, 
 it was held, that an order could be made vesting the right to transfer the 
 shares in the persons beneficially interested. In re White, L. E., 5 
 Chan., 698. 
 
 XXIV. When any stock or Government securities shall be 
 When stock &c standing in the sole name of a deceased per- 
 is standing in the son, and his executor or administrator shall 
 name of a deceased be out of the jurisdiction of the High Court, 
 person. or canno t be found, or it shall be uncertain 
 
 whether such executor or administrator (a) be living or dead, or 
 such executor or administrator shall neglect or refuse to transfer 
 such stock or Government securities, or receive the dividends, 
 interest, or income thereof, according to the direction of the per- 
 son absolutely entitled thereto, for the space of twenty-eight days 
 next after a request in writing for that purpose shall have been 
 made to him by the person entitled as aforesaid, it shall be lawful 
 for the said Court to make an order vesting the right to transfer 
 such stock or Government securities, or to receive the dividends, 
 interest, or income thereof, in any person or persons whom the said 
 Court may appoint. 
 
 Trustee Act, 1850, s. 25. 
 
 (a) This section applies to a case in which the executor of a surviv- 
 ing trustee has not proved the will and has neglected to transfer on the 
 requisition of new trustees appointed out of Court Re Ellix's Settlement, 
 21 Beav.. 426 ; and the Court seems to have made a similar order when the 
 next-of-kin who was entitled to take out administration, had refused to 
 make the transfer. In re Strand's Trusts, W. N., 1874, p. 180; Lewin, 
 7th Ed., 878. 
 
 XXV. Where any order shall have been made under this Act 
 vesting the right (a) to any stock or Go- 
 Effect of an order vernment securities in any person or 
 vesting the legal right . , -, , ,, TT - i /-. i 
 
 to transfer stock, fee. persons appointed by the High Court, such 
 legal right shall vest accordingly, and 
 
 thereupon the person or persons so appointed are hereby author- 
 ized and empowered to execute all deeds and powers-of-attorney, 
 
ACT xxvii OF 18C6. 429 
 
 and to perform all acts relating to the transfer of such stock and APPDX. 
 
 Government securities into his or their own name or names, or 
 
 otherwise, or relating to the receipt of the dividends, interest, or 
 income thereof, to the extent and in conformity with the terms of 
 such order. All companies and associations whatever, and aTl 
 persons, shall be equally bound and compellable to comply with 
 the requisitions of such person or persons so appointed as afore- 
 said to the extent aud in conformity with the terms of such 
 order, as such companies, associations, or persons would have been 
 bound and compellable to comply with the requisitions of the 
 person in whose place such appointment shall have been made, 
 and shall be equally indemnified in complying with the requisition 
 of such person or persons so appointed as they would have been 
 indemnified in complying with the requisition of the person in 
 whose place such appointment shall have been made. After 
 notice in writing of any such order of the High Court concerning 
 any stock or Government securities shall have been given, it shall 
 not be lawful for any company or association, or any person 
 having received such notice, to act upon the requisition of the 
 person in whose place an appointment shall have been made, in any 
 matter relating to the transfer of such stock or Government secu- 
 rities or the payment of the dividends, interest, or income thereof. 
 
 Trustee Act, 1850, s. 26. 
 
 O) See s. 29, post, and Re Peacock, L. K., 14 Ch. D., 212. 
 
 XXVI. When any order shall have been made under this Act 
 
 by the High Court vesting the legal right 
 
 Effect of an order J.Q sue for or recover any thing in action, 
 vesting: legal right in . , , . . , t ' . . 
 
 athiniinlction? or an y interest m respect thereof, in any 
 
 person or persons, such legal right shall 
 
 vest accordingly ; and thereupon it shall be lawful for the person 
 or persons so appointed to carry on, commence, and prosecute, in 
 his or their own name or names, any suit or other proceeding for 
 the recovery of such thing in action in the same manner in all 
 respects as the person in whose place an appointment shall have 
 been made could have sued for or recovered such thing in action. 
 
 Trustee Act, 1850, s. 27. 
 
 XXVII. "Where any person shall neglect or refuse to transfer 
 
 any stock or Government securities, or 
 
 On neglect to trans- to receive the dividends, interest, or income 
 fer stock, &c., for twen- thereof, or to sue for or recover any thing 
 ty-eight days, order j n action, or any interest in respect thereof, 
 may be made vesting f th e f twenty . eight days next 
 
 right to transfer in . - . y , ~ J . , 
 
 such person as the Court after an or(ler of tlie Hl S" Conrt for that 
 shall appoint. purpose shall have been served upon him, 
 
 it shall be lawful for the said Court to 
 
 make an order (a) vesting all the right of such person to transfer 
 such stock or Government securities, of to receive the dividends, 
 
430 
 
 INDIAN TRUSTEE ACT. 
 
 APPDX. interest, or income thereof, or to sue for or recover such thing in 
 action, or any interest in respect thereof, in sucli person or persons 
 as the said Court may appoint. 
 
 a Trustee Extension Act. 1852, s. 4. 
 
 (<i) The order may be made on motion; a petition is not necessary. Re 
 HolbrooVs Will, b Jur., N. S., 1333. 
 
 XXVIII. When any stock or Government securities shall be 
 
 standing in the sole name of a deceased 
 
 On like neglect by p erS on, and his executor or administrator 
 executor similar order \ u f i r i 
 
 may be made. MHUI refuse or neglect to transfer such 
 
 stock or Government securities, or receive 
 
 the dividends, interest, or income thereof for the space of twenty- 
 eight days next after an order of the High Court for that purpose 
 shall have been served upon him, it shall be lawful for the said 
 Court to make an order vesting the right to transfer such stock or 
 Government securities, or to receive the dividends, interest, or 
 income thereof, in any person or persons whom the said Court may 
 appoint (a). 
 
 Trustee Extension Act, 1852. s. 5. 
 
 (fl) It is the practice of the Bank of England not to allow the divi- 
 dend to be split into fractional parts. Skynner v. Pelicftet, 9 W. R. 
 (Eng.), 191; Lewin, 7th Ed., 895. 
 
 XXIX. When any order being, or purporting to be. under this 
 
 Act shall be made by the High Court, vest- 
 Companies and asso- ing the rij? i lt to any stock or Government 
 ciations to comply with ' , , , i i . / 
 
 such orders securities, or vesting the right to transfer 
 
 any stock or Government securities, or 
 
 vesting the right to call for the transfer of any stock or Govern- 
 ment securities in any person or persons, in every such case the 
 legal right to transfer such stock or Government securities shall 
 vest accordingly (a) ; and the person or persons so appointed 
 shall be authorized and empowered to execute all deeds and powers- 
 of-attorney, and to perform all acts relating to the transfer of 
 such stock or Government securities into his or their own name 
 or names, or otherwise to the extent and in conformity with the 
 terms of the order. All companies and associations and all persons 
 shall be equally bound and compellable to comply with the requi- 
 sitions of such person or persons so appointed as aforesaid, to the 
 extent and in conformity with the terms of such order, as sucli 
 companies, associations, or persons would have been bound and 
 compellable to comply with the requisitions of the person, in 
 whose place such appointment shall have been made. 
 
 Trustee Extension Act, 1852, s. 6. 
 
 (a) For form of order on appointment of new trustees, where the 
 funds are invested on unauthorized securities, and it is desired not to 
 transfer them into the names of the new trustees, but to sell them and 
 ro-invest the funds in nccordance with the trusts of the sctl'umuut. see 
 lie Peacock, L. R., 14 Ch. D., 212. 
 
ACT xxvii or 1866 431 
 
 Where the trustees appointed by a testator died and new trustees were APPDX, 
 appointed in their place, and all the trust-property was vested in the - 
 now trustees, the bank declined to act unless the order directed the new 
 trustees to transfer the stock into their own names. Re Glanville's 
 W. N., 1877, p. 248 ; 1878, p. 2. 
 
 XXX. When any minor shall be solely entitled to any stock 
 Power to make an or- or Government securities upon any trust, 
 
 der for the transfer or it shall be lawful for the High Court to 
 receipt of dividends of make an order vesting in any person or 
 
 stock. &c., in name of a persons the right to transfer such stock 
 minor trustee. r, ,- 
 
 or Government securities, or to receive 
 
 the dividends, interest, or income thereof (a). When any minor 
 shall be entitled jointly with any other person or persons to any 
 stock or Government securities upon any trust, it shall be lawful 
 for the said Court to make an order vesting the right to transfer 
 such stock or Government securities, or to receive the dividends, 
 interest, or income thereof, either in the person or persons jointly 
 entitled with the minor, or with him or them together, with any 
 other person or persons the said Court may appoint (b). 
 
 Trustee Extension Act. 1S52. s. 3. 
 
 (a) Agents of executors invested a sum of stock in the names of 
 infants, who had an interest under the will, instead of in the names of the 
 executors, and the Court made a vesting order for the transfer into the 
 names of the executor. Rives v. Rircx. W. N., 1866, p. 144 ; Lewin. 7th 
 Ed., 894 So. where the executors had invested stock in the names of 
 themselves and an infant, and the infant was the survivor. Gardner v. 
 C(rli'g, L. R.. 3 Ch. D., 304. 
 
 (ft) See Sanders v. Homer, 25 Beav., 467. 
 
 XXXI. When a decree or order shall have been made by the 
 Where a decree is Hi S h Court directing the sale of any im- 
 
 made for sale of im- moveable property for the payment of the 
 moveable property for debts (a) of a deceased person, every 
 payment of debts. person holding such property or entitled 
 
 to a contingent right therein as heir, or under the will of such 
 deceased debtor, shall be deemed so to hold or be entitled (as the 
 case may be) upon a trust within the meaning of this Act: and 
 the High Court is hereby empowered to make an order wholly 
 discharging the contingent right under the will of such deceased 
 debtor of any unborn person (b). 
 
 Trustee Act, 1850, s. 29. 
 
 (a) See s. S2.poxt, and Wake v. Wake, 17 Jur.. 545. 
 
 (ft) An order in a cause may apparently be made without a petition. 
 Wood v. Beetlestvne. 1 K and J., 213. In Gough v. Sage, W. K, 1871, 
 p. 437, however, a petition was presented. 
 
 XXXII. When any decree or order shall have been made (a) 
 High Court may make by the High Court, whether before or after 
 
 an order for vesting the the passing of this Act, directing the sale 
 
 estate in lieu of con- of i mra0 veable property for any pur- 
 veyance by a party to J , . /T\ i ij- 
 
 the suit after a decree P ose whatever (b), every person holding 
 
 or order for sale. such property, or entitled to a contingent 
 
432 INDIAN TRUSTEE ACT. 
 
 APPDX. right therein, being a party to the suit or proceeding in which 
 
 such decree or order shall have been made and bound thereby, or 
 
 being otherwise bound by such decree or order, shall be deemed 
 so to hold or be entitled (as the case may be) upon a trust within 
 the meaning of this Act. In every such case it shall be lawful 
 for the High Court (c), if the said Court shall think it expedient 
 for the purpose of carrying such sale into effect, to make an 
 order vesting such property or any part thereof for such estate as 
 the Court shall think fit, either in any purchaser or in such other 
 person as the Court shall direct (d). Every such order shall 
 have the same effect as if the person so holding or entitled had 
 been free from disability and had duly executed all proper con- 
 veyances and assignments of such property for such estate. 
 
 Trustee Extension Act, 1852, s. 1. 
 
 (a) Where a testatrix devised real estate on trust for sale, but there 
 had never been a trustee of the will, in consequence of the death, 'during 
 the testatrix's lifetime, of the sole trustee named in the will, and it was 
 not known who was the heir of the testatrix, it was hsld, that the Court 
 had no jurisdiction under the Trustee Act, 1850, in the absence of the heir, 
 to appoint a trustee and to make an order vesting in him the real estate 
 descended. Gtinson v. Siuipson, L. R., 5 Eq., 332 : see Goiigh v. Bage,''\I. 
 N., 1871, p. 437. 
 
 () Qiia;re. Whether the section applies to the case where the person 
 to convey is not under disability ? Lewin, 7th Ed., 893. 
 
 (c) Where the estate in land sold under the order of the Court is vest- 
 ed in a person of unsound mind, but not found lunatic, an order may be 
 made appointing a person to convey the estate. Herring v. Clark, L. R., 
 4 Chan., 167. 
 
 (d) Where property has been, by an order of the Court, directed to 
 be sold, and where some of the parties interested in such property are 
 either out of the jurisdiction, married women, or minors, and the place 
 of abode of others of them is unknown, the Court will, on petition under 
 this Act, appoint a person to convey the interest of such persons to any 
 purchaser, notwithstanding that, at the time the order is applied for. no 
 contract for the sale of the property has been entered into. But the 
 Court cannot make such an order with respect to the interest of a party 
 who has not been served, and who has not entered appearance. Lackcr- 
 stecn v. Itostan, I. L. R., 7 Calc.,32. 
 
 XXXIII. Where any decree or order shall be made by the 
 
 High Court for the specific performance 
 
 Court to declare what e 
 
 parties are trustees of of a contract concerning any immoveable 
 
 immoveable property property (a), or for the partition (b), or 
 
 comprised in any suit exchange of any immoveable property (c), 
 
 and as to the interests or generally when a decree shall be made 
 
 rf persons unborn. for the conveyauce of any i mmove able 
 
 property, either in cases arising out of the doctrine of election 
 or otherwise, it shall be lawful for the said Court to declare that 
 any of the parties to the said suit wherein such decree is made 
 are trustees of such property, or any part thereof, within the 
 meaning of this Act, or to declare concerning the interests of 
 
ACT xxvn OF 1866. 433 
 
 unborn persons (d) who might claim under any party to the said APPDX. 
 
 suit, or under the will or voluntary settlement of any person 
 
 deceased who was during his lifetime a party to the contract or 
 transactions concerning which such decree is made, that such 
 interests of unborn persons are the interests of persons who, upon 
 coming into existence, would be trustees within the meaning of 
 this Act. Thereupon it shall be lawful for the High Court to 
 make such order or orders as to the estates, rights, and interests 
 of such persons, born or xinborn, as the said Court might, under 
 the provisions of this Act, make concerning the estates, rights, 
 and interests of trustees, born or unborn. 
 
 Trustee Act, 1850, s. 30. 
 
 () Where a donee of a power of jointuring under a settlement was 
 ordered, in a specific performance suit instituted by his wife, to execute 
 the power by a deed to be approved of by the Master, whereby a certain 
 sum was to be appointed as the plaintiff's jointure, and the defendant 
 refused to obey the decree, it was held, that he might be declared a trustee 
 of all the rights, interests, and property acquired by him under the set- 
 tlement, and the Court appointed a person to execute the requisite deed 
 in his absence. Ex partc Mornington, 4 D. M. G.. 537. In a suit for the 
 specific performance of a lease, the Court has no power either to appoint 
 a person to convey in the place of a party refusing to execute the lease 
 or to make a vesting order. Grace v. Bay nt on, W. N., 1877. p. 79. 
 
 (J) In a partition-suit, instead of giving an infant defendant a day 
 to show cause, the Court may declare him a trustee of such parts of the 
 property as are allotted to the other parties. Botvra v. Wright, 4 D. G-. 
 and Sm., 265. 
 
 Where a decree in a partition-suit had declared a lunatic a trustee of 
 an allotted portion of the land for the plaintiff, it was held, that a vesting 
 order could be made under the Act. In re Molyneux, 4 D. F. J., 365. 
 
 (c) In a foreclosure decree on an equitable mortgage, the mortgagor 
 was declared a trustee, and an order was made vesting the estate in the 
 mortgagee (Lechmcre v. Clamp, 30 Beav.. 218): and in such a suit where 
 the estate of the mortgagor was devised in trust for sale, and had 
 become vested in an infant, who was also one of the persons beneficially 
 interested, it was held, that the decree should contain a direction that, in 
 cse the mortgages were not redeemed within six months, the infant 
 should be a trustee for them within the meaning of the Act. and the 
 executrix of the mortgagor be ordered to convey the estate to the mort- 
 gagees on his behalf. Foster v. Parker, L. R., 8 Ch. D., 147. See further 
 Lewin, 7th Ed., 881. 
 
 (rf) This includes heirs of a person now living. Basnett v. Moxon, 
 L. R., 20 Eq., 182. 
 
 XXXIV. It shall be lawful for the High Court to make 
 declarations and give directions concern- 
 Power to give direc- m g the manner in which the right to any 
 tr^feTsto'ck slfaU be stock > Government securities, or thing in 
 exercised. action, vested under the provisions of this 
 
 Act, shall be exercised, and thereupon the 
 
 person or persons in whom such right shall be vested shall be com- 
 pellable to obey such directions and declarations by the same pro- 
 cess as that by which other orders under this Act are enforced (a). 
 Trustee Act, 1850, s. 31. 
 
 55 
 
434 INDIAN TRUSTEE ACT. 
 
 AP'PDX. ( a ) Under this section the Court has no jurisdiction to order the 
 
 ' fund into Court {Re Parley, 29 L. J., 72 : see Lewin, 7th. Ed., 882) ; nor 
 
 Las it jurisdiction to give any direction as to the property of a person 
 not found lunatic by inquisition except in cases where it is being 
 administered by the Court. Re Tayler, 2 D. F. J., 125. 
 
 XXXV. In all cases in which it shall be expedient (a) to 
 appoint (J) a new trustee or new trustees, 
 
 Power to Court to and it ghall be found i nesp edient, difficult, 
 make order appointing . , . , , r , 
 
 new trustees or "B practicable so to do without the 
 
 assistance of the High Court, it shall be 
 
 lawful for the said Court to make an order appointing a new 
 trustee or new trustees, whether there be any existing trustee or 
 trustees or not at the time of making such order (c), and if there 
 be such trustee or trustees, either in substitution for or in addi- 
 tion to him or them. The person or per- 
 New trustees to have gons w h o> upon t } ie ma king of such order, 
 
 pTnSl V* deSe ' sha11 be tr stee or trustees > sM1 have the 
 suit, same rights and powers as he or they 
 
 would have had if appointed by decree in 
 a suit duly instituted (d). 
 
 Trustee Act, 1850, ss. 32 and 33, and Trustee Extension Act, 1852, s. 9. 
 
 (a) It is ' expedient ' to appoint a new trustee where the trustee 
 appointed is an infant. Re Porter's Trust, 2 Jur., N. S., 349 ; ReGartside'g 
 Estate, 1 W. R. (Eng.), 196. In such, a case the appointment should be 
 without prejudice to any application by the infant to be restored to the 
 trusteeship on coming of age. Re Shelmerdine, 33 L. J. , Chan., 474. So it 
 is ' expedient ' to appoint a new trustee when there is no representative 
 of a surviving trustee (Re Matthen-s, 26 Beav., 463 ; Re Davit's Trn.it,*, 
 L R.. 12 Eq , 214). or there would be difficulties in obtaining a representa- 
 tive. Daris v. Chanter. 4 Jur., N. S., 272. Where two trustees were desi- 
 rous of retiring, and it was doubtful whether the power of appointing 
 new trustees in the settlement applied to the case, it was deemed ' expe- 
 dient' to appoint new trustees. Lewin, 7th Ed., 882, citing Re Woodgate's 
 Settlement. 5 W. R., Re Armstrong's Settlement, ibid. So. a new trustee has 
 been appointed in the place of a trustee who had become bankrupt, had 
 never surrendered, and had not been heard of for several years. Re llen- 
 xhuiv's Trusts. L. R., 4 Chan., 783 ; and see Coombes v. Brookes, L. R., 12 
 Eq., 61. The Court may appoint trustees where there never have been 
 any trustees, or where they have all died in the testator's lifetime. Re 
 Smirthivaite''s Trusts, L. R . 11 Eq.. 251. 
 
 (b) The Court has no jurisdiction under this Act to appoint new 
 trustees where there are trustees de facto acting as such (Eu- partc llad- 
 ley. 5 DeG. and Sm., 67) ; nor has it jurisdiction to take away the power 
 of appointing new trustees from the donee of the power, where the donee 
 is capable of exercising and willing to exercise it. although such donee 
 may have disclosed an intention or desire to exercise his power corruptly. 
 Re Hodson's Settlement, 9 Hare, 118. 
 
 Where one of two trustees was residing out of the jurisdiction, but it 
 did not appear whether such residence was likely to be permanent, the 
 Court refused to appoint a new trustee in his room. Lewin, 7th Ed., 882, 
 citing lie Mair. 19 Jur.. 608. See lie The Lincoln Primitive Methodist's 
 Cluipel, 1 Jur., N. S., 1011. 
 
 The Act was not intended to extend to the displacing of trustees 
 desirous to continue in the trust, and to the appointing of others in their 
 
ACT xxvn OF 1866. 435 
 
 place ; and especially not to the displacing of trustees and the appointing APPDX. 
 
 of others, on the ground of alleged misconduct in the trustees to be dis- 
 
 placed. The section was meant to apply to cases in which there might 
 be a question about the expediency of what was sought to be done. It 
 was not intended to alter the right of every trustee to have his account 
 taken in Court in the presence of all the parties interested under the 
 trust, so that all might be bound, and to have any balance which might 
 be found due to him on the result of the account paid, or secured to him 
 before he was denuded of the trust-estate. Re Blanchard, 7 JUT., N. S., 
 605: 3 D. F. and J.. 131. 
 
 Where a trustee had gone abroad and his whereabouts was not known, 
 a new trustee was appointed. Re Harrison's Trust, 22 L. J., N. S., 
 Chan.. 69. See Re Joyce's Estate. L. R., 2 Eq., 576 ; Re Bignold's Trusts, 
 L. R., 7 Chan.. 223. 
 
 So. new trustees were appointed where the trustees had disclaimed, 
 nnd the parties in whom the power of appointment was vested were in 
 India. Re Humphry's Estate. 1 Jur., N. S., 921. 
 
 When the person having power to appoint a new trustee is a lunatic, 
 the Court has power to appoint a new trustee under the Act. Re Sjpar- 
 r<nr. L. R.. 5 Chan.. 662. 
 
 Where new trustees have been appointed by the donees of a power, the 
 Court will formally re-appoint them for the purpose of making a vest- 
 ing order. Re Pearson. L. R . 5 Ch. Div., 982. An affidavit of fitness 
 will be required Re Maynard's Settlement Trusts, 16 Jur., 1084. 
 
 Where all the cestuis que trustent are resident out of the jurisdiction, 
 the Court will appoint new trustees resident out of the jurisdiction. Re 
 Lhhliard. L. R.. 14 Ch. Div.. 310. 
 
 As to appointing new trustees in the place of a lunatic trustee, see 
 Lewin. 7th Ed., 883. 
 
 (>) These words are taken from the Trustee Extension Act, 1852. e. 9. 
 
 (<i) The Court will appoint two trustees in the place of one, as trust- 
 property should be prevented from coming into the hands of a sole 
 trustee Re Tiinstall's Will, 4 DeG. and Sm., 421. and it has added two 
 new trustees to two original trustees. Lewin. 7th Ed.. 884, citing Re 
 1-Jaycott. 5 W. R., (Eng.) 15. But it will not appoint one trustee in the 
 place of two or more Re Dickinson's Trusts, 1 Jur., N. S., 724 ; Re Ellison's 
 Trust, 2 Jur., N. S., 62 ; Re Porters Trust, ibid, 348, unless the trust is 
 to be shortly wound up. Re Reynault, 16 Jnr., 233. Two trustees may be 
 appointed in the place of three Bulkelt-y v. Earl of Eglinton, 1 Jur., N. S., 
 994; or three in the place of four. Emmet v. Clarke,! Jur., N. S, 404. 
 
 Where a legacy had been bequeathed to a sole trustee upon trust for a 
 tenant-for-life. and then for reversioners absolutely, the Court appointed 
 an additional trustee, and ordered the costs of a petition, presented for 
 that purpose by the reversioners, to be paid by them, and not out of the 
 cor/nix. lie Tlrackcnkury's Trusts. L. R., 10 Eq., 45. 
 
 When a trustee wishes to retire and a successor cannot be found, the 
 Court can appoint the continuing trustees to be sole trustees in the place 
 of the continuing and retiring trustee. Re Stokes' 's Trusts, L. R., 13 Eq., 
 333 ; Re Hen-ford's Trusts, L. R., 13 Ch. Div., 135. 
 
 In the case of a charity, the Court appointed ten new trustees and 
 vested the estate in the whole body, and directed that when reduced to 
 three, the trustees should apply at Chambers for the appointment of new- 
 trustees. Lewin, 7th Ed., 884, citing Re Beryfiolt, 2 Eq. Rep., 90. 
 
 The Court will not, if it can be avoided, appoint a cestui que trust to be 
 a trustee. E.r parte Glutton, 17 Jur.. 988. As to appointing the husband 
 of a ce.tt>ii que trust, see Lewin. 7th Ed., 884. Nor will the Court appoint 
 an alien resident out of the jurisdiction a trustee, unless it is necessary 
 from the circumstances of the case to do so. Re Hill's Trust, W. N., 1874, 
 p. 228. 
 
436 INDIAN TRUSTEE ACT. 
 
 APPDX. K a cestui que trust institutes a suit for the appointment of a new 
 trustee, when a petition would have been sufficient, he will have to bear 
 tbe additional costs. Legg v. Mackrell, 1 Giff., 165 ; Thomas v. Walker, 
 18 Beav.. 5'Jl. 
 
 Where there are two distinct trust-estates under the same will, but 
 only one set of trustees, the Court, with the consent of the representa- 
 tive of the surviving trustee, will appoint new trustees of one estate 
 without dealing with the other estate Re Dennis, 12 W. R., (Eng.) 575 ; 
 and generally the Court assumes the power of appointing separate trustees 
 of separate shares, He CotterilVs Trusts. W. X., 1869, p. 183. See Lewin, 
 7th Ed., 884. 
 
 The petition for appointment of new trustees must be supported by 
 affidavits of the facts stated, and of the fitness of the proposed trustees, who 
 must give their written consent to the appointment. In Re Battertby't 
 Truxt, 16' Jur., 900. Sometimes a reference as to the fitness of the 
 trustees is directed ; but it is not necessary if the evidence adduced is 
 sufficient. Re Tunstall, 15 Jur., 6-15. An affidavit of fitness by the soli- 
 citor in a suit is not sufficient. Greendy v. Buckrldge, 22 L. J., Chan., 
 1007. 
 
 The new trustee need not appear upon the petition to consent Re 
 Draper's Settlement, 2 W. R. (Eng.), 440 ; though they may appear to 
 consent. Re Parka's Tr^st, 21 L. J., 218. If they do not appear, an 
 affidavit that the proposed new trustees will consent is insufficient Re 
 Parke's Truxt. 21 L. J., 218, and their written consent must be proved. 
 Lewin, 7th Ed., 885. 
 
 XXXVI. It shall be lawful (a) for the High Court, upon 
 making any order (ft) for appointing a 
 
 Power to Court to new trustee or new trustees, either by the 
 vest immoveable pro- , j / \ 
 
 perty in new trustee. same or any subsequent order (c), to 
 direct that any immoveable property, sub- 
 ject to the trust (d), shall vest in the person or persons who, upon 
 the appointment, shall be the trustee or trustees for such estate as 
 the Court shall direct. Such order shall have the same effect as 
 if the person or persons who, before such order, was or were the 
 trustee or trustees (if any) had duly executed all proper convey- 
 ances of such property for such estate (e). 
 
 Trustee Act, 1850, s. 34. 
 
 (rt) The Court has authority to make a vesting order, although there 
 may be a person capable of executing a conveyance. Re Manning's 
 Trusts. Kay, xxviii. 
 
 (b) Where an order is made under the Act, subject to the production 
 of evideuce to the Registrar, the order will bear date on or after the day 
 of the production of the evidence. Where a party directed to transfer 
 died between the making and the date of the order, the Court made a 
 supplemental order to meet the difficulty, without requiring a further 
 petition. Re Havelock's Trust, 11 Jur., N. S., 906. 
 
 (c) The Court has jurisdiction to make a vesting order of the 
 legal estate in mortgaged lands when a transfer of the mortgage 
 has been ordered by the Court, and it is doubtful whether the 
 trustees of the debt have power to convey the legal estate. 
 Re Hughes' s Settlement Trusts, 2 H. and M., 695. A vesting order may be 
 made after the appointment of trustees in a suit. Iliid. 
 
 (</) Where a sole trustee of leaseholds had died intestate, and had 
 no legal personal representative, and new trustees had been duly 
 
ACT xxvn OF 1866. 437 
 
 appointed under the settlement, the Court re-appointed the same two APPDX. 
 
 persons trustees and made an order vesting the leaseholds in them. lie 
 
 D<ilglelsh'a Settlement, L. R., 4 Ch. D.. 143 ; see further Lewin. 7th Ed..385. 
 (e) In a suit to appoint new trustees, it appeared that of two remain- 
 ing trustees one had goue out of tie jurisdiction, and the other was wil- 
 ling to act. it was held, that a vesting order could be made to vest the 
 estate in the new trustees to be appointed for such estate as was vested 
 in the continuing and absent trustee. Smith v. Smith, 3 Drew, 72. 
 
 XXXVII. It shall be lawful for the High Court, upon 
 Power to Court to making any order for appointing a new 
 
 vest right to call for trustee or new trustees, either by the 
 transfer of stock, or to same or by any subsequent order, to vest 
 sue, in new trustee. t h e r jgi, t to ca n for a transfer of any 
 
 stock (a) or Government securities subject to the trust, or to 
 receive the dividends, interest, or income thereof, or to sue for or 
 recover any thing in action subject to the trust, or any interest 
 in respect thereof, in the person or persons who upon the 
 appointment shall be the trustee or trustees (J). 
 
 Trustee Act, 1850. s. 35. 
 
 () Under this section the Court cannot vest the right to the stock in 
 the new trustees. lie Smyth's Settlement. 4 DeG. and Sm., 499 ; see s. 29, 
 ante. p. 430. The Court has power under this section to vest the right 
 as to stock standing in the name of a deceased person who has no personal 
 representative. .Ktf Herbert's Will, 8 W. E. (Eng.), 272, cited Lewin, 
 7th Ed.. 886. 
 
 (a) Where a breach of trust has been committed, the Court, though it 
 sanctions the appointment of a new trustee, will make no order respect- 
 ing the property, lest by so doing it should sanction the breach of 
 trust. He farru0' Trunt, 22 L. J., Chan., 69. 
 
 () The effect of a vesting order is to vest the estate at once from 
 its date in the new trustees without any further formality. Wood/all 
 v. Arbitthnot, L. K., 3 P. and D., 109. 
 
 XXXVIII. Any such appointment by the High Court of 
 
 new trustees, and any such conveyance 
 
 OW trustees not to or transfer as aforesaid, shall operate no 
 abilitv ar 6 further or otherwise than as a discharge 
 
 to any former or continuing trustee, than 
 
 an appointment of new trustees under any power for that pur- 
 pose contained in any instrument would have done. 
 
 Trustee Act, 1850, s. 36. 
 
 XXXIX. An order Tinder any of the hereinbefore contained 
 
 provisions, for the appointment of a new 
 \vho may apply un- 
 der Act trustee or new trustees, or concern- 
 ing any immoveable property, stock, or 
 
 Government securities, or thing in action subject to a trust, may 
 be made upon the application of any person beneficially inter- 
 ested in such immoveable property, stock, Government secu- 
 rities, or thing in action, whether under disability or not (a), 
 or upon the application of any person duly appointed as a 
 
438 INDIAN TRUSTEE ACT. 
 
 APPDX. trustee thereof ; and an order under any of the provisions 
 
 hereinbefore contained concerning any immoveable property, 
 
 stock, Government securities, or thing in action subject to a 
 mortgage, may be made on the application of any person 
 beneficially interested in the equity of redemption, whe- 
 ther under disability or not, or of any person interested in 
 the moneys secured by such mortgage. 
 
 Trustee Act, 1850, s. 37. 
 
 (a) A person who has a contingent interest in a trust-fund has a 
 Im-Hs standi to present a petition for the appointment of new trustees. 
 lie Shcpparcfs Will, 4 D. F. and J., 423. 
 
 The purchaser of property sold under an order of Court is ' bene- 
 ficially interested,' and is the proper person to apply for a vesting 
 order. Aylex v. Cox, 17 Beav.. 584. He may join with the plaintiffs in 
 presenting the petition. Rowley v. Adattus, 14 Beav., 130. Creditors who 
 have obtained a decree for the administration of the estate of their 
 deceased debtor, under which a contract for the sale of hia real 
 estate has been entered into and the purchase-money paid into 
 Court, are ' beneficially interested ' in the lands comprised in the 
 contract, and are entitled to apply for a vesting order (Me Wnif/f/, 
 1 DeG. J. and S., 356) : but the committee of the lunatic is not. Re 
 Bourke, 2 DeG. J. and S., 426. 
 
 XL. When any person shall deem himself entitled to an order 
 under any of the provisions hereinbefore 
 
 by p^tSn. 011 may contained, it shall be lawful for him to 
 
 present a petition (a) to the High Court 
 
 for such order as he may deem himself entitled to, and he may 
 give evidence by affidavit, or otherwise (6), in support of such 
 petition before the said Court, and may serve such person or 
 persons with notice of such petition as he may deem entitled to 
 service thereof (c). 
 
 Trustee Act, 1850, s. 40. 
 
 (a) When a petition has been presented, it may be amended by an 
 order of the Court by adding co-petitioners without being re-answered. 
 Me Cartmriglifs Trust, 8 W. R., (Eng.), 492, cited Lewin, 7th Ed., 887. 
 
 (b) In practice, the evidence adduced is universally by affidavit ; but 
 under the words ' or otherwise ' the applicant is not confined to evidence 
 by affidavit. Lewin, 7th Ed., 887. 
 
 (c) All the ccstuis qtte trustent ought, as a general rule, to be served. 
 See the cases cited, Lewin, 7th Ed., 887 ; but the Act does not in terms so 
 require, and it is not unusual to dispense with service on all parties. Re 
 Blanchard, 3 D. F. and J., 137 ; and see attersb>fs Trusts, L. R., 10 Ch. 
 D., 228. 
 
 The persons constituting different classes of cegtnw qiie trustent may 
 be proved by affidavit without strict evidence of certificates and affida- 
 vits of identity Re Hoskins, 4 DeG. and J., 436. 
 
 On a petition to appoint new trustees in the place of trustees desirous 
 of retiring, the cextitis que trustent and the old trustees must appear (Re 
 Sloper, 18 Beav.. 596), and they will have their costs. Futvoye v. Kcnuard, 
 3 L. T., N. S., 687. 
 
 It is not, however, necessary to serve the petition on recusant trustees. - 
 Re Baxter, 2 Sin. and G., Appx. v. 
 
 . A petition for an order vesting in a new trustee property, of which a 
 trustee has become lunatic, ought to be served on his committee as the 
 
ACT xxvii OF 18G6. 439 
 
 trustee may have claims. Re Saumarez. 8 D. M. G., 320; but see Re APPDX. 
 Green. L. R., 10 Chan., 272. 
 
 Service of a petition vesting in newly-appointed trustees lands which 
 had descended to the infant heir of the former sole trustee upon the 
 guardian of the infant heir is not necessary {Be Little, L. R. , 7 Eq., 323) ; 
 but the adult heir of a surviving trustee must be served, for he may 
 have some claim to costs. Lewin, 7th Ed.. 1887. 
 
 The Court has jurisdiction to order service of the petition upon a 
 person out of jurisdiction. Ibid. 
 
 XLL Upon the hearing of any such petition, it shall be 
 lawful for the said High Court, should it 
 
 What may be done b e deemed necessary, to direct a reference 
 to one of the Judges of the Court to 
 
 inquire into any facts which require such an investigation, or it 
 shall be lawful for the said Court to direct such petition to stand 
 over, to enable the petitioner to adduce evidence or further 
 evidence before the Court, or to enable notice, or any further notice 
 of such petition to be served upon any person or persons. 
 Trustee Act. 1850, s. 41. 
 
 XLIL Upon the hearing of any such petition, it shall be 
 
 lawful for the High Court to dismiss such 
 Court may dismiss .... .,, ., 1 
 
 petition with or without petition with or without costs, or to make 
 costs. an order thereupon in conformity with the 
 
 provisions of this Act. 
 Trustee Act, 1850. s. 42. 
 
 XLIII. Whensoever in any cause or matter, either by the 
 evidence adduced therein, or by the 
 * admission of tue parties, or by report of one 
 cf the Judges of the Court, the facts 
 necessary for an order under this Act shall appear to the High Court 
 to be sufficiently proved, it shall be lawful for the said Court, 
 either upon the hearing of tbe said cause or of any petition or 
 application in the said cause or matter, to make such order under 
 this Act (a). 
 
 Trustee Act, 1850, s. 43. 
 
 (a) An order may be made in a suit without a petition. See the 
 cases collected, Lewin, 7th Ed., 888. 
 
 As to whether the order should not be made in Court and not in Cham- 
 bers, see Frodxham v. Frodsham. L. R., 15 Ch. D., 317. 
 
 The Court has no jurisdiction to make a vesting order respecting 
 property which is vested in a lunatic, but there must be a petition in 
 lunacy. Lewin, 7th Ed., 888, citing Jeffreys v. Drysdale, 9 W. R., 428. 
 
 XLIV. Whenever any order shall be made under this Act by 
 
 , the High Court for the purpose of con- 
 Order made by ,the . u i f 
 High Court founded on Te 7 m g an 7 immoveable property, or for 
 certain allegations to the purpose of releasing or disposing of 
 be conclusive evidence any contingent right, and such order shall 
 of the matter contained be f ouu d e d on an allegation of the personal 
 in such allegations. ., ,. 
 
 incapacity ot a trustee or mortgagee, or an 
 
440 INDIAN TRUSTEE ACT. 
 
 APPDX. allegation that a trustee or the heir or devisee of a mortgagee is 
 
 out of the jurisdiction of the High Court or cannot be found, 
 
 or that it is uncertain which of several trustees, or which of 
 several devisees of a mortgagee, was the survivor, or whether 
 the last trustee, or the heir, or last surviving devisee of a mort- 
 gagee be living or dead, or on an allegation that any trustee or 
 mortgagee has died intestate without an heir, or has died and it 
 is not known who is his heir or devisee, then, in any of such cases, 
 the fact that the High Court has made an order upon such an 
 allegation shall be conclusive evidence of the matter so alleged 
 in any Court of civil judicature upon any question as to the 
 legal validity of the order : Provided always, that nothing 
 herein contained shall prevent the High Court directing a 
 reconveyance of any immoveable property conveyed or assigned 
 by any order under this Act, or a re-disposition of any contingent 
 right conveyed or disposed of by such order ; and it shall be 
 lawful for the said Court to direct any of the parties to any suit 
 concerning such property or contingent right to pay any costs 
 occasioned by the order under this Act when the same shall 
 appear to have been improperly obtained. 
 
 Trustee Act, 1850, B. 44. 
 
 XLV. It shall be lawful for the High Court to exercise the 
 
 _ , powers herein conferred for the purpose of 
 
 Trustee of charity. , , 
 
 vesting any immoveable property, stock, 
 
 Government securities, or thing in action in the trustee or 
 trustees of any charity or society over which charity or society 
 the High Court would have jurisdiction upon suit duly insti- 
 tuted (a), whether such trustee or trustees shall have been duly 
 appointed by any power contained in any deed or instrument, or 
 by the decree of the said Court, or by order made upon a petition 
 to the said Court. 
 
 Trustee Act, 1850, s. 45. See further, ante, pp. 366-367. 
 (a) See Seton on Decrees, 4th Ed., 565. 
 
 XL VI. Where any minor or person of unsound mind shall 
 Money of minors and b f entitled to any money payable in 
 persons of unsound discharge of any immoveable property, 
 mind to be paid into stock, Government securities, or thing 
 Court, in action conveyed or transferred under 
 
 this Act, it shall be lawful for the person by whom such money 
 is payable to pay the same into the Higli Court, in trust in any 
 cause then depending concerning such money, or if there shall 
 be no such cause, to the credit of such minor or person of 
 unsound mind, subject to the order or disposition of the said Court ; 
 and it shall be lawful for the said Court upon petition in a sum- 
 ' mary way to order any money so paid to be invested in Govern- 
 
.ACT XXVII OF 1866. 441 
 
 ment securities and to order payment or distribution thereof, or APPDX. 
 
 payment of the dividends or interest thereof as to the said Court 
 
 shall seem reasonable. 
 Trustee Act, 1850, s. 48. 
 
 XLVII. When in any suit commenced, or to be commenced, in 
 the High Court, it shall be made to appear 
 
 Court may make to t j ie Coijrt that diligent search and 
 decree in absence of a , , , c , 
 
 trustee enquiry have been made after any person 
 
 made a defendant, who is only a trustee, 
 
 to serve him with the process of the Court, and that he cannot 
 be found, it shall be lawful for the said Court to hear and deter- 
 mine such cause, and to make such absolute decree therein against 
 every person who shall appear to it to be only a trustee, and 
 not otherwise concerned in interest in the matter in question, in 
 such and the same manner as if such trustee had been duly 
 served with the process of the Court and had appeared at the 
 hearing of such cause : Provided always, that no such decree 
 shall bind, affect, or in anywise prejudice any person against 
 whom the same shall be made, without service of process upon 
 him as aforesaid, his heirs, executors, or administrators for or in 
 respect of any estate, right, or interest which such person shall 
 have at the time of making such decree for his own use or benefit, 
 or otherwise than as a trustee as aforesaid (a). 
 
 Trustee Act, 1850, s. 49. 
 
 O) In West head v. Sale, 6 W. R. (Eng.), 52, cited Lewin, 7th Ed., 890, 
 the Court directed the record and writ clerk to certify that the cause was 
 ready for hearing in the absence of a trustee who could not be found. 
 
 XLVIII. Every order to be made under this Act which shall 
 
 Orders made under have the effect of a conveyance of any 
 
 this Act to be charge- immoveable property or a transfer of any 
 
 able with the same such stock, Government securities, or 
 
 stamp-duty as deeds of tlling in action as can only be transferred 
 
 by stamped deed, or for the transfer of 
 
 which a stamp is necessary, shall be chargeable with the like 
 amount of stamp-duty as it would have been chargeable with if it 
 had been a deed executed, or a transfer made (a), by the person or 
 persons holding such property or entitled to such stock, Govern- 
 ment securities, or thing in action. Every such order shall be 
 duly stamped for denoting the payment of the said duty. 
 
 Trustee Extension Act. 1852, s. 13. 
 
 (a) See Act I of 1879 (The General Stamp Act), sched. i, arts., 21, 60. 
 
 XLIX. The High Court may order the costs and expenses 
 
 ^ -u -i fj a d relating to, the petitions, orders, 
 
 Costs may be paid out , , . 
 of the estate: directions, conveyances, and transfers to 
 
 be made in pursuance of this Act, or any 
 of them, to be paid and raised out of .or from the immoveable or 
 
 56 
 
442 INDIAN TRUSTEE ACT. 
 
 APPDX. moveable property, or the rents or produce thereof, in respect of 
 
 which the same respectively shall be made, or in such manner as 
 
 the said Court shall think proper (a). 
 
 Trustee Act, 1850. s. 51. 
 
 (u) The petition should not pray for costs " incidental to, or subsequent, 
 on," the application, as they give rise to uncertainty. lie Felloes Settle- 
 ment, 2 Jur., N. S.. 62. 
 
 The costs of appointing new trustees are paid out of the trust-fund. 
 He Fulham, 15 Jur., 69 ; Ex parte Davies, 16 Jur., 882 ; Re Fellow's Settle- 
 ment, 2 Jur., N. S., 62. 
 
 On an application for appointment of new trustees of two funds, the 
 costs will be paid out of the f unda ratably. Re Grant's Trusts, 2 J. and 
 H., 7G4. 
 
 In Ex parte Davies, 16 Jur., 882. a new trustee was appointed in the 
 place of a sole trustee, deceased. The heir of the deceased trustee could 
 not be found, and, on petition, an order was made to vest the estate in 
 the new trustee, or that upon consent he might pay the costs of the pro- 
 ceedings, and that such costs, with interest at 4 per cent., might form a 
 charge on the inheritance. The Court, on appointing new trustees of 
 real estate, has power under the section to direct the costs to be raised 
 by a mortgage to be settled by the Court. Re Crabtree, V. C. WOOD, llth 
 Jan., 18C6 ; see Lewin, 7th Ed., 891. Where an order is made for vesting 
 estate in property sold in lots under the order of the Court, the costs 
 will be paid by the vendors out of the purchase-money of each lot and 
 not out of the fund in Court generally. Ayles v. Cox, 17 Beav., 584. 
 
 The Court has no jurisdiction to award costs adversely against third 
 parties cited to appear as respondents upon a petition to appoint new 
 trustees. Re Primrose, 23 Beav., 590. 
 
 L. Upon any petition being presented under this Act to the 
 
 High Court concerning a person of un- 
 Enquiry concerning SQUnd mind j t ghall bg j awful f th 
 
 person of unsound ., n , , ,. . 
 
 min(1> said Court to make an order directing an 
 
 enquiry whether such person is or is not 
 
 of unsound mind, and incapable of managing himself and his 
 affairs. Such order shall have the same effect as the like order 
 made under section 1 of Act XXXIV of 1858 (to regulate proceed- 
 ings in Lunacy in the Courts of Judicature established by Royal 
 Charter), and the enquiry directed to be made shall be made in all 
 respects in the manner declared and prescribed for making an 
 enquiry under the last-mentioned Act. The High Court may 
 postpone making any order upon the petition presented as afore- 
 said, until any enquiry so directed to be made shall have beea 
 finally concluded. 
 Trustee Act, 1850, s. 52. 
 
 LI. Upon any petition under this Act being presented to the 
 
 High Court, it shall be lawful for the said 
 Suit may be directed. ^ , . , 
 
 Court to postpone making any order upon 
 
 such petition, until the right of the petitioner shall have been 
 declared in a suit duly instituted for that purpose (a). 
 
 Trustee Act, 1850, a. 53. 
 
 (a) See Me Collinson, 3 D. M. G., 409 ; Re Burt, 9 Hare, 289. 
 
ACT xxvm OF 1866. 443 
 
 LII. Every order made, or purporting to be made, under this APPDX. 
 
 Act by the High Court shall be a complete 
 
 Indemnity to all per- indemnity to all persons whatsoever for 
 
 sons obeying' orders , j ., , ., 
 
 passed under this Act. an y act done Pursuant thereto; and it 
 
 shall not be necessary for such persons to 
 
 enquire concerning the propriety of such order, or whether the 
 High Court has jurisdiction to make the same. 
 Trustee Extension Act, 1852, 8. 7. 
 
 Orders under the Act Llll. Any order made by the High 
 to be executed as, and Court under this Act shall have the same 
 have the effect of, effect, and be executed in the same manner, 
 decrees - as a decree. 
 
 LIV. This Act may be cited as "The 
 Indian Trustee Act, 1866." 
 
 THE TRUSTEES' AND MORTGAGEES' POWERS 
 ACT, 1866. 
 
 ACT XXVIII OF 1866. 
 
 (Received the assent of the Governor-General in Council on the 
 24th October, 1866.) 
 
 An Act to give Trustees, Mortgagees, and others, in cases to ivhich 
 English laiu is applicable, certain powers now commonly inserted 
 in settlements, mortgages, and wills, and to amend the law of 
 Property and relieve Trustees (a). 
 
 () This Act applies to the whole of British India, except the Scheduled 
 Districts Act XV of 1874. Sections 2, 3. 4. 5, 32. 33, 34, 35, 36, and 37 
 have been repealed in Madras, the Xorth-West Provinces, and the Panjab, 
 and in the territories administered by the Chief Commissioners of Oudh, 
 the Central Provinces. Coorg. and Assam, by Act II of 1882. The Act is 
 founded on the English Statutes 22 & 23 Viet., c. 35 (The Trustees Relief 
 Amendment Act) and 23 & 24 Viet., c. 145 (The Trustees' and Mortgagees' 
 Act). 
 
 WHEREAS it is expedient that, in cases to which English law 
 is applicable (a), certain powers and provi- 
 sions usually inserted in settlements, mort- 
 gages, wills, and other instruments should be made incident to 
 the estates of the persons interested, so as to dispense with the 
 necessity of inserting the same in terms in every such instrument, 
 and that in such cases trustees should be relieved ; It is enacted 
 as follows: 
 
 I. In the construction of this Act, 
 unless there be something repugnant iiv 
 
 the subject or context 
 
444 TRUSTEES' AND MORTGAGEES' POWERS ACT. 
 
 APPDX. ' Immoveable property ' shall include land, any benefit to arise 
 
 "~~~ out of land, and things attached to the 
 
 ^Immoveable pro earth or p ermanen tly fastened to anything 
 
 which is attached to the earth : 
 
 ' Mortgage ' shall be taken to include every instrument by 
 
 1 M rto- <r ' virtue whereof immoveable property is in 
 
 any manner conveyed, pledged, or charged 
 
 as security for the repayment of money or money's worth lent, 
 and to be reconveyed or released on satisfaction of the debt : 
 ' Mortgagor ' shall be taken to include every person by whom 
 
 1 Mortgagor.' an J suc . h conve J an ce, pledge, or charge as 
 
 aforesaid shall be made : 
 
 'Mortgagee' shall be taken to include every person to whom 
 M rfr ' or * n wnose favour any such conveyance, 
 
 pledge, or charge as aforesaid is made or 
 
 transferred ; and 
 
 ' High Court ' means any Court established, or to be established 
 'H' h C urt' under Statute 24 and 25 Viet., c. 104, and 
 
 includes the Chief Court of the Punjab, 
 
 and the Supreme Court of Judicature of the Settlements of Prince 
 of Wales's Island, Singapore, and Malacca. 
 (0) See as to the meaning of these words, ante, p. 15. 
 
 II. In all cases where, by any will, deed, or other instrument 
 
 of settlement, it is expressly declared that 
 
 Trustees empowered trustees or other persons therein named 
 to sell may sell in lots, or indicated shall have a power of sale (a), 
 and either by public .,, ,, , 
 
 auction or private con- eituer generally or in any particular event, 
 tract. over any immoveable property named or 
 
 referred to in, or from time to time subject 
 
 to, the nses or trusts of such will, deed, or other instrument, it 
 shall be lawful for such trustees or other persons, whether such 
 property be vested in them or not, to exercise such power of sale 
 by selling such property either together or in lots, and either by 
 public auction or private contract, and either at one time or at 
 several times. 
 
 23 & 24 Viet., c. H5, s. 1. See further, ante, p. 223. Partially repealed, 
 see ante, p. 443. 
 
 (a) These sections of the Act strictly apply to those cases only where 
 there is a power of sale ; but it is probable that a trust for sale would be 
 within the Act. 3 Dav. Convey., 565 n (w). 
 
 III. It shall be lawful for the persons making any such sale 
 
 Sale may be made to iusert an 7 snch 8 P ecial or ofcher stipula- 
 nnder special conditions tions, either as to title or evidence of title, 
 and trustees may buy or otherwise, in any conditions of sale, or 
 i n - contract for sale, as they shall think fit; 
 
 and also to buy in the property or any part thereof at any sale by 
 auction, and to rescind or vary any contract for sale, and to re-sell 
 
ACT xxviii OF 1866. 445 
 
 the property which shall be so bought in, or as to which the con- APPDX. 
 
 tract shall be so rescinded, without being responsible for any loss 
 
 which may be occasioned thereby ; and no purchaser under any 
 such sale shall be bound to enquire whether the persons making 
 the same may or may not have in contemplation any particular 
 re-investment of the purchase-money in the purchase of any 
 other property or otherwise. 
 
 23 & 24 Viet., c. 145, a. 2, ante, p. 225. Partially repealed, see ante, 
 p. 443. 
 
 IV. For the purpose of completing any such sale as aforesaid, 
 
 the persons empowered to sell as aforesaid 
 Trustees exercising $^\\ ], ave f u ]i power to convey or other- 
 
 wise dispose of the property in question 
 in such manner as may be necessary. 
 
 23 & 24 Viet , c. 145, s. 3, ante, p. 225. Partially repealed, see ante, 
 p. 443. 
 
 V. The money so received upon any such sale as aforesaid 
 
 . . shall be laid out in the manner indicated 
 
 BaltrbeTid^tT - that behalf in the will, deed, or instru- 
 
 the manner indicat- ment containing the power of sale ; and 
 
 ed in the will, &c., and until the money to be received upon any 
 
 until then to be invest- sa i e as aforesaid shall be so disposed of, 
 
 curitL GOVemment Se ~ the same sha11 be invested at interest in 
 Government securities for the benefit of 
 
 such persons as would be entitled to the benefit of the money, and 
 the interest and profits thereof in case such money were then 
 actually laid out as aforesaid : Provided that, if the will, deed, or 
 instrument shall contain no such indication, the persons empower- 
 ed to sell as aforesaid shall invest the money so received upon 
 any such sale in their names upon Government securities in India, 
 and the interest of such securities shall be paid and applied to 
 such person or persons for such purposes and in such manner as 
 the rents and profits of the property sold as aforesaid would have 
 been payable or applicable in case such sale had not been made. 
 
 23 & 24 Viet., c. 145, ss. 4, 7, ante, p. 164. Partially repealed, see ante, 
 p. 443. 
 
 VI. Where any principal money is secured or charged by deed 
 
 on any immoveable property, or on any 
 
 t0 interest therein, the person to whom such 
 
 i 11 / i i i 11 
 
 money shall for the time being be payable, 
 
 his executors, administrators, and assigns, shall, at any time after 
 the expiration of one year from the time when such principal 
 money shall have become payable, according to the terms of the 
 deed, or after any interest on such principal money shall have 
 been in arrear for six months, or after any omission to pay any 
 premium or any insurance which by the terms of the deed ought 
 to be paid by the person entitled to the property subject to the 
 
446 TRUSTEES' AND MORTGAGEES' POWERS ACT. 
 
 APPDX. charge, have the following powers to the same extent (but no more) 
 
 as if they had been in terms conferred by the person creating the 
 
 charge, namely : 
 
 1st. A power to sell or concur with any other person in sell- 
 ing the whole or any part of the property by public auction or 
 private contract, subject to any reasonable conditions he may 
 think fit to make, and to rescind or vary contracts for sale, or buy 
 in and re-sell the property from time to time in like manner. 
 
 2nd. A power to appoint, or obtain the appointment of, a 
 receiver of the rents and profits of the whole or any part of the 
 property in manner hereinafter mentioned. 
 
 23 & 24 Viet., c. 145,s. 11. 
 
 VII. Receipts for purchase-money given by the person or per- 
 
 sons exercising the power of sale hereby 
 Receipt for purchase- con f erre j s h a li be sufficient discharges to 
 
 money sumcient dis- ,, , , , ,, ' , . 
 
 charges. tlie purchasers, who shall not be bound to 
 
 see to the application of such purchase- 
 money. 
 
 23 & 24 Viet., c. 145.8. 12. 
 
 VIII. No such sale as last aforesaid shall be made, until after 
 
 , T , . . , , . six months' notice in writing given to the 
 
 ISotice is to be given 
 
 before sale; but piir- person, or one of the persons, entitled to 
 chaser relieved from in- the property subject to the charge, or 
 quiry as to circumstan- affixed on some conspicuous part of such 
 cesof sale. property, but when a sale has been effect- 
 
 ed in professed exercise of the powers hereby conferred, the title 
 of the purchaser shall not be liable to be impeached on the 
 ground that no case had arisen to authorize the exercise of such 
 power, or that no such notice as aforesaid had been given ; but 
 any person damnified by any such unauthorized exercise of such 
 power, shall have his remedy in damages against the person or 
 persons selling. 
 
 23 & 24 Viet., c. 145, s. 13. 
 
 IX. The money arising by any sale effected as aforesaid shall 
 
 be applied by the person receiving the 
 
 Application of pur- follows : First, in payment of 
 
 chase-money. . ., f. J , 
 
 all the expenses incident to the sale or 
 
 incurred in any attempted sale ; secondly, in discharge of all 
 interest and costs then due in respect of the charge in consequence 
 whereof the sale was made ; and thirdly, in discharge of all the 
 principal moneys then due in respect of such charge ; and tbe 
 residue of such money shall be paid to the person entitled to the 
 property subject to the charge, his executors, administrators or 
 assigns, as the case may be. 
 23 & 24 Viet., c. 145, s. 14. 
 
ACT xxvin OF 1866. 447 
 
 The person exercising the power of sale hereby conferred APPDX. 
 
 shall have power by deed to convey or 
 
 the a8S 'g n to > and vest in the purchaser, the 
 
 property sold, for all the estate and 
 interest therein which the person who created the charge had power 
 to dispose of: Provided that nothing herein contained shall be 
 construed to authorize the mortgagee of a term of years to sell 
 and convey the fee-simple of the property comprised therein in 
 cases where the mortgagor could have disposed of such fee-simple 
 at the date of the mortgage. 
 
 23 & 24 Viet, c. 145, 8. 15. 
 
 Where leaseholds are mortgaged by demise, the mortgagee can, under 
 this section, convey the reversion left in the mortgagor to a purchaser. 
 Hiatt v. Hillman, 19 W. R. (Eng.), 694 ; Shelf. R. P. Stat., 8th Ed., 736. 
 
 XI. At any time after the power of sale hereby conferred 
 
 shall have become exercisable, the person 
 Owner of charge may entitled to exercise the same shall be en- 
 
 conVeTanct of'leTui titled t0 demand and reCOVer fr m the 
 
 cuuvej tiu^c ui. xcgai . -.i i . .1 i 
 
 estate. person entitled to the property, subject to 
 
 the charge, all the deeds and documents 
 
 in his possession or power relating to the same property, or to 
 the title thereto, which he would have been entitled to demand 
 and recover if the same property had been conveyed, appointed 
 or surrendered to and then were vested in him for all the estate 
 and interest which the person creating the charge had power to 
 dispose of ; and where the legal estate shall be outstanding in a 
 trustee, the person entitled to a charge created by a person equit- 
 ably entitled, or any purchaser from such person, shall be 
 entitled to call for a conveyance of the legal estate to the same 
 extent as the person creating the charge could have called for 
 such a conveyance if the charge had not been made. 
 23 & 24 Viet., c. 145, s. 16. 
 
 XII. Any person entitled to appoint, or obtain the appoint- 
 
 ment of, a receiver as aforesaid, may, from 
 ce've** " time to time, if any person or persons has 
 
 or have been named in the deed of charge 
 
 for that purpose, appoint such person, or any one of such persons, 
 to be receiver, or if no person be so named, then may, by writing 
 delivered to the person or any one of the persons entitled to the 
 property subject to the charge, or affixed on some conspicuous 
 part of the property, require such last-mentioned person or per- 
 sons to appoint a fit and proper person as receiver, and if no 
 such appointment be made within ten days after such requisition, 
 then may in writing appoint any person he may think fit. No 
 person shall be ineligible for the office of receiver merely because 
 he is an officer of the High Court. 
 23 & 24 Viet., c. 145, s. 17. 
 
448 TRUSTEES' AND MORTGAGEES' POWERS ACT. 
 
 APPDX. A receiver who has been appointed under the ordinary power for that 
 __ purpose in a deed of mortgage drawn according to the English forma 
 (Jeffreys v. Dicfaon, L. R., 1 Chan., 190), or under this Act, is in possession 
 as the agent of the mortgagor. See s. 13, post. 
 
 XIII. Every receiver appointed as aforesaid shall be deemed 
 
 to be the agent of the person entitled to 
 
 Receiver deemed to the property subject to the charge, who 
 be the agent of the , ,, , r i i " -i i / i 
 
 mortgagor shall be solely responsible for his acts or 
 
 defaults, unless otherwise provided for in 
 the charge. 
 
 23 & 24 Viet., c. 145, s. 18. 
 
 XIV. Every receiver appointed as aforesaid shall have power 
 
 to demand and recover and give effectual 
 Powers of receiver. , ,. n ,\ , 
 
 receipts for all the rents, issues, and pro- 
 fits of the property of which he is appointed receiver, by suit, 
 distress or otherwise, in the name either of the person entitled 
 to the property subject to the charge, or of the person entitled 
 to the money secured by the charge, to the full extent of the 
 estate or interest which the person who created the charge had 
 power to dispose of. 
 
 23 & 24 Viet., o. 145, s. 19. 
 
 XV. Every receiver appointed as aforesaid may be removed 
 
 by the like authority, or on the like re- 
 Receiver may be re- qu i sition as before provided with respect 
 moved. . . , . r ,, , r 
 
 to the original appointment of a receiver, 
 
 and new receivers may be appointed from time to time. 
 23 & 24 Viet., c. 145, s. 20. 
 
 XVI. Every receiver appointed as aforesaid shall be entitled 
 Receiver to receive to retain out of any money received by 
 
 commission not exceed- him, in lieu of all costs, charges, and ex- 
 ing five per cent. penses whatsover, such a commission not 
 exceeding five per centum on the gross amount of all money receiv- 
 ed as shall be specified in his appointment, and if no amount shall 
 be so specified, then five per centum on such gross amount. 
 
 23 & 24 Viet., c. 145, s. 21. 
 
 XVII. Every receiver appointed as aforesaid shall, if so 
 
 directed in writing by the person entitled 
 
 in8 * the mone y 8ecured b ? tbe char e > 
 
 insure and keep insured from loss or dam- 
 age by fire, out of the money received by him, the whole or any 
 part of the property included in the charge which is in its uature 
 insurable. 
 
 23 & 24 Viet., c. 145, s. 22. 
 
ACT xxvni OF 1866. 449 
 
 XVIII. Every receiver appointed as aforesaid shall pay and APPDX. 
 
 apply all the money received by him in 
 
 re4?vedbymm f m ney the firsfc P lace in discharge of Govern- 
 ment revenue and of all taxes, rates, and 
 
 assessments whatsoever, and in payment of his commission as 
 aforesaid, and of the premiums on the insurances if any ; and in 
 the next place in payment of all the interest accruing due in 
 respect of any principal money then charged on the property 
 over which he is receiver, or on any part thereof ; and subject 
 as aforesaid shall pay all the residue of such money to the 
 person for the time being entitled to the property subject to the 
 charge, his executors, administrators, or assigns. 
 
 23 & 24 Viet., c. 145, s. 23. 
 
 XIX. The powers and provisions contained in ss. 6 to 18 
 This part to relate to f ^' ls Act, both inclusive, relate only to 
 
 charges by way of mortgages or charges made to secure 
 mortgage only. money advanced or to be advanced by way 
 
 of loan, or to secure an existing or future debt. 
 23 & 24 Viet., c. 145, s. 24. 
 
 XX. Where any license to do any act, which without such 
 
 license would create a forfeiture, or give 
 Effect of restriction . , , j- A - 
 
 on license to alien. a right to re-enter, under a condition or 
 
 power reserved in any lease heretofore 
 
 granted, or to be hereinafter granted, shall, at any time after this 
 Act comes into operation, be given to any lessee or his assigns, 
 every such license shall, unless otherwise expressed, extend 
 only to the permission actually given, or to any specific breach 
 of any proviso or covenant made or to be made, or to the actual 
 assignment, underlease, or other matter thereby specifically 
 authorized to be done, but not so as to prevent any proceeding 
 for any subsequent breach (unless otherwise specified in such 
 license) ; and all rights under covenants and powers of forfeiture 
 and re-entry in the lease contained shall remain in full force and 
 shall be available as against any subsequent breach of covenant 
 or condition, assignment, underlease, or other matter not specifi- 
 cally authorized or made dispunishable by such license, in the 
 same manner as if no such license had been given ; and the con- 
 dition or right of re-entry shall be and remain in all respects as 
 if such license had not been given, except in respect of the par- 
 ticular matter authorized to be done. 
 
 22 & 23 Viet., c. 35, s. 1. 
 
 A covenant not to assign or underlet without the license of the les- 
 sor is a fair and usual covenant (Morgan v. Slaughter, 1 Esp., 8 ; Iblking- 
 ham v. Croft, 3 Anst.. 700); but it is not a " common and usual " one. 
 Henderson v. Hay, 3 Bro. C. C.,632 ; Church v. Brown 15 Ves., 258; Broivnev. 
 Raban, ibid. 528; Buckland v. Papillon. L. R.. 2 Ch., 67. Such a cove- 
 nant runs with the land ( Williams v. JSarle, L. K.. 3 Q. B., 739 ; West v. 
 
 57 
 
450 TRUSTEES' AND MORTGAGEES' POWERS ACT. 
 
 APPDX Dvbb. L. R., 4 Q B., 634 ; 5 Q B.. 460) ; but not with the equitable title 
 
 ' of a eextid ipie trust. West v. Dobb, L. B, . 4 Q. B . 034 ; 5 Q. B., 460. 
 
 As a general rule, a Court of Equity will not relieve against a forfei- 
 ture for alienationwitbout license. Hill v. Barclay, 18 Ves., 56. If, how- 
 ever, when a written license is necessary the lessor gives a parol license 
 in order to ensnare his lessee, the Court will relieve on the ground of 
 fraud. Richardson v. Evans, 3 Mad., 218. See further, "VVoodf., L. & T. 
 10th Edn., 548. 
 
 XXI. Where in any lease heretofore granted, or to be here- 
 
 after granted, there is or shall be a power 
 
 Restricted operation Qr condition of re - e ntry on assigning or 
 
 of partial licenses. , , , , . * -c j 
 
 underletting, or doing any other specified 
 
 act without license, and a license, at any time after the passing of 
 this Act, shall be given to one of several lessees or co-owners to 
 assign or underlet his share or interest, or to do any other act 
 prohibited to be done without license ; or shall be given to any 
 lessee or owner, or any one of several lessees or owners, to assign 
 or underlet part only of the property, or to do any other 
 such act as aforesaid in respect of part only of such property, 
 such license shall not operate to destroy or extinguish the right 
 of re-entry in case of any breach of the covenant or condition 
 by the co-lessee or co-lessees, or owner or owners, of the other 
 shares or interests in the property, or by the lessee or owner of 
 the rest of the property, as the case may be, over or in respect of 
 such shares or interests or remaining property ; but such right 
 of re-entry shall remain in full force over or in respect of the 
 shares or interests or property not the subject of such license. 
 22 & 23 Viet., c. 35, s. 2. 
 
 XXII. Where the reversion upon a lease is severed, and the 
 
 rent or other reservation is legally appor- 
 
 Appprtionnient of tione<1 the ass i gnee O f each part of the 
 conditions or re-entry in : . , r . . 
 
 certain cases. reversion shall, in respect ot the apportion- 
 
 ed rent or other reservation allotted or 
 
 belonging to him, have and be entitled to the benefit of all condi- 
 tions or powers of re-entry for nonpayment of the original rent or 
 other reservation, in like manner as if such conditions or powers 
 had been reserved to him as incident to his part of the reversion 
 in respect of the apportioned rent or other reservation allotted or 
 belonging to him. 
 
 22 & 23 Viet., c. 35, s. 3. 
 
 See Woodf., L. and T., 10th Ed., 550 ; Shelf., R. P., 8th Ed., 710. 
 
 Rent-Charges. 
 
 XXIII. The release from a rent-charge of part of the im- 
 
 moveable property charged therewith shall 
 
 Release of part of land not extinguish the whole rent-charge, but 
 
 Sguishment * " sha operate only to bar the right to re- 
 
 cover any part of the rent-charge out of 
 
 the property released, without prejudice, nevertheless, to the rights 
 
ACT xxvm OF 186G. 451 
 
 of all persons interested in the property remaining unreleased, APPDX. 
 and not concurring in or confirming the release. 
 
 22 & 23 Viet., c. 35. B. 10. 
 
 "A person having a rent-charge, by releasing all his right in part of the 
 land extinguishes the whole rent, because it issues out of every part, and 
 cannot be apportioned. But a person having a rent-charge may release 
 part of it to the tenant of the land, and reserve part, for the srrantee 
 deals only with that which is his own. namely, the rent, and not with the 
 land. So, if the lessee surrender part'of the land to the lessor, the rent 
 services will be apportioned. 
 
 " If a man having a rent-charge issuing out of lands, purchases any 
 part of them, the rent-charge is extinct in the whole, because the rent 
 is entire and against ccmmon right and issuing out of every part of the 
 land, although it is otherwise where part of the lands out of which the 
 rent issues descends on the grantee. If the grantee of a rent-charge 
 purchases part of the land, and the grantor by his deed reciting such 
 purchase, grants that he may distrain for such rent-charge in the residue 
 of the land, this amounts to a new grant. A rent-charge is extinguished 
 by a devise to the grantee of part of the land out of which the rent- 
 charge issues notwithstanding the devise is expressly made over and 
 above the rent-charge." Shelf. R P., 8th Ed., 714. See as to apportion- 
 ment of rent-charges, Mills v. Cobb, L. R , 2 C. P., 95 ; Ley v. Ley. 
 L. R., 6 Eq., 174. 
 
 Powers. 
 
 XXIV. A deed hereafter executed in the presence of, and 
 
 attested by, two or more witnesses in the 
 
 powers! exeCUtl U f manner in which deeds are ordinarily exe- 
 cuted and attested, shall, so far as respects 
 
 the execution and attestation thereof, be a valid execution of a 
 power of appointment by deed or by any instrument in writing 
 not testamentary, notwithstanding it shall have been expressly 
 required that a deed or instrument in writing made in exercise of 
 sucli power should be executed or attested with some additional 
 or other form of execution or attestation or solemnity : Provided 
 always, that this provision shall not operate to defeat any direc- 
 tion in the instrument creating the power, that the consent of 
 any particular person shall be necessary to a valid execution, or 
 that any act shall be performed in order to give validity to any 
 appointment, having no relation to the mode of executing and 
 attesting the instrument : and nothing herein contained shall 
 prevent the donee of a power from executing it conformably to the 
 power by writing or otherwise than by an instrument executed 
 and attested as an ordinary deed, and to any such execution of a 
 power this provision shall not extend. 
 22 & 23 Viet., c. 35, s. 12. 
 
 XXV. Where by any will, which shall come into operation 
 
 after the passing of this Act, the testator 
 Legatee in trust may i_ n v i j i. LI 
 
 raise money by sale not- sha11 have charged his immoveable pro- 
 witlistanding want of perty or any specific portion thereof with 
 express power in the the payment of his debts, or with the pay- 
 will> ment of any legacy or other specific sum of 
 
452 TRUSTEES' AND MORTGAGEES' POWERS ACT. 
 
 APPDX. money, and shall have bequeathed the property so charged to any 
 
 trustee or trustees for the whole of his estate or interest therein, 
 
 and shall not have made any express provision for the raising of 
 snch debt, legacy, or sum of money out of such property, it shall 
 be lawful for the said legatee or legatees in trust, notwithstanding 
 any trusts actually declared by the testator, to raise such debts, 
 legacy, or money as aforesaid by sale and absolute disposition, by 
 public auction or private contract, of the said property or any 
 part thereof, or by a mortgage of the same, or partly in one mode 
 and partly in the other ; and any deed or deeds of mortgage so 
 executed may reserve such rate of interest and fix such period or 
 periods of repayment as the person or persons executing the same 
 shall think proper. 
 
 22 & 23 Viet., c. 35, s. 14. See Shelf. R. P., 8th Ed., 484. 
 
 XXVI. The powers conferred by the last preceding section 
 
 shall extend to all and every person or 
 
 Powers given by last persons in. whom the property bequeathed 
 
 section extended to sur- . r , , , , ,. , , , L i , * 
 
 vivors, legatees, &o. m trnsfc sha11 . for the tirae bein S be ves . ted 
 
 by survivorship, or under the laws relating 
 
 to intestate or testamentary succession, or to any person or 
 persons who may be appointed under any power in the will, or 
 by the High Court, to succeed to the trusteeship vested in such 
 legatee or legatees in trust as aforesaid. 
 
 22 & 23 Viet., c. 35, s. 15. 
 
 XXVII. If any testator who shall have created such a charge 
 
 as is described in section 25 of this Act 
 
 Executors to have s } ia n no t }, ave bequeathed the property 
 power of raising money, r i, nro . pf ] <, nf nrps <ii,] in cnrlj terms as thifc 
 &c . where there is no 
 sufficient bequest. nls whole estate and interest therein shall 
 
 become vested in any trustee or trustees, 
 
 the executor or executors (if any) for the time being named in 
 such will shall have the same or the like power of raising the 
 said moneys as is hereinbefore vested in the legatee or legatees 
 in trust of the said property, and such power shall from time to 
 time devolve in, and become vested in, the person or persons (if 
 any) in whom the executorship shall for the time being be 
 vested. 
 
 22 & 23 Viet., c. 35, s. 16. 
 
 XXVIII. Purchasers or mortgagees shall not be bound to 
 
 enquire whether the powers conferred by 
 
 Purchasers, &c., not sections 25 26, and 27 of this Act, or any 
 bound to enquire as to . ,, . ' n ', , , 
 
 powers. * them, shall have been duly and correct- 
 
 ly exercised by the person or persons 
 acting in virtue thereof. 
 22 & 23 Viet., c. 35, 8. 17. 
 
ACT xxvin OF 1866. 453 
 
 Inheritance. 
 
 XXIX. In cases of intestacies occurring before the first day AFPPX> 
 
 of January, 1866, where there shall be 
 tr ^ s d cer a total failure of heirs of the purchaser, 
 
 or where any immoveable property shall 
 
 be descendible as if an ancestor had been the purchaser thereof, 
 and there shall be a total failure of the heirs of such ancestor, 
 then and in every such case the property shall descend, and the 
 descent shall thenceforth be traced from the person last entitled 
 to the property as if he had been the purchaser thereof. This 
 section shall be read as part of Act No. XXX of 1839 (for the 
 amendment of the Law of Inheritance). 
 
 22 & 23 Viet., c. 35, s. 19. 
 
 Assignment of Movedbles and Terms for Tears. 
 
 XXX. Any person shall have power to assign moveable pro- 
 
 . . perty now by law assignable, terms for 
 
 Assignment to self <? n 
 
 and others. years ot immoveable property, and estates 
 
 by elegit, directly to himself and another 
 
 person or other persons or corporation, by the like means as 
 he might assign the same to another. 
 
 22 & 23 Viet., c. 235, s. 21. 
 
 At common law. a man could not assign personalty to himself and 
 another, a rule which occasioned inconvenience in the transfer of trust- 
 property. By this section the continuing and retiring trustees can 
 assign directly to the continuing and new trustees. See ante, p. 327, as 
 to appointment of new trustees. 
 
 Purchasers. 
 
 XXXI. The bond fide payment to, and the receipt of, any 
 
 person to whom any purchase or mortgage- 
 Not to be bound to money shall be payable upon any express 
 
 SGG tO ufl.6 SppllCcltlOU i i j in /v j 1 1 i i 
 
 of purchase-money, &c. or implied trust shall effectually discharge 
 the person paying the same from seeing to 
 
 the application thereof, or being answerable for the misappli- 
 cation thereof. 
 
 22 & 23 Viet., c. 35, s. 23. 
 
 See Lewin. 7th Ed., pp. 269, 270, 409, 420, & 425 ; Shelf. R. P., 8th 
 Ed., 488 ; and ante, pp. 171, 228. 
 
 Investment of Trust-Funds. 
 
 XXXII. Trustees having trust-money in their hands, which 
 
 it is their duty to invest at interest, shall 
 
 On what securities be at i iberty at their discretion, to invest 
 trust-funds may be m- ., . /-, 
 
 vested, the same in any Government securities, 
 
 and such trustees shall also be at liberty, 
 
454 TRUSTEES' AND MORTGAGEES' POWERS ACT. 
 
 APPDX. at their discretion, to call in any trust-funds invested in any 
 
 other securities than as aforesaid, and to invest the same on any 
 
 such securities as aforesaid, and also from time to time, at their 
 discretion, to vary any such investments as aforesaid for others 
 of the same nature : Provided always, that no such original 
 investment as aforesaid, and no such change of investment as 
 aforesaid, shall be made where there is a person under no dis- 
 ability entitled in possession to receive the income of the trust- 
 fund for his life, or for a term of years determinable with his 
 life, or for any greater estate, without the consent in writing of 
 such person. 
 
 23 & 24 Viet., c. 145, a. 25. See ante, pp. 164, 226. Partially repealed, 
 ante, p. 443. 
 
 Trustees and Executors. 
 
 XXXIII. In all cases where any property is held by 
 
 trustees in trust for a minor, either ab- 
 
 Trustees may apply so lutely or contingently on his attaining 
 income of property _ o ma j ority or on the occurrence of any 
 minors. &c., for tneir > " . ,,,. .. . . 
 
 maintenance. event previously to Ins attaining majority, 
 
 it shall be lawful for such trustees, at 
 
 their sole discretion, to pay to the guardians (if any) of such 
 minor, or otherwise to apply for or towards the maintenance or 
 education of such minor, the whole or any part of the income 
 to which such minor may be entitled in respect of such property, 
 whether there be any other fund applicable to the same purpose, 
 or any other person bound by law to provide such maintenance 
 or education or not ; and such trustees shall accumulate all the 
 residue of such income by way of compound interest, by invest- 
 ing the same and the resulting income thereof from time to 
 time in proper securities, for the benefit of the person who shall 
 ultimately become entitled to the property from which such 
 accumulations shall have arisen : Provided always, that it shall 
 be lawful for such trustees at any time, if it shall appear to 
 them expedient, to apply the whole or any part of such accumu- 
 lations as if the same were part of the income arising in the 
 then current year. 
 
 23 & 24 Viet., c. 145, s. 26. See ante, p. 227. Partially repealed, 
 ante, p. 443. 
 
 XXXIV. Whenever any trustee, either original or sub- 
 
 stituted, and whether appointed by any 
 
 f r new H ' gh C Urt r otherwise > sha11 die < or be 
 trastera,on death,"** six months absent from British India, or 
 desire to be discharged from, or refuse, 
 
 or become unfit or incapable to act in the trusts or powers in him 
 reposed, before the same shall have been fully discharged and 
 
ACT XXVIII OF 1866. 455 
 
 performed, it shall be lawful for the person or persons nominated APPDX. 
 for that purpose by the deed, will, or other instrument creating 
 the trust (if any), or if there be no such person, or no such 
 person able and willing to act, then for the surviving or con- 
 tinuing trustees or trustee for the time being, or the acting 
 executors or executor, or administrators or administrator of the 
 last surviving and continuing trustee, or for the retiring 
 trustees if they shall all retire simultaneously, or for the last 
 retiring trustee, or where there are two or more classes of 
 trustees of the instrument creating the trust, then for the sur- 
 viving or continuing trustees or trustee of the class in which 
 any such vacancy or disqualification shall occur (and for this 
 purpose any refusing or retiring trustee shall, if willing to act 
 in the execution of the power, be considered a continuing 
 trustee) by writing to appoint any other person or persons to 
 be a trustee or trustees in the place of the trustee or trustees 
 so dying, or being absent from British India, or desiring to 
 be discharged, or refusing or becoming unfit or incapable to act 
 as aforesaid. So often as any new trustee or trustees shall be 
 so appointed as aforesaid, all the trust-property (if any) which 
 for the time being shall be vested in the surviving or continuing 
 trustees or trustee, or in the heirs, executors, or administrators 
 of any trustee, shall with all convenient speed be conveyed and 
 transferred, so that the same may be legally and effectually 
 vested in such new trustee or trustees, either solely or jointly 
 with the surviving or continuing trustees or trustee, as the 
 case may require; Every new trustee to be appointed as 
 aforesaid, as well before as after such conveyance or transfer as 
 aforesaid, and also every trustee appointed by any High Court 
 either before or after the passing of this Act, shall have the 
 same powers, authorities, and discretions, and shall in all respects 
 act as if he had been originally nominated a trustee by the 
 deed, will, or other instrument (if any) creating the trust. The 
 Official Trustee may, with his consent and by the order of the 
 High Court, be appointed under this section in any case in which 
 only one trustee is to be appointed, and such trustee is to be 
 the sole trustee. 
 
 23 & 24 Viet., c. 145, s. 72. See ante, p. 333. Partially repealed, ante, 
 p. 443. 
 
 This section does not take away the jurisdiction of the Court to in- 
 crease the original number of trustees. Viscountess D" Adhemar v. 
 Bertrand, 35 Beav., 19. 
 
 " Where an instrument contains an express power to appoint new 
 trustees in more restricted terms than the statutory powers, it seems 
 doubtful whether the latter is excluded. Re Jackson, 16 W. R. (Eng.), 
 572. Where a will contained an express power exercisable by the 
 surviving or continuing trustees, and, all the trustees having died, 
 an application was made to the Court to appoint new trustees, MALINS, 
 V. C., made the order, although it was opposed, on the ground that, under 
 
456 TRUSTEES' AND MORTGAGEES' POWERS ACT. 
 
 APPDX ^ n * 8 section, the executor of the surviving trustee was competent to 
 make the appointment. Ibid. But where a deed of separation contained 
 an express power, and, one of the trustees having died, the husband 
 applied that a trustee, whom he had himself selected, should be appointed 
 by the Court, Lord ROMILLY dismissed the petition with costs, on the 
 ground that, by this section, the power was conferred on the sur- 
 viving trustee." lie Soulby, 21 W. R. (Eng.), 256. See Shelf. E. P., 
 8th Ed., 740. 
 
 XXXV. The power of appointing new trustees herein- 
 Appointment of new before contained may be exercised in 
 
 trustee in place of cases where a trustee nominated in a 
 trustee predeceasing will has died in the lifetime of the 
 testator. testator. 
 
 23 & 24 Viet., c. 145, s. 28. Partially repealed, ante, p. 443. 
 
 XXXVI. The receipts of any trustees or trustee for any 
 
 money payable to them or him by 
 
 Trustees' receipts to th exercise of any trusts 
 
 be discharges. . ' . J . 
 
 or powers reposed or vested in them or 
 
 him, shall be sufficient discharges for the money therein ex- 
 pressed to be received, and shall effectually exonerate the 
 persons paying such money from seeing to the application 
 thereof, or from being answerable for any loss or misapplication 
 thereof. 
 
 23 & 24 Viet., c. 145, s. 29. See ante, p. 229. Partially repealed, 
 ante, p. 443. 
 
 XXXVII. Every deed, will, or other instrument creating 
 
 a trust, either expressly or by implica- 
 
 Every trust-instru- tion, shall, without prejudice to the 
 ment to be deemed to clauses actually contained therein, be 
 contain clauses for the j j , L i A u j 
 
 indemnity and reim- deemed to contain a clause in the words 
 bursement of the trus- or to the effect following, that is to say, 
 tees. " that the trustees or trustee for the 
 
 time being of the said deed, will, or other 
 
 instrument, shall be respectively chargeable only for such 
 moneys, stocks, funds, and securities as they shall respectively 
 actually receive, notwithstanding their respectively signing any 
 receipt for the sake of conformity, and shall be answerable 
 and accountable only for their own acts, receipts, neglects, or 
 defaults, and not for those of each other, nor for any banker, 
 broker, or other person with whom any trust-moneys or 
 securities may be deposited, nor for the insufficiency or 
 deficiency of any stocks, funds, or securities, nor for any 
 other loss, unless the same shall happen through their own 
 wilful default respectively ; and also that it shall be lawful 
 for the trustees or trustee for the time being of the said 
 deed, will, or other instrument, to reimburse themselves or 
 
ACT xxvin OF 18C6. 457 
 
 himself, or pay or discharge out of the trnst-premises all APPDX. 
 expenses incurred in or about the execution of the trusts 
 or powers of the said deed, will, or other instrument. 
 
 22 fc 23 Viet., c. 35, B. 31. See ante, p. 210. Partially repealed, 
 ante, p. 443. 
 
 XXXVIII. It shall be lawful for any executors to pay any 
 
 debts or claims upon any evidence that 
 Executors may com- they may think su ffi c j entj an( j t o accept 
 
 any composition, or any security for any 
 
 debts due to the deceased, and to allow any time for payment of 
 any such debts as they shall think fit, and also to compromise, 
 compound, or submit to arbitration all debts, accounts, claims, and 
 things whatsoever relating to the estate of the deceased, and 
 for any of the purposes aforesaid to enter into, give, and exe- 
 cute such agreements, instrument of composition, releases, and 
 other things as they shall think expedient, without being res- 
 ponsible for any loss to be occasioned thereby. 
 
 23 & 24 Viet., c. 145, B. 30. See ante, p. 222. 
 
 XXXIX. No trustee, executor, or administrator making any 
 
 payment, or doing any act bond fide under 
 
 or in pursuance of any power-of-attorney, 
 
 payment under power- \ ^ -j 
 
 of -attorney, not to be shall be liable for the moneys so paid, or 
 liable by reason of the act so done, by reason that the person 
 death of party giving W h g av e the power-of-attorney was dead 
 such power. at ^ IQ t j me Q f guc j 1 p avmen t; O r act, or 
 
 had done some act to avoid the power : Provided that the fact 
 of the death, or of the doing of such act as last aforesaid, at the 
 time of such payment or act bonafide done as aforesaid by such 
 trustee, executor, or administrator, was not known to him : Pro- 
 vided always, that nothing herein contained shall in any manner 
 affect or prejudice the right of any person entitled to the money 
 against the person to whom such payment shall have been made, 
 but that such person so entitled shall have the same remedy 
 against such person to whom such payment shall be made, as he 
 would have had against the trustee, executor, or administrator, 
 if the money had not been paid away under such power-of-attor- 
 ney. 
 
 22 & 23 Viet., c. 35, s. 26. 
 
 At common law, an act done under a power-of-attorney after the death 
 of the grantor is void, as the power is revoked by the death. Watson v. 
 King, 4 Camp.. 272. But in equity, such act is valid if done bond fide, 
 and without notice of the death. Bailey v. Collett, 18 Bear., 179. 
 
 See ante, p. 208. 
 
 58 
 
458 TRUSTEES' AND MORTGAGEES' POWERS ACT. 
 
 APPDX. XL. Where an executor or administrator liable as such to 
 
 the rents, covenants, or agreements con- 
 As to liability of exe- tained in anv lease or agreement for a 
 cutor or administrator , , / . , , ,, , ,. 
 
 in respect of rents, cove- lease granted or assigned, whether before 
 nants, or agreements, or after the passing of this Act, to the 
 testator or intestate whose estate is being 
 
 administered, shall have satisfied all such liabilities under the 
 said lease or agreement for a lease as may have accrued due, and 
 been claimed up to the time of the assignment hereinafter men- 
 tioned, and shall have set apart a sufficient fund to answer any 
 future claim that may be made in respect of any fixed and ascer- 
 tained sum covenanted or agreed by the lessee, to be laid out on 
 the property demised or agreed to be demised, although the 
 period for laying out the same may not have arrived, and shall 
 have assigned the lease or agreement for a lease to the pur- 
 chaser thereof, he shall be at liberty to distribute the residuary 
 estate of the deceased to and amongst the parties entitled thereto 
 respectively without appropriating any part, or any further part 
 (as the case may be), of the estate of the deceased to meet any 
 future liability under the said lease or agreement for a lease. 
 The executor or administrator so distributing the residuary estate 
 shall not, after having assigned the said lease or agreement for a 
 lease, and having, where necessary, set apart such sufficient fund 
 as aforesaid, be personally liable in respect of any subsequent 
 claim under the said lease or agreement for a lease. Nothing 
 herein contained shall prejudice the right of the lessor or those 
 claiming under him to follow the assets of the deceased into the 
 hands of the person or persons to or amongst whom the said 
 assets may have been distributed. 
 
 22 & 23 Viet., c. 35, s. 27. 
 
 This section protects an executor though he has not applied to the 
 Court. It is retrospective. Smith v. Smith, 1 Dr. and Sm., 384; Re Green, 
 2 De.G. F. and J., 121. 
 
 XLI. In like manner, "where an executor or administrator 
 liable as such to the rent, covenants, or 
 
 As to liability of exe- agreements contained in any conveyance on 
 enter, &c, in respect of chief rent Qr rent _ c ] iarge (whether any such 
 rents. &c., in convey- , ,. . \. 
 
 ance on rent-charge. rent be b 7 limitation of use, grant, or 
 reservation), or agreement for such con- 
 veyance, gran ted or assigned to, or made and entered into with, the 
 testator or intestate whose estate is being administered, shall have 
 satisfied all such liabilities under the said conveyance or agree- 
 ment for a conveyance, as may have accrued due and been claimed 
 up to the time of the conveyance hereinafter mentioned, and shall 
 have set apart a sufficient fund to answer any future claim that may 
 be made in respect of any fixed and ascertained sum covenanted 
 or agreed by the grantee, to be laid out on the property conveyed 
 or agreed to be conveyed, although the period for laying out the 
 
ACT xxviu OF 18G6. 459 
 
 same may not have arrived, and shall have conveyed snch pro- APPDI. 
 
 perty, or assigned the said agreement for such conveyance as 
 
 aforesaid, to a purchaser thereof, he shall be at liberty to distri- 
 bute the residuary estate of the deceased to and amongst the 
 parties entitled thereto, respectively, without appropriating 
 any part or any further part (as the case may be) of such estate 
 to meet any future liability under the said conveyance or agree- 
 ment for a conveyance. The executor or administrator so distri- 
 buting the residuary estate shall not, after having made or executed 
 such conveyance or assignment, and having, where necessary, set 
 apart such sufficient fund as aforesaid, be personally liable in respect 
 of any subsequent claim under the said conveyance or agreement 
 for conveyance. Nothing herein contained shall prejudice the 
 right of the grantor, or those claiming under him, to follow the 
 assets of the deceased into the hands of the person or persons 
 to or among whom the said assets may have been distributed. 
 22 & 23 Viet., c. 35, a. 28. 
 
 XLII. Where an executor or administrator shall have given 
 such or the like notices as, in the opinion 
 
 As to distribution of of the Court in which such executor or 
 the assets of testator administrator is sought to be charged, 
 or intestate after notice , , , , . , ., TT . , /-, 
 
 given by executor and would have been g lven . bv the Hl .? h Court 
 administrator in an administration-suit for creditors and 
 
 others to send in to the executor or ad- 
 ministrator their claims against the estate of the testator or 
 intestate, such executor or administrator shall, at the expiration 
 of the time named in the said notices, or the last of the said 
 notices, for sending in such claims, be at liberty to distribute the 
 assets of the testator or intestate, or any part thereof, amongst 
 the parties entitled thereto, having regard to the claims of which 
 such executor or administrator has then notice, and shall not be 
 liable for the assets, or any part thereof, so distributed to any 
 person of whose claim such executor or administrator shall not 
 have had notice at the time of distribution of the said assets or 
 a part thereof, as the case may be. Nothing in the present Act 
 contained shall prejudice the right of any creditor or claimant to 
 follow the assets, or any part thereof, into the hands of the 
 person or persons who may have received the same respectively. 
 22 & 23 Viet., c. 35, s. 29. 
 
 XLIII. Any trustee, executor, or administrator shall be at 
 liberty, without the institution of a suit, 
 
 Trustee, executor, t , , petition to any Judge of the 
 
 &c.. may apply by peti- TT . , rr J J i . '. 
 
 tion to Judge of High Hl g h c l rt for tbe opinion, advice, or 
 Court for opinion, ad- direction of such Judge on any question 
 vice. &c., in manage- respecting the management or administra- 
 ment. &c., of trust-pro- tion of the trust-property or the assets of 
 any testator or intestate. Such applica- 
 
460 TRUSTEES' AND MORTGAGEES' POWERS ACT. 
 
 APPDX. tion shall be served upon, or the hearing thereof shall be attend- 
 
 ed by, all persons interested in such application, or such of them 
 
 as the said Judge shall think expedient. The trustee, executor, 
 or administrator acting upon the opinion, advice, or direction 
 given by the said Judge shall be deemed, so far as regards his 
 own responsibility, to have discharged his duty as such trustee, 
 executor, or administrator in the subject-matter of the said 
 application : Provided, nevertheless, that this Act shall not extend 
 to indemnify any trustee, executor, or administrator in respect 
 of any act done in accordance with such opinion, advice, or direc- 
 tion as aforesaid, if such trustee, executor, or administrator 
 shall have been guilty of any fraud or wilful concealment or 
 misrepresentation in obtaining such opinion, advice, or direction ; 
 and the costs of such application as aforesaid shall be in the 
 discretion of the Judge to whom the said application shall be 
 made. 
 
 22 & 23 Viet., c. 35, 8. 30. See ante, p. 218. 
 
 General Provisions. 
 
 XLIV. For the purpose of this Act, a person shall be deemed 
 to be entitled to the possession or to the 
 
 Tenants-for-life, &c., receipt of the rents and income of im- 
 
 may execute powers, move able or moveable property, although 
 
 notwithstanding in- , . i 
 
 cumbrances. * 11S estate may be charged or mcumbered, 
 
 either by himself or by any former owner, 
 
 or otherwise, however, to any extent ; but the estates or interests 
 of the parties entitled to any such charge or incumbrance shall 
 not be affected by the acts of the person entitled to the posses- 
 sion or to the receipt of the rents and income as aforesaid, unless 
 they shall concur therein. 
 
 19 & 20 Viet., c. 120,8. 4.1. 
 
 XLV. The provisions contained in this Act shall, except 
 as hereinbefore otherwise provided, extend 
 only to persons entitled or acting under 
 
 a deed, will, codicil or other instrument executed after this Act 
 comes into operation, or under a will or codicil confirmed or 
 revived by a codicil executed after that date, and only to pro- 
 perty in British India and to cases to which English law is 
 applicable. 
 
 23 & 24 Viet., c. 145, s. 34. 
 
 XLVI. This Act may be called " The 
 
 Short title. m , , , r . T^ \ , 
 
 Trustees and Mortgagees rowers Act, 
 
 1866." 
 
ACT I OF 1880. 461 
 
 KELIGIOUS SOCIETIES ACT. 
 
 APPDX. 
 
 ACT I OF 1880. 
 An Act to confer certain powers on Religious Societies. 
 
 WHEREAS it is expedient to simplify the manner in which cer- 
 tain bodies of persons associated for the 
 
 Preamble. / , i i 
 
 purpose or maintaining religious -worship 
 
 may hold property acquired for such purpose, and to provide for 
 the dissolution of such bodies and the adjustment of their affairs 
 and the decision of certain questions relating to such bodies : 
 It is hereby enacted as follows : 
 
 Short title * This ^ ct ma y ^e ca ^ e( l " The Reli- 
 
 gious Societies Act, 1880." 
 
 Commencement. it s ] ia ii come m t o force at once ; and 
 
 Local extent. shall extend to the whole of British India ; 
 
 but nothing herein contained shall apply to any Hindus, Muham- 
 madans or Buddhists; or to any persons to whom the Governor- 
 General in Council may, from time to time, by notification in the 
 Gazette of India, exclude from the operation of this Act. 
 
 2. When any body of persons associated for the purpose 
 
 of maintaining religious worship has 
 
 Appointment of new acqu i re d, or hereafter shall acquire, any 
 trustees in cases not j i v- i 
 
 otherwise provided for. Property, and such property has been, or 
 hereafter shall be, vested in trustees in 
 
 trust for such body, and it becomes necessary to appoint a new 
 trustee in the place of, or in addition to, any such trustee or any 
 trustee appointed in the manner hereinafter prescribed, and no 
 manner of appointing such new trustee is prescribed by any 
 instrument by which such property was so vested or by which the 
 trusts on which it is held have been declared, or such new trustee 
 cannot for any reason be appointed in the manner so prescribed, 
 such new trustee may be appointed in such manner as may be 
 agreed upon by such body, or by a majority of not less than two- 
 thirds of the members of such body actually present at the meet- 
 ing at which the appointment is made. 
 
 3. Every appointment of new trustees under section 2 
 
 shall be made to appear by some memo- 
 randum under the hand of the chairman 
 ed in a memorandum for the time being of the meeting at 
 under the hand of the which such appointment is made. Such 
 chairman of the meet- memorandum, shall be in the form set 
 forth in the schedule hereto annexed, or 
 
 as near thereto as circumstances allow, shall be executed and 
 attested by two or more credible witnesses in the presence of such 
 meeting, and shall be deemed to be a document of which the 
 registration is required by the Indian Registration Act of 1877, 
 section 17. 
 
462 RELIGIOUS SOCIETIES ACT. 
 
 APPDX. 4. When any new trustees have been appointed, whether in 
 
 the manner prescribed by any such instru- 
 m ment as aforesaid or in the manner here- 
 
 * 1 / 'Ill 
 
 inbetore provided, the property subject to 
 
 the trust shall forthwith, notwithstanding anything contained 
 in any such instrument, become vested, without any conveyance 
 or other assurance, in such new trustees and the old continuing 
 trustees jointly, or, if there are no old continuing trustees, in 
 such new trustees wholly, upon the same trusts and with and sub- 
 ject to the same powers and provisions, as it was vested in the 
 old trustees. 
 
 5. Nothing herein contained shall be deemed to invalidate 
 
 any appointment of new trustees, or any 
 
 Saving or existing convevance of any property, which may 
 modes of appointment i ;, , / , ,. 
 
 and conveyance. hereafter be made as heretofore was by 
 
 law required. 
 
 6. Any number not less than three-fifths of the members of 
 Provisions for disso- an 7 suc]l bod 7 as aforesaid may. at any 
 
 lution of societies and meeting convened for the purpose, deter- 
 adjustment of their mine that such body shall be dissolved, 
 and thereupon it shall be dissolved forth- 
 with, or at the time then agreed upon ; and all necessary steps 
 shall be taken for the disposal and settlement of the property of 
 such body, its claims and liabilities according to the rules of 
 such body applicable thereto, if any, and if not, then as such 
 body at such meeting may determine. 
 
 Provided that, in the event of any dispute arising among the 
 members of such body, the adjustment of its affairs shall be 
 referred to the principal Court of original civil jurisdiction of 
 the district in which the chief building of such body is situate ; 
 and the Court shall make such order in the matter as it deems fit. 
 
 7. If upon the dissolution of any such body there remains, 
 
 after the satisfaction of all its debts and 
 
 Upon a dissolution no liabilities, any property whatsoever, the 
 member to receive pro- , ',, , u -i . 
 
 g t same shall not be paid to or distributed 
 
 among the members of such body or any of 
 
 them, but shall be given to some other body of persons associated 
 for the purpose of maintaining religious worship or some other 
 religious or charitable purpose to be determined by the votes of 
 not less than three-fifths of the members present at a meeting con- 
 vened in this behalf, or in default thereof by such Court as last 
 aforesaid. 
 
 8. Nothing in sections 6 and 7 shall be deemed to affect 
 
 any provision contained in any instrument 
 
 Saying of certain for the dissolution of such bodv, or for 
 provisions of instru- ,, -,. , ., ,. e \ 
 
 ments the payment or distribution ot such pro- 
 
 perty. 
 
ACT i OF 1880. 463 
 
 9. When any question arises, either in connection with, the APPDX. 
 matters hereinbefore referred to, or other- 
 
 :" to wl ; e M an ? T" 1 is / mem - 
 
 ber of any such body as aforesaid, or as 
 to the validity of any appointment under this Act, any person 
 interested in such question may apply by petition to the High 
 Court for its opinion on such question. A copy of such petition 
 shall be served upon, and the hearing thereof may be attended 
 by, such other person interested in the question as the Court 
 thinks fit. 
 
 Any opinion given by the Court on an application under this 
 section shall be deemed to have the force of a declaratory decree. 
 
 The costs of every application under this section shall be in 
 the discretion of the Court. 
 
 THE SCHEDULE. 
 
 (See section 3.) 
 
 Memorandum of the appointment of new trustees of the (des- 
 cribe the church, chapel or other buildings and property} situate 
 at a meeting duly convened and held for 
 
 that purpose (in the vestry of the said ) on the 
 
 day of 18 , A. ., 
 
 of Chairman. 
 
 Names and descriptions of all the trustees on the constitution 
 or last appointment of trustees made the day of 
 
 (here insert the same). 
 
 Names and descriptions of all the trustees in whom the said 
 (chapel and property) now become legally vested. 
 first. Old continuing trustees : 
 
 (here insert the same). 
 Second. New trustees now chosen and appointed : 
 
 (here insert the same). 
 Dated this day of 18 
 
 Signed by the said A. B. } as Chair- 
 man of the said Meeting, at and in 
 
 the presence of the said Meeting, on 
 the day and year aforesaid, in the 
 presence of 
 
 C. D. 
 
 E.F. 
 
 A. B., 
 
 Chairman of the 
 
 said Meeting. 
 
464 INDIAN TRUSTS ACT. 
 
 APPDX. THE INDIAN TRUSTS ACT. 
 
 ACT II OF 1882. 
 
 An Act to define and amend the law relating to Private Trusts and 
 
 Trustees. 
 
 WHEREAS it is expedient to define and amend the law relating 
 
 to private trusts and trustees; It is here- 
 Pr earn ble. , j /. n 
 
 by enacted as follows : 
 
 CHAPTER I. 
 PRELIMINARY. 
 
 1. This Act may be called " The Indian Trusts Act, 1882 " : 
 Short title an( ^ ^ sna ^ come into force on the first 
 Commencement. day of March, 1882. 
 
 It extends in the first instance to the territories respectively 
 administered by the Governor of Madras 
 in Council, the Lieutenant-Governors of 
 
 the North- West Provinces and the Punjab, the Chief Com- 
 missioners of Oudh, the Central Provinces, Coorg and Assam ; 
 and the Local Government may from time to time, by notification 
 in the official Gazette, extend it to any other part of British 
 India. But nothing herein contained affects the rules of Mu- 
 . hammadan law as to ivagf (a), or the 
 
 mutual relations of the members of an 
 
 undivided family as determined by any customary or personal 
 law (b), or applies to public or private religious or charitable 
 endowments (c), or to trusts to distribute prizes taken in war 
 among the captors (d) ; and nothing in the second chapter of 
 this Act applies to trusts created before the said day. 
 
 (a) Ante, p. 380. 
 
 (b) As to waste by Hindu widow, see ante, p. 145, and as to liability 
 of karta to account, see p. 158 ; as to purchaser from manager of a joint 
 Hindu family, p. 306. 
 
 (c) See p. 349. 
 
 (d) See p. 124. 
 
 2. The Statute and Acts mentioned in the schedule hereto 
 
 annexed shall, to the extent mentioned in 
 Repeal of enactments. thg gaid ^^ be repealed in the 
 
 territories to which this Act for the time being extends. 
 
 3. A ' trust ' is an obligation annexed to the ownership of 
 Interpretation-clause. Pperty, and arising out of a confidence 
 
 , reposed in and accepted by the owner 
 
 or declared and accepted by him, for the 
 benefit of another, or of another and the owner (a) : 
 
ACT ii OF 1882. 465 
 
 the person -who reposes or declares the confidence Is called the APPDX. 
 
 author of the trust ' : ' author of the trust ' : the P erson who a - 
 
 , cepts the confidence is called the ' trustee ': 
 
 the person for whose benefit the confidence 
 
 ' beneficiary ' * s acce P^ e( ^ ^ s called the ' beneficiary ' : 
 
 the subject-matter of the trust is called 
 
 ' trust-property ' : t trust-property ' or ' trust-money ' : ' the 
 
 beneficial interest' or 'interest' of the beneficiary is his right 
 against the trustee as owner of the trust-property ; and the in- 
 strument, if any, by which the trust is 
 
 ' instrument of trust' : declared is called the 'instrument of trust': 
 a breach of any duty imposed on a trustee, as such, by any 
 law for the time being in force, is called 
 a 'breach of trust': 
 
 and in this Act, unless there be something repugnant in the 
 subject or context, 'registered' means 
 registered under the law for the registra- 
 tion of documents for the time being in force : a person is said 
 . , to have ' notice ' of a fact either when he 
 
 actually knows that fact or when, but for 
 
 wilful abstention from inquiry or gross negligence, he would have 
 known it, or when information of the fact is given to or obtained by 
 his agent, under the circumstances mentioned in the Indian Con- 
 tract Act, 1872, section 229 (b) ; and all 
 
 in^TlTof B 1872 expressions used herein and defined in 
 
 the Indian Contract Act, 1872, shall be 
 
 deemed to have the meanings respectively attributed to them by 
 that Act. 
 
 (a) See p. 16. 
 
 (b) See p. 276. 
 
 CHAPTER II. 
 
 OP THE CREATION OF TRUSTS. 
 
 4. A trust may be created for any lawful purpose. The pur- 
 pose of a trust is lawful unless it is (a) 
 
 Lawful purpose. f orbid den by law, or (b) is of such a 
 
 nature that, if permitted, it would defeat the provisions of any 
 law, or (c) is fraudulent, or (d) involves or implies injury to 
 the person or property of another, or (e) the Court regards it as 
 immoral or opposed to public policy. 
 
 Every trust of which the purpose is unlawful is void. And 
 where a trust is created for two purposes, of which one is lawful 
 and the other unlawful, and the two purposes cannot be separated, 
 the whole trust is void. 
 
 59 
 
46G INDIAN TRUSTS ACT. 
 
 APPDX. Explanation. In this section, the expression ' law ' includes, 
 
 where the trust-property is immoveable and situate in a foreign 
 
 country, the law of such country. 
 
 Illustrations. 
 
 (a.) A conveys property to B in trust to apply the profits to the nur- 
 ture of female foundlings to be trained up as prostitutes. The trust is 
 void. 
 
 (.) A bequeaths property to B in trust to employ it in carrying on a 
 smuggling business, and out of the profits thereof to support A's chil- 
 dren. The trust is void. 
 
 (c.) A, while in insolvent circumstances, transfers property to -B in 
 trust for A during his life, and after his death for B. A is declared an 
 insolvent. The trust for A is invalid as against his creditors. 
 
 See Lect. I, pp. 1950. 
 
 5. No trust in relation to iramoveable property is valid unless 
 
 declared by a non-testamentary instrument 
 immoveable in writing signed by the author of the 
 trust or the trustee and registered, or by 
 the will of the author of the trust or of the trustee, 
 
 No trust in relation to moveable property is valid unless de- 
 clared as aforesaid, or unless the ownership 
 
 roperty. of the P ro P ert 7 is transferred to the 
 
 trustee. 
 
 These rules do not apply where they would operate so as to 
 effectuate a fraud. 
 
 See Lect. II, p. 51. 
 
 6. Subject to the provisions of section five, a trust is created 
 . when the author of the trust indicates with 
 
 lst - reasonable certainty by any words or acts 
 (a) an intention on his part to create thereby a trust, (b) the 
 purpose of the trust, (c) the beneficiary, and (d) the trust-pro- 
 perty, and (unless the trust is declared by will or the author of 
 the trust is himself to be the trustee) transfers the trust-property 
 to the trustee. 
 
 Illustrations. 
 
 (a.) A bequeaths certain property to B. " having the fullest confidence 
 that he will dispose of it for the benefit of " C. This creates a trust so 
 far as regards A and C. 
 
 (b.) A bequeaths certain property to B, " hoping he will continue it in 
 the family." This does not create a trust, as the beneficiary is not indi- 
 cated with reasonable certainty. 
 
 (c.) A bequeaths certain property to B. requesting him to distribute it 
 amongst such members of C's family as B should think most deserving. 
 This does not create a trust, for the beneficiaries are not indicated with 
 reasonable certainty. 
 
 (<i.) A bequeaths certain property to B, desiring him to divide the bulk 
 of it among Cs children. This does not create a trust, for the trust-pro- 
 perty is not indicated with sufficient certainty. 
 
ACT ii OF 1882. 467 
 
 (c.) A bequeaths a shop and stock-in-trade to B. on condition that he APPDX. 
 pays A's debts and a legacy to C. This is a condition, not a trust for A"s _ 
 creditors and C. 
 
 As to implied trusts, see Lect. Ill, and as to benami transactions and 
 constructive trusts, Lect. IV. 
 
 truTte may " eate 7 ' A tmst ma y be created 
 
 (a) by every person competent to contract, and, 
 
 (b) with the permission of a principal Civil Court of original 
 jurisdiction, by or on behalf of a minor ; 
 
 but subject in each case to the law for the time being in force 
 as to the circumstances and extent in and to which the author of 
 the trust may dispose of the trust-property. 
 
 See p. 124. 
 
 8. The subject-matter of a trust must 
 Subject of trust. , , J f ul ,, , ~ . 
 
 be property transferable to the beneficiary. 
 
 It must not be a merely beneficial interest under a subsisting 
 trust. 
 
 See p. 25. 
 
 Who may be benefi- 9. Every person capable of holding 
 ciary. property may be a beneficiary. 
 
 A proposed beneficiary may renounce his interest under the 
 
 trust by disclaimer addressed to the trustee, 
 ^ Disclaimer by benefi or by setting upj with notice o f the trusfc> 
 
 a claim inconsistent therewith. 
 See p. 127. 
 
 10. Every person capable of holding property may be a trus- 
 
 tee : but where the trust involves the 
 \V ho may be trustee. .? j , t. 
 
 exercise of discretion, he cannot execute 
 
 it unless he is competent to contract (a). 
 
 aC " No one is bound to ^* a trust b - 
 
 A trust is accepted by any words or acts 
 Acceptance of trust. of the trustee indicating with reasonable 
 
 certainty such acceptance (c). 
 Instead of accepting a trust, the intended trustee may, within 
 
 TV , . a reasonable period, disclaim it, and such 
 
 Disclaimer of trust. -,. , . ,*V. 
 
 disclaimer shall prevent the trust-property 
 
 from vesting in him. 
 
 A disclaimer by one of two or more co-trustees vests the trust- 
 property in the other or others, and makes him or them sole 
 trustee or trustees from the date of the creation of the trust (d). 
 
468 INDIAN TRUSTS ACT. 
 
 APPDX. 
 
 Illustrations. 
 
 (a.) A bequeaths certain property to B and C, his executors. as trustees 
 for J). B and C prove A's will. This is in itself an acceptance of the 
 trust, and B and C hold the property in trust for D. 
 
 (b.) A transfers certain property to B in trust to sell it and to pay out 
 of the proceeds A's debts. B accepts the trust and sells the property. 
 So far as regards B, a trust of the proceeds is created for A's creditors. 
 
 (<;.) A bequeaths a lakh of rupees to B upon certain trusts, and appoints 
 him his executor. B severs the lakh from the general assets and appro- 
 priates it to the specific purpose. This is an acceptance of the trust. 
 
 (a) See p. 127. 
 
 (b) See p. 1 32. 
 
 (c) Seep. 120. 
 
 (d) See p 132. 
 
 CHAPTER III. 
 OF THE DUTIES AND LIABILITIES OF TRUSTEES. 
 
 11. The trustee is bound to fulfil the purpose of the trust, 
 and to obey the directions of the author 
 
 of the trust g iven at the time of its crea - 
 tion, except as modified by the consent of 
 all the beneficiaries being competent to contract. 
 
 Where the beneficiary is incompetent to contract, his consent 
 may, for the purposes of this section, be given by a principal Civil 
 Court of original jurisdiction. 
 
 Nothing in this section shall be deemed to require a trustee to 
 obey any direction when to do so would be impracticable, illegal 
 or manifestly injurious to the beneficiaries. 
 
 Explanation. Unless a contrary intention be expressed, the 
 purpose of a trust for the payment of debts shall be deemed to 
 be (a) to pay only the debts of the author of the trust existing 
 and recoverable at the date of the instrument of trust, or, when 
 such instrument is a will, at the date of his death; and (b) in the 
 case of debts not bearing interest, to make such payment without 
 interest. 
 
 Illustration*. 
 
 (a.) A, a trustee, is simply authorized to sell certain land by public 
 auction. He cannot sell the land by private contract. 
 
 (J.) A, a trustee of certain laud for X, Fand Z. is authorized to sell 
 the land to U for a specified sum. X, Y and Z, being competent to con- 
 tract, consent that A may sell the land to C for a less sum. A may sell 
 the land accordingly. 
 
 (c.) A, a trustee for B and her children, is directed by the author of 
 the trust to lend, on B's request, trust-property to B's husband, 6', on 
 the security of his bond. C becomes insolvent, and B requests A to make 
 the loan. A may refuse to make it. 
 
 See p. 135. 
 
ACT ii OF 1882. 469 
 
 12. A trustee is bonnd to acquaint himself, as soon as possible, APPDX. 
 
 with the nature and circumstances of the 
 
 Trustee to inform trust-property ; to obtain, where necessary, 
 himself of state of ^, r .'J ,. , x ' 
 
 trust-property. a t ran sfer ot the trust-property to himselt ; 
 
 and (subject to the provisions of the in- 
 strument of trust) to get in trust-moneys invested on insufficient 
 or hazardous security. 
 
 Illustrations. 
 
 (.) The trust-property is a debt outstanding on personal security. 
 The instrument of trust gives the trustee no discretionary power to leave 
 the debt so outstanding. The trustee's duty is to recover the debt with- 
 out unnecessary delay. 
 
 (b.) The trust-property is money in the hands of one of two co-trustees. 
 No discretionary power is given by the instrument of trust. The other 
 co-trnstee must not allow the former to retain the money for a longer 
 period than the circumstances of the case require 
 
 See p. 136. 
 
 13. A trustee is bound to maintain and defend all such suits, 
 
 _, , , and (subject to the provisions of the in- 
 
 Trustee to protect , J c , . N , , ,, 
 
 title to trust-property. strument of trust) to take such other steps 
 as, regard being had to the nature and 
 
 amount or value of the trust-property, may be reasonably requi- 
 site for the preservation of the trust-property and the assertion 
 or protection of the title thereto. 
 
 Illustration. 
 
 The trust-property is immoveable property which has been given 
 to the author of the trust by an unregistered instrument. Subject to 
 the provisions of the Indian Registration Act, 1877, the trustee's duty is 
 to cause the instrument to be registered. 
 
 See p. 137. 
 
 14. The trustee must not for himself 
 
 Trustee not to set up or anot her set up or aid any title to the 
 title adverse to benefi- j ,/ . , . 
 
 ci trust-property adverse to the interest of 
 
 the beneficiary. 
 See p. 155. 
 
 15. A trustee is bound to deal with the trust-property as care- 
 fully as a man of ordinary prudence would 
 
 Care required from , , .., , * r . ., , . 
 
 trustee " e " With such property if it were his 
 
 own ; and, in the absence of a contract 
 
 to the contrary, a trustee so dealing is not responsible for the loss, 
 destruction or deterioration of the trust-property. 
 
 lllnstraticns, 
 
 (#.) A, living in Calcutta, is a trustee for H, living in Bombay. A 
 remits trust-funds to B by bills drawn by a person of undoubted credit 
 in favor of the trustee as such, and payable at Bombay. The bills are 
 dishonoured. A is not bound to make good the loss. 
 
470 INDIAN TRUSTS ACT. 
 
 APPDX. (k) -A- * trustee of leasehold property, directs the tenant to pay the rents 
 . on account of the trust to a banker, B, then in credit. The rents are 
 
 accordingly paid to B, and A leaves the money with B only till wanted. 
 Before the money is drawn out. B becomes insolvent. A. having had no 
 reason to believe that B was in insolvent circumstances, is not bound to 
 make good the loss. 
 
 (c.) A, a trustee of two debts for B. releases one and compounds the 
 other, in good faith, and reasonably believing that it is for Ifs interest 
 to do so. A is not bound to make good any loss caused thereby to B. 
 
 (rf.) A, a. trustee directed to sell the trust-property by auction, sells 
 the same, but does not advertise the sale and otherwise fails in reasonable 
 diligence in inviting competition. A is bound to make good the loss 
 caused thereby to the beneficiary. 
 
 (>.) A. a trustee for B. in execution of his trust, sells the trust-pro- 
 perty, but from want of due diligence on his part fails to receive part of 
 the purchase-money. A is bound to make good the loss thereby caused 
 to B. 
 
 (/.) A, a trustee for B of a policy of insurance, has funds in hand for 
 payment of the premiums A neglects to pay the premiums, and the 
 policy is consequently forfeited. A is bound to make good the loss to B. 
 
 (//.) A bequeaths certain moneys to B and C as trustees, and authorizes 
 them to continue trust-moneys upon the personal security of a certain 
 firm in which A had himself invested them. A dies, and a change 
 takes place in the firm. B and C must not permit the moneys to remain 
 upon the personal security of the new firm. 
 
 (/(.) A, a trustee for B. allows the trust to be executed solely by his 
 co-trustee, C. C misapplies the trust-property. A is personally answer- 
 able for the loss resulting to B. 
 
 See p. 140. 
 
 16. Where the trust is created for the benefit of several per- 
 
 sons in succession, and the trust-property 
 Conversion of perish- ~ , . ,. , 
 
 able property. 1S of a wastin o nature or a future or re- 
 
 versionary interest, the trustee is bound, 
 
 unless an intention to the contrary may be inferred from the 
 instrument of trust, to convert the property into property of a 
 permanent and immediately profitable character. 
 
 Illustrations. 
 
 (a.) A bequeaths to B all his property in trust for C during his life, 
 and on his death for D, and on D'a death for E. As property consists 
 of three leasehold houses, and there is nothing in A's will to show 
 that he intended the houses to be enjoyed in specie. B should sell the 
 houses, and invest the proceeds in accordance with section twenty. 
 
 (J.) A bequeaths to B his three leasehold houses in Calcutta and all 
 the furniture therein in trust for 6 during his life, and on his death 
 for D, and on D's death for E. Here an intention that the houses 
 and furniture should be enjoyed in specie appears clearly, and B should 
 not sell them. 
 
 See p. 148. 
 
 17. Where there are more beneficiaries than one, the trustee 
 
 is bound to be impartial, and must not 
 ^Trustee to be impar- execute the trust for the advantage of 
 
 one at the expense of another. 
 
ACT ii OF 1882. 471 
 
 Where the trustee has a discretionary power, nothing in this APPDX. 
 
 section shall be deemed to authorize the Court to control 
 
 the exercise reasonably and in good faith of such discretion. 
 
 Illustration. 
 
 A. a trustee for S. C and D, is empowered to choose between several 
 specified modes of investing the trust-property, ^t in good faith 
 chooses one of these modes The Court will not interfere, although 
 the result of the choice may be to vary the relative rights of S, 
 C and D. 
 
 See p. 152. 
 
 18. Where the trust is created for the benefit of several 
 
 persons in succession, and one of them 
 prevent i s in possession of the trust-property, if he 
 
 commits, or threatens to commit, any act 
 which is destructive or permanently injurious thereto, the trustee 
 is bound to take measures to prevent such act. 
 
 See p. 142. 
 
 19. A trustee is bound (a) to keep clear and accurate 
 
 accounts of the trust-property, and (b) 
 
 at a11 reasonable times > at the request of 
 the beneficiary, to furnish him with full 
 and accurate information as to the amount and state of the trust- 
 property. 
 
 See p. 157. 
 
 20. Where the trust-property consists of money and cannot 
 
 be applied immediately or at an early date 
 ^Investment of trust- ^ the purposes of the trust, the trustee 
 
 is bound (subject to any direction con- 
 tained in the instrument of trust) to invest the money on the 
 following securities, and on no others : 
 
 (a) in promissory notes, debentures, stock or other securities 
 of the Government of India, or of the United Kingdom of 
 Great Britain and Ireland ; 
 
 (b) in bonds, debentures and annuities charged by the 
 Imperial Parliament on the revenues of India ; 
 
 (c) in stock or debentures of, or shares in, Railway or 
 other companies, the interest whereon shall have been guaranteed 
 by the Secretary of State for India in Council ; 
 
 (d) in debentures or other securities for money issued by, 
 or on behalf of, any municipal body under the authority of 
 any Act of a Legislature established in British India ; 
 
 (e) on a first mortgage of immoveable property situate in 
 British India : Provided that the property is not a leasehold for a 
 term of years and that the value of the property exceeds by one- 
 
472 INDIAN TRUSTS ACT. 
 
 APPDX. third, or, if consisting of buildings, exceeds by one-half, the 
 mortgage-money ; or 
 
 ( / ) on any other security expressly authorized by the instru- 
 ment of trust, or by any rule which the High Court may from 
 time to time prescribe in this behalf. 
 
 Provided that, where there is a person competent to contract 
 and entitled in possession to receive the income of the trust-pro- 
 perty for his life, or for any greater estate, no investment on any 
 security mentioned or referred to in clauses (d), (e) and (f ) 
 shall be made without his consent in writing. 
 
 See p. 1GO, and compare ss. 5 and 32 of Act XVIII of 1866, ante, 
 pp. 445, 453. 
 
 21. Nothing in section twenty shall apply to investments 
 
 made before this Act comes into force, 
 
 Mortgage of land or sna u b e deemed to preclude an invest- 
 meilt on a mortgage of immoveable pro- 
 perty already pledged as security for an 
 advance under the Land Improvement Act, 
 
 1871, or, in case the trust-money does not exceed three thousand 
 Deposit in Govern- rupees, a deposit thereof in a Government 
 ment Savings Bank. Savings Bank. 
 
 22. Where a trustee directed to sell within a specified time 
 
 extends such time, the burden of prov- 
 
 Sale by trustee direct- ing as between himself and the benefi- 
 ed to sell within speci- . ,1 , ,1 i , j- j u 
 
 fied time ciary, that the latter is not prejudiced by 
 
 the extension lies upon the trustee, unless 
 
 the extension has been authorized by a principal Civil Court of 
 original jurisdiction. 
 
 Illustration. 
 
 A bequeaths property to B, directing him, with all convenient speed 
 and within five years, to sell it. and apply the proceeds for the benefit of 
 C. In the exercise of reasonable discretion, B postpones the sale for six 
 years. The sale is not thereby rendered invalid, but C, alleging that 
 he has been injured by the postponement, institutes a suit against B to 
 obtain compensation. In such suit the burden of proving that C has 
 not been injured lies on B. 
 
 Seep. 172. 
 
 23. Where the trustee commits a breach of trust, he is liable 
 
 to make good the loss which the trust- 
 ^ property or the beneficiary has thereby 
 
 sustained, unless the beneficiary has by 
 
 fraud induced the trustee to commit the breach, or the benefi- 
 ciary, being competent to contract, has himself, without coercion 
 or undue influence having been brought to bear on him, con- 
 curred in the breach, or subsequently acquiesced therein, with 
 
ACT ii OF 1882. 473 
 
 full knowledge of the facts of the case and of his rights as APPDX. 
 
 against the trustee. 
 
 A trustee committing a breach of trust is not liable to pay 
 interest except in the following cases : 
 
 (a) where he has actually received interest : 
 
 (b) where the breach consists in unreasonable delay in paying 
 trust-money to the beneficiary : 
 
 (c) where the trustee ought to have received interest, but has 
 not done so : 
 
 (d) where he may be fairly presumed to have received interest, 
 He is liable, in case (a), to account for the interest actually 
 
 received, and in cases (b), (c) and (d), to account for simple 
 interest at the rate of six per cent, per annum, unless the Court 
 otherwise directs. 
 
 (e) where the breach consists in failure to invest trust-money 
 and to accumulate the interest or dividends thereon, he is liable 
 to account for compound interest (with half-yearly rests) at the 
 same rate : 
 
 ( f ) where the breach consists in the employment of trust- 
 property or the proceeds thereof in trade or business, he is liable 
 to account, at the option of the beneficiary, either for compound 
 interest (with half-yearly rests) at the same rate, or for the nett 
 profits made by such employment. 
 
 Illustrations.. 
 
 (.") A trustee improperly leaves trust-property outstanding, and it is 
 consequently lost : he is liable to make good the property lost, but he is 
 not liable to pay interest thereon. 
 
 (b.) A bequeaths a house to B in trust to sell it and pay the proceeds 
 to C. B neglects to sell the house for a great length of time, whereby 
 the house is deteriorated and its market price falls. B is answerable to 
 C for the loss. 
 
 (c.) A trustee is guilty of unreasonable delay in investing trust-money 
 in accordance with section twenty, or in paying it to the beneficiary. 
 The trustee is liable to pay interest thereon for the period of the delay. 
 
 (J.) The duty of the trustee is to invest trust-money in any of the 
 securities mentioned in section twenty, clause (a). (*), (c) or (</). In- 
 stead of so doing, he retains the money iu his hands. He is liable, at 
 the option of the beneficiary, to be charged either with the amount of 
 the principal money and interest, or with the amount of such securities 
 as he might have purchased with the trust-money when the investment 
 should have been made, and the intermediate dividends and interest 
 thereon. 
 
 (e.) The instrument of trust directs the trustee to invest trust-money 
 either in any of such securities or on mortgage of immoveable property. 
 The trustee does neither. He is liable for the principal money and 
 interest. 
 
 (/. ) The instrument of trust directs the trustee to invest trust-money 
 in any of such securities and to accumulate the dividends thereon. The 
 trustee disregards the direction. He is liable, at the option of the 
 beneficiary, to be charged either with the amount of the principal money 
 and compound interest, or with the amount of such securities as he might 
 have purchased with the tru^t-money when the investment should have 
 
 60 
 
474 INDIAN TRUSTS ACT. 
 
 APPDX been made, together -with the amount of the accumulation which would 
 . ' have arisen from a proper investment of the intermediate dividends. 
 
 (g.) Trust-property is invested in one of the securities mentioned in 
 section twenty, clause (), (6). (c) or (d). The trustee sells such security 
 for some purpose not authorized by the terms of the instrument of 
 trust. He is liable, at the option of the beneficiary, either to replace the 
 security with the intermediate dividends and int erest thereon, or to 
 account for the proceeds of the sale with interest thereon. 
 
 (A ) The trust-property consists of land. The trustee sells the land 
 to a purchaser for a consideration without notice of the trust. The 
 trustee is liable, at the option of the beneficiary, to purchase other land 
 of equal value to be settled upon the like trust, or to be charged with 
 the proceeds of the sale with interest. 
 
 See pp. 181, 190. 
 
 As to interest, pp. 178, 291, 313, 314, 318. 
 
 24. A trustee who is liable for a loss occasioned by a breach 
 
 of trust in respect of one portion of the 
 No set-off allowed to JT 
 
 trustee trust-property cannot set-on against his 
 
 liability a gain which has accrued to 
 
 another portion of the trust-property through another and distinct 
 breach of trust. 
 
 See p. 192. 
 
 25. Where a trustee succeeds another, he is not, as such, 
 
 Non-liability for pre- liable for the acts or defaults of his pre- 
 decessor's default. decessor. 
 
 See p. 193. 
 
 26. Subject to the provisions of sections thirteen and fifteen, 
 
 one trustee is not, as such, liable for a 
 J\on-liabihty for co- , , ,. . ... , ', , . 
 
 trustee's default. breach of trust committed by his co- 
 
 trustee : 
 
 Provided that, in the absence of an express declaration to the 
 contrary in the instrument of trust, a trustee is so liable 
 
 (a) where he has delivered trust-property to his co-trustee 
 without seeing to its proper application ; 
 
 (6) where he allows his co-trustee to receive trust-property 
 and fails to make due enquiry as to the co-trustee's dealings there- 
 with, or allows him to retain it longer than the circumstances of 
 the case reasonably require : 
 
 (c) where he becomes aware of a breach of trust committed 
 or intended by his co-trustee, and either actively conceals it or 
 does not within a reasonable time take proper steps to protect the 
 beneficiary's interest. ' 
 
 A co-trustee who joins in signing a receipt for trust-property 
 and proves that he has not received the 
 '' same is not answerable, by reason of such 
 signature only, for loss or misapplication 
 of the property by his co-trustee. 
 
ACT ii OF 1882; 475 
 
 Illustration. APPDX. 
 
 A bequeaths certain property to B and C, and directs them to sell it 
 and invest the proceeds for the benefit of D. B and C accordingly sell 
 the property, and the purchase-money is received by B and retained in 
 his hands. C pays no attention to the matter for two years, and then 
 calls on B to make the investment. B is unable to do so. becomes 
 insolvent, and the purchase-money is lost. C may be compelled to make 
 good the amount. 
 
 See p. 193. 
 
 27. Where co-trustees jointly commit a breach of trust, or 
 
 where one of them by his neglect enables 
 
 Several liability of the otber t com mit a breach of trust, 
 
 co-trustees. , . ,. , , ~ . ,. ,, ' 
 
 each is liable to the beneficiary lor the 
 
 whole of the loss occasioned by such breach. 
 
 But as between the trustees themselves, if one be less guilty 
 than another and has had to refund the 
 
 loss ' the former mav c <> m pel the latter, or 
 his legal representative to the extent of 
 
 the assets he has received, to make good such loss ; and if all be 
 
 equally guilty, any one or more of the trustees who has had to 
 
 refund the loss may compel the others to contribute. 
 
 Nothing in this section shall be deemed to authorize a 
 
 trustee who has been guilty of fraud to institute a suit to compel 
 
 contribution. 
 
 See p. 206. 
 
 28. When any beneficiary's interest becomes rested in ano- 
 
 ther person, and the trustee, not having 
 
 Non - liability of notice of the vesting, pays or delivers 
 
 SSSTStS^S trust-property to tl,e person who would 
 
 beneficiary. have been entitled thereto in the absence 
 
 of such vesting, the trustee is not liable 
 
 for the property so paid or delivered. 
 
 See p. 203. 
 
 29. When the beneficiary's interest is forfeited or awarded by 
 
 legal adjudication to Government, the 
 
 wh'^ben^ficiar^rin 6 trustee is bound to hold the trust-property 
 teresT is^forfeited ^ * tue exten t f su ch interest for the benefit 
 Government. f such person iu such manner as the 
 
 Government may direct in this behalf. 
 See p. 126. 
 
 30. Subject to the provisions of the instrument of trust 
 
 and of sections twenty-three and twenty- 
 Indemnity of trustees, six, trustees shall be respectively charge- 
 able only for such moneys, stocks, funds 
 and securities as they respectively actually receive, and shall 
 
476 INDIAN TEUSTS ACT. 
 
 APPDX. not be answerable the one for the other of them, nor for any 
 
 banker, broker or other person in whose hands any trust-property 
 
 may be placed, nor for the insufficiency or deficiency of any 
 stocks, funds or securities, nor otherwise for involuntary losses. 
 
 Compare Act XXVIII of 1866, s. 37, ante, p. 456, and ss. 15 and 1G of 
 
 this Act. See also ante, pp. 178, 20<J, 270. 
 
 CHAPTER IV. 
 OF THE RIGHTS AND POWERS OF TRUSTEES. 
 
 31. A trustee is entitled to have in his possession the instru- 
 
 ment of trust and all the documents of 
 Right to title-deeds. tit](j (if ftuy j rektiug solely to the trust . 
 
 property. 
 See p. 211. 
 
 32. Every trustee may reimburse himself, or pay or discharge 
 
 out of the trust-property, all expenses 
 
 Right to reimburse- } iucmred in or about the execu- 
 
 ment of expenses. r J J 
 
 tion oi the trust, or the realization, pre- 
 servation or benefit of the trust-property, or the protection or 
 support of the beneficiary. 
 
 If he pays such expenses out of his own pocket he has a first 
 charge upon the trust-property for such expenses and interest 
 thereon ; but such charge (unless the expenses have been incur- 
 red with the sanction of a principal Civil Court of original juris- 
 diction) shall be enforced only by prohibiting any disposition of 
 the trust-property without previous payment of such expenses 
 and interest. 
 
 If the trust-property fail, the trustee is entitled to recover from 
 the beneficiary personally on whose behalf he acted, and at 
 whose request, expressed or implied, he made the payment, the 
 amount of such expenses. 
 
 Where a trustee has by mistake made an overpayment to the 
 beneficiary, he may reimburse the trust- 
 
 Right to be recouped pro p ert y out of the beneficiary's interest. 
 
 ' If such interest fail > the trustee is entitled 
 
 to recover from the beneficiary personally 
 
 the amount of such overpayment. 
 See p. 212 ; as to overpayment, p. 180. 
 
 33. A person other than a trustee who has gained an advan- 
 tage from a breach of trust must indem- 
 
 Right to indemnity nif the trustee . to t h e extent of the 
 from gainer by breach ,, , , , 
 
 of trust. amount actually received by such person 
 
 under the breach ; and where he is a bene- 
 ficiary the trustee has a charge ou his interest fur such amount. 
 
ACT II OF 1882. 477 
 
 Nothing in this section shall be deemed to entitle a trustee to APPDX. 
 
 be indemnified who has, iu committing the breach of trust, been 
 
 guilty of fraud. 
 
 See p. 217. 
 
 34. Any trustee may, without instituting a suit, apply by 
 
 petition to a principal Civil Court of ori- 
 Right to apply to giual jurisdiction for its opinion, advice or 
 
 opinion direction on anv present questions respect- 
 
 mariajjemeut 01 trust- . , - r ., . . . r . 
 
 property. ln g "ie management or administration of 
 
 the trust-property other than questions of 
 
 detail, difficulty or importance, not proper in the opinion of the 
 Court for summary disposal. 
 
 A copy of such petition shall be served upon, and the hearing 
 thereof may be attended by, such of the persons interested in the 
 application as the Court thinks fit. 
 
 The trustee stating iu good faith the facts in such petition and 
 acting upon the opinion, advice or direction given by the Court 
 shall be deemed, so far as regards his own responsibility, to have 
 discharged his duty as such trustee in the subject-matter of the 
 application. 
 
 The costs of every application under this section shall be in 
 the discretion of the Court to which it is made. 
 
 Compare Act XXVIII of 1866, s. 43, ante, p. 459, and see p. 218. 
 
 35. When the duties of a trustee, as such, are completed, he 
 _. , is entitled to have the accounts of his 
 
 of Accounts. 8 administration of the trust-property exa- 
 
 mined and settled ; and, where nothing is 
 
 due to the beneficiary under the trust, to an acknowledgment in 
 writing to that effect. 
 
 See p. 219. 
 
 36. In addition to the powers expressly conferred by this Act 
 
 and by the instrument of trust, and sub- 
 General authority of- ,-, <. -t j. j 
 trustee J restrictions, it any, contained 
 
 in such instrument, and to the provisions 
 
 of section seventeen, a trustee may do all acts which are reason- 
 able and proper for the> realization, protection or benefit of the 
 trust-property, and for the protection or support of a beneficiary 
 who is not competent to contract. 
 
 Every trustee in the actual possession or receipt of the rents 
 and profits of land as defined in the Land Improvement Act, 
 1871, shall, for the purposes of that Act, be deemed to be a land- 
 lord in possession. 
 
 Except with the permission of a principal Civil Court of origi- 
 nal jurisdiction, no trustee shall lease trust-property for a term 
 
478 INDIAN TRUSTS ACT. 
 
 APPDX. exceeding twenty-one years from the date of executing the lease, 
 
 nor without reserving the best yearly rent that can be reasonably 
 
 obtained. 
 See p. 219. 
 
 37. Where the trustee is empowered to sell any trust-property, 
 
 he may sell the same subject to prior 
 
 Power to sell in lota, charges or not, and either together or in 
 and either by public j t b Wic auct j on or pr i v;i te contract, 
 auction or private con- i , , . i , 
 
 trac j. and either at one time or at several times, 
 
 unless the instrument of trust otherwise 
 directs. 
 
 38. The trustee making any such sale may insert such reason- 
 
 able stipulations either as to title or 
 "idence f title, or otherwise, in any con- 
 ditions ot sale or contract tor sale, as he 
 
 thinks fit ; and may also buy-in the property or any part thereof 
 at any sale by auction, and rescind or vary any contract for sale, 
 and re-sell the property so bought in, or 
 
 resell 7 ~ m as to which the contract is so rescinded, 
 
 without being responsible to the benefi- 
 ciary for any loss occasioned thereby. 
 
 Where a trustee is directed to sell trust-property or to invest 
 
 trust-money in the purchase of property, he 
 Time allowed for sell- 
 
 ing trust-property. ma y exercise a reasonable discretion as to 
 
 the time of effecting the sale or purchase. 
 
 Illustrations. 
 
 (a.) A bequeaths property to B. directing him to sell it with all con- 
 venient speed and pay the proceeds to C. This does not render an imme- 
 diate sale imperative. 
 
 (&.) A bequeaths property to B, directing him to sell it at such time 
 and in such manner as he shall think fit, and invest the proceeds for the 
 benefit of C. This does not authorize ft, as between him and C, to post- 
 pone the sale to an indefinite period. 
 
 Compare Act XXVIII of 1866, s. 2, ante, p. 444 ; and see p. 222. 
 
 Compare Act XXVIII of 1866, s. 3, ante, p. 444, and see p. 223 ; as to 
 buying in, see p. 224 ; and as to the time for selling trust-property, see 
 p. 172. 
 
 39. For the purpose of completing any such sale, the trustee 
 
 shall have power to convey or otherwise 
 Power to convey. ,. r , , 
 
 dispose ot the property sold in such 
 
 manner as may be necessary. 
 See p. 225. 
 
 40. A trustee may, at his discretion, cal! in any trust-property 
 
 invested in any security and invest the 
 Power to vary invest- ' ,, 
 
 same on any ot the securities mentioned 
 
 or referred to iu section twenty, and from 
 
ACT ii OF 1882. ' 479 
 
 time to time vary any such investments for others of the same APPDX. 
 
 nature. 
 
 Provided that, where there is a person competent to contract 
 and entitled at the time to receive the income of the trust-pro- 
 perty for his life, or for any greater estate, no such change of 
 investment shall be made without his consent in writing. 
 
 See p. 225. 
 
 41. Where any property is held by a trustee in trust for a 
 
 minor, such trustee may, at his discretion, 
 
 Power to apply pro- to the guarc lj ans (if any ) O f ^^ 
 
 perty of minors. X.G.. for r / .i_ i f i 
 
 their maintenance, &c. minor, or otherwise apply for or towards 
 his maintenance or education or advance- 
 ment in life, or the reasonable expenses of his religious worship, 
 marriage or funeral, the whole or any part of the income to which 
 he may be entitled in respect of such property ; and such trustee 
 shall accumulate all the residue of such income by way of com- 
 pound interest, by investing the same and the resulting income 
 thereof from time to time in any of the securities mentioned or 
 referred to in section twenty, for the benefit of the person who 
 shall ultimately become entitled to the property from which such 
 accumulations have arisen : Provided that such trustee may, at 
 any time, if he thinks fit, apply the whole or any part of such 
 accumulations as if the same were part of the income arising in 
 the then current year. 
 
 Where the income of the trust-property is insufficient for the 
 minor's maintenance or education or advancement in life, or the 
 reasonable expenses of his religious worship, marriage or funeral, 
 the trustee may, with the permission of a principal Civil Court 
 of original jurisdiction, but not otherwise, apply the whole or any 
 part of such property for or towards such maintenance, education, 
 advancement or expenses. 
 
 Nothing in this section shall be deemed to affect the provisions 
 of any local law for the time being in force relating to the per- 
 sons and property of minors. 
 
 See pp. 221, 226, and Act XXVIII of 1866, B. 33, ante, p. 45i. 
 
 42. Any trustees or trustee may give a receipt in writing for 
 
 _ . any money, securities or other moveable 
 
 Power to srive re- L1 /. ,1 , ,. 
 
 pgjptg property payable, transferable or deliver- 
 
 able to them or him by reason, or in the 
 
 exercise, of any trust or power ; and, in the absence of fraud, 
 such receipt shall discharge the person paying, transferring or 
 delivering the same therefrom, and from seeing to the appli- 
 cation thereof, or being accountable for any loss or misapplication 
 thereof. 
 
 Compare Act XXVIII of 1866, s. 36, ante, p. 456 ; and see p. 229. 
 
480 INDIAN TRUSTS ACT. 
 
 APPDX 43. Two or more trustees acting to- 
 ' &c T )mpoind ' gether may, if and as they think fit 
 
 (a) accept any composition or any security for any debt or for 
 any property claimed ; 
 
 (b) allow any time for payment of any debt ; 
 
 (c) compromise, compound, abandon, submit to arbitration or 
 otherwise settle any debt, account, claim or thing whatever relat- 
 ing to the trust ; and, 
 
 (d} for any of those purposes, enter into, give, execute and do 
 such agreements, instruments of composition or arrangement, 
 releases and other things as to them seem expedient, without 
 being responsible for any loss occasioned by any act or thing so 
 done by them in good faith. 
 
 The powers conferred by this section on two or more trustees 
 acting together may be exercised by a sole acting trustee when 
 by the instrument of trust, if any, a sole trustee is authorized to 
 execute the trusts and powers thereof. 
 
 This section applies only if and as far as a contrary intention 
 is not expressed in the instrument of trust, if any, and shall have 
 effect subject to the terms of that instrument and to the provisions 
 therein contained. 
 
 This section applies only to trusts created after this Act comes 
 into force. 
 
 See p. 222. 
 
 44. "J^hen an authority to deal with the trust-property is 
 
 given to several trustees, and one of them 
 
 Power to several trus- disclaims or dies, the authority may be 
 tees of whom one dis- . , , ,, ... J 
 
 claims or dies. exercised by the continuing trustees, un- 
 
 less from the terms of the instrument of 
 
 trust it is apparent that the authority is to be exercised by a 
 number in excess of the numbers of the remaining trustees. 
 
 45. Where a decree has been made in a suit for the execution 
 
 of a trust, the trustee must not exercise 
 
 Suspension of trus- /? i L r *. 
 
 tee's powers by decree. an / of lus P ow ers except in conformity 
 
 with such decree, or with the sanction of 
 
 the Court by which the decree has been made, or, where an ap- 
 peal against the decree is pending, of the Appellate Court. 
 
 See p. 232. 
 
ACT II OF 1882. 481 
 
 CHAPTER V. APPDX. 
 
 OF THE DISABILITIES OF TRUSTEES. 
 
 46. A trustee who has accepted the trust cannot afterwards 
 
 renounce it except (a) with the permission 
 
 Trustee cannot re- of a principal Civil Court-of original juris- 
 nounce after accept- -,. ,. r r ,,. ., ,, , / 
 ance diction, or (6) if the beneficiary is compe- 
 
 tent to contract, with his consent, or (c) 
 by virtue of a special power in the instrument of trust. 
 
 See p. 231. 
 
 47. A trustee cannot delegate his office or any of his duties 
 
 either to a co-trustee or to a stranger, 
 Trustee cannot dele- i / \ A t c i. 
 
 te unless (a) the instrument of trust so pro- 
 
 vides, or (b) the delegation is in the regu- 
 lar course of business, or (c) the delegation is necessary, or (d) the 
 beneficiary, being competent to contract, consents to the delega- 
 tion. 
 
 Explanation. The appointment of an attorney or proxy to do 
 an act merely ministerial, and involving no independent discretion, 
 is not a delegation within the meaning of this section. 
 
 Illustrations, 
 
 (.) A bequeaths certain property to B and C on certain trusts, to be 
 executed by them or the survivor of them or the assigns of such survivor. 
 B dies. C may bequeath the trust-property to D and E upon the trusts 
 of A's will. 
 
 (&.) A is a trustee of certain property with power to sell the same. A 
 may employ an auctioneer to effect the sale. 
 
 (<?.) A bequeaths to 7? fifty houses let at monthly rents in trust to col- 
 lect the rents and pay them to C, B may employ a proper person to col- 
 lect these rents. 
 
 See p. 235. 
 
 48. When there are more trustees than one, all must join in 
 
 the execution of the trust, except where 
 
 act singly ^ tue i nstrumeu ti of trust otherwise pro- 
 
 vides. 
 
 See p. 240. 
 
 49. Where a discretionary power conferred on a trustee is not 
 
 exercised reasonably and in good faith, 
 
 Control of discretion- i , n j u 
 
 ary power suc ^ P ower ma 7 be controlled by a princi- 
 
 pal Civil Court of original jurisdiction. 
 
 See pp. 153 and 242. 
 
 Cl 
 
482 
 
 INDIAN TRUSTS ACT. 
 
 APPDX. 50. la the absence of express directions to the contrary con- 
 
 tained in the instrument of trust, or of a 
 
 Trustee may not contract to the contrary entered into with 
 
 charge for services. , . A i n t A i *.- c 
 
 the beneficiary or the Court at the time of 
 
 accepting the trust, a trustee has no right to remuneration for his 
 trouble, skill and loss of time in executing the trust. 
 
 Nothing in this section applies to any Official Trustee, Admi- 
 nistrator-General, Public Curator, or person holding a certificate 
 of administration. 
 
 See p. 242. 
 
 Trustee may not use 
 trust-property for his 
 own profit. 
 
 See p. 250. 
 
 52. 
 
 51. A trustee may not use or deal 
 with the trust-property for his own profit 
 or for any other purpose unconnected with 
 the trust. 
 
 No trustee whose duty it is to sell trust-property, and no 
 agent employed by such trustee for the 
 P"P" f *. sale, may, directly or in- 
 directly, buy the same or any interest 
 therein, on his own account or as agent for a third person. 
 
 See p. 256. 
 
 53. No trustee, and no person who has recently ceased to be 
 a trustee, may, without the permission of a 
 
 Trustee may not buy pr j n cipal Civil Court of original iurisdic- 
 beneficiary s interest f. f 
 without permission. tion, buy or become mortgagee or lessee 
 
 of the trust-property or any part thereof ; 
 
 and such permission shall not be given unless the proposed pur- 
 chase, mortgage or lease is manifestly for the advantage of the 
 beneficiary. 
 
 And no trustee whose duty it is to buy or to obtain a mort- 
 gage or lease of particular property for the 
 Trustee for purchase. | e eficiary may &, y u> or an / pa / fc there . 
 
 of, or obtain a mortgage or lease of it or any part thereof, for 
 himself. 
 
 See pp. 261 and 289. 
 
 A trustee or co-trustee whose duty it is to invest trust- 
 money on mortgage or personal security 
 must not invest it on a mortgage by, or on 
 the personal security of, himself or one of 
 his co-trustees. 
 
 54. 
 
 Co-trustees may not 
 lend to one of them- 
 selves. 
 
 See p. 265. 
 
ACT ii OF 1882. 483 
 
 CHAPTER VI. APPDX. 
 
 OF THE RIGHTS AND LIABILITIES OF THE BENEFICIARY. 
 
 . The beneficiary has, subject to the provisions of the in- 
 strument of trust, a right to the rents 
 ht and profits of the trust-property. 
 
 See p. 268. 
 
 56. The beneficiary is entitled to have the intention of the 
 Right to specific exe- * uili r of the trust specifically executed to 
 
 cution. the extent of the beneficiary's interest ; 
 
 and, where there is only one beneficiary and he is competent 
 to contract, or where there are several 
 beneficiaries and they are competent to 
 
 5 * i 11 j i 1 
 
 contract, and all of one mind, he or they 
 
 may require the trustee to transfer the trust-property to him or 
 them, or to such person as he or they may direct. 
 
 When property has been transferred or bequeathed for the 
 benefit of a married woman, so that she shall not have power to 
 deprive herself of her beneficial interest, nothing in the second 
 clause of this section applies to such property during her mar- 
 riage. 
 
 Illustrations. 
 
 (r.) Certain Government securities are given to trustees upon trnst to 
 accumulate the interest until A attains the age of 24. and then to trans- 
 fer the gross amount to him. A, on attaining majority, may. as the person 
 exclusively interested in the trust-property, require the trustees to trans- 
 fer it immediately to him. 
 
 (b.) A bequeaths Es. 10.000 to trustees npon trust to purchase an 
 annuity for h, who hns attained his majority, and is otherwise competent 
 to contract. B may claim the Rs. 10,000. 
 
 (c.) A transfers certain property to B. and directs him to sell or invest 
 it for the benefit of C. who is competent to contract. C may elect to 
 take the property in its original character. 
 
 See p. -21 \. 
 
 57. The beneficiary has a right, as against the trustee and all 
 
 persons claiming under him with notice of 
 
 Right to inspect and the trusfc to i nspect an( j take copies of the 
 take copies of mstru- . . \ ,, , ,. 
 
 meiit of trust, accounts, instrument of trust, the documents of 
 & c . title relating solely to the trust-property, 
 
 the accounts of the trust-property and the 
 
 vouchers (if any) by which they are supported, and the cases 
 submitted and opinions taken by the trustee for his guidance iu 
 the discharge of his duty. 
 
 See p. 272. 
 
484 INDIAN TRUSTS ACT. 
 
 APPDX. 58. The beneficiary, if competent to contract, may transfer 
 
 his interest, but subject to the law for the 
 
 Right to transfer be- t ; b j f ag t tl circum _ 
 
 neficial interest. . , . . , 
 
 stances and extent in and to which he may 
 
 dispose of such interest : 
 
 Provided that when property is transferred or bequeathed 
 for the benefit of a married woman, so that she shall not have 
 power to deprive herself of her beneficial interest, nothing in this 
 section shall authorize her to transfer such interest during her 
 marriage. 
 
 See p. 273. 
 
 59. "Where no trustees are appointed or all the trustees die, 
 
 disclaim or are discharged, or where, for 
 
 cuUolof tr'ust. ^^ an y otlier reason ' the exec tion of a trust 
 by the trustee is or becomes impracticable, 
 
 the beneficiary may institute a suit for the execution of the 
 trust, and the trust shall, so far as may be possible, be executed 
 by the Court until the appointment of a trustee or new trustee. 
 
 See p. 282. 
 
 60. The beneficiary has a right (subject to the provisions of 
 
 the instrument of trust) that the trust- 
 
 teeg 1 " property shall be properly protected and 
 
 held and administered by proper persons 
 and by a proper number of such persons. 
 
 Explanation I. The following are not proper persons within 
 the meaning of this section : 
 
 A person domiciled abroad : an alien enemy : a person having 
 an interest inconsistent with that of the beneficiary : a person in 
 insolvent circumstances ; and, unless the personal law of the 
 beneficiary allows otherwise, a married woman and a minor. 
 
 Explanation II. When the administration of the trust in- 
 volves the receipt and custody of money, the number of trustees 
 should be two at least. 
 
 Illustrations. 
 
 (a.) A, one of several beneficiaries, proves that JB. the trustee, has 
 improperly disposed of part of the trust-property, or that the property is 
 in danger from B's being in iasolvent circumstances, or that he is inca- 
 pacitated from acting as trustee. A may obtain a receiver of the trust- 
 property. 
 
 (&.) A bequeaths certain jewels to B in trust for C. B dies during 
 A' s lifetime ; then A dies. C is entitled to have the property conveyed 
 to a trustee for him. 
 
 (c.) A conveys certain property to four trustees in trust for B. Three 
 of the trustees die. B may institute a suit to have three new trustees 
 appointed in the place of the deceased trustees. 
 
ACT II OF 1882. 485 
 
 (/Z.) A conveys certain property to three trustees in trust for 7?. All APPDX. 
 the trustees disclaim. S may institute a suit to have three trustees _ 
 
 appointed in place of the trustees so disclaiming. 
 
 (.) A. a trustee for B, refuses to act, or goes to reside permanently 
 out of British India, or is declared an insolvent, or compounds with his 
 creditors, or suffers a co-trustee to commit a breach of trust. E may in- 
 stitute a suit to have A removed and a new trustee appointed in his room. 
 
 See p. 284. 
 
 61. The beneficiary has a right that his trustee shall be com- 
 
 pelled to perform any particular act of his 
 
 any ^t of duty"^ 6 ^ ut ^ as suc ' l > anc * restramed fr m commit- 
 
 ting any contemplated or probable breach 
 of trust. 
 
 Illustrations. 
 
 (a.) A contracts with B to pay him monthly Rs. 100 for the benefit of 
 C. writes and signs a letter declaring that he will hold in trust for C 
 the money so to be paid. A fails to pay the money in accordance with 
 his contract. C may compel B on a proper indemnity, to allow C to sue 
 on the contract in JJ's name. 
 
 ( b.~) A is trustee of certain land, with a power to sell the same and pay 
 the proceeds to B and C equally. A is about to make an improvident 
 sale of the land. B may sue on behalf of himself and Cfor an injunction 
 to restrain A from making the sale. 
 
 See p. 287. 
 
 62. Where a trustee has wrongfully bought trust-property, 
 
 the beneficiary has a right to have the 
 bv trustee property declared subject to the trust or 
 
 retransferred by the trustee, if it remains 
 
 in his hands unsold, or, if it has been bought from him by any 
 person with notice of the trust, by such person. But in such 
 case the beneficiary must repay the purchase-money paid by the 
 trustee, with interest, and sudi other expenses ( if any) as he has 
 properly incurred in the preservation of the property ; and the 
 trustee or purchaser must (a) account for the nett profits of the 
 property, (b) be charged with an occupation-rent, if he has been 
 in actual possession of the property, and (c} allow the beneficiary 
 to deduct a proportionate part of the purchase-money if the pro- 
 perty has been deteriorated by the acts or omissions of the trustee 
 or purchaser. 
 
 Nothing in this section 
 
 (a) impairs the right of lessees and others who, before the 
 institution of a suit to have the property declared subject to the 
 trust or retransferred, have contracted in good faith with the 
 trustee or purchaser ; or 
 
 (b) entitles the beneficiary to have the property declared sub- 
 ject to the trust or retrausl'erred where he, being competent to 
 
486 INDIAN TRUSTS ACT. 
 
 APPDX. contract, has himself, without coercion or undue influence having 
 
 been brought to bear on him, ratified the sale to the trustee with 
 
 full knowledge of the facts of the case aud of his rights as 
 against the trustee. 
 
 See p. 289. 
 
 63. Where trust-property comes into the hands of a third 
 
 person inconsistently with the trust, the 
 
 Following trust-pro- beneficiary may require him to admit for- 
 Pe intTthe hands of mall - v > or ma y institute a suit for a decla- 
 third persons ; ration, that the property is comprised in 
 
 the trust. 
 Where the trustee has disposed of trust-property, and the 
 
 money or other property which he has 
 
 into that into which , ,1 ? , j i 
 
 it has been converted. received therefor can be traced m his 
 
 hands, or the hands or his legal represen- 
 tative or legatee, the beneficiary has, in respect thereof, rights as 
 nearly as may be the same as his rights in respect of the original 
 trust-property. 
 
 Illustrations. 
 
 (a.) A, a trustee for B of Rs. 10,000, wrongfully invests the Rs. 10,000 
 in the purchase of certain land. B is entitled to the land. 
 
 (>.) A. a trustee, wrongfully purchases land in his own name, partly 
 with his own money, partly with money subject to a trust for B. B is 
 entitled to a charge on the land for the amount of the trust-money so 
 misemployed. 
 
 See p. 291. 
 
 64. Nothing in section sixty-three entitles the beneficiary 
 Saving of rights of to anv ri S ht in respect of property in the 
 
 certain transferrees. hands of 
 
 (a) a transferree in good faith for consideration without having 
 notice of the trust, either when the purchase-money was paid, or 
 when the conveyance was executed, or 
 
 (b) a transferree for consideration from such a transferree. 
 
 A judgment-creditor of the trustee attaching and purchasing 
 trust-property is not a transferree for consideration within the 
 meaning of this section. 
 
 Nothing in section sixty-three applies to money, currency notes 
 and negotiable instruments in the hands of a bona fide holder to 
 whom they have passed in circulation, or shall be deemed to affect 
 the Indian Contract Act, 1872, section 108, or the liability of a 
 person to whom a debt or charge is transferred. 
 
 See p. 291. 
 
ACT ii OF 1882. 487 
 
 65. Where a trustee wrongfully sells or otherwise transfers APPDX. 
 
 trust-property, and afterwards himself 
 
 Acquisition by trustee becomes the owner of the property, the 
 of trust-property wrong- , , . . u 
 
 fully converted. property again becomes subject to the 
 
 trust, notwithstanding any want of notice 
 
 on the part of intervening transferrees in good faith for consider- 
 ation. 
 
 See p. 313. 
 
 6(>. Where the trustee wrongfully mingles the trust-property 
 
 Rio-ht in case of blend- w ith his own, the beneficiary is entitled to 
 
 ed property. a charge on the whole fund for the amount 
 
 due to him. 
 Seep. 314. 
 
 67. If a partner, being a trustee, wrongfully employs trust- 
 property in the business or on the account 
 
 Wrongful employment of the partn ership, no other partner is 
 by partner-trustee of , . ,, ,, r /: i 
 
 trust-property for part- liable therefor in his personal capacity to 
 nership purposes. the beneficiaries, unless he had notice of 
 
 the breach of trust. 
 
 The partners having such notice are jointly and severally liable 
 for the breach of trust. 
 
 Illustrations. 
 
 (rt.) A and B are partners. A dies, having bequeathed all his property 
 to B in trust for Z, and appointed B his sole executor. B, instead of 
 winding up the affairs of the partnership, retains all the assets in the 
 business. Z may compel him. as partner, to account for so much of the 
 profits as are derived from A's share of the capital. B is also answerable 
 to Z for the improper employment of A's assets. 
 
 (&.) A. a trader, bequeaths his property to B in trust for C. appoints B 
 his sole executor, and dies. B enters into partnership with X and Y in 
 the same trade, and employs A'x assets in the partnership-business. B 
 gives an indemnity to X and Y against the claims of C. Here X and Y 
 are jointly liable with B to C as having knowingly become parties to the 
 breach of trust committed by B. 
 
 See p. 319. 
 
 68. Where one of several beneficiaries- 
 Liability of benefi- (a) joins in committing a breach of trust, 
 ciary joining in breach or 
 
 of trust. (i) knowingly obtains any advantage 
 
 therefrom, without the consent of the other beneficiaries, or 
 
 (c) becomes aware of a breach of trust committed or intended 
 to be committed, and either actually conceals it, or does not 
 within a reasonable time take proper steps to protect the interests 
 of the other beneficiaries, or 
 
 (d) has deceived the trustee, and thereby induced him to com- 
 mit a breach of trust, 
 
488 INDIAN TRUSTS ACT. 
 
 APPDX. the other beneficiaries are entitled to have all his beneficial 
 
 - interest impounded as against him and all who claim under him 
 
 (otherwise than as transferees for consideration without notice 
 
 of the breach) until the loss caused by the breach has been com- 
 
 pensated. 
 
 When property has been transferred or bequeathed for the 
 benefit of a married woman, so that she shall not have power to 
 deprive herself of her beneficial interest, nothing in this section 
 applies to such property during her marriage. 
 
 See p. 322. 
 
 69. Every person to whom a beneficiary 
 
 1.4. A v U-T4-- transfers his interest has the rights, and 
 Rights and liabilities . . . ,. ,.,.,. f *, 
 
 of beneficiary's trans- 1S subject to the liabilities, of the bene- 
 ferree. ficiary in respect of such interest at the 
 
 date of the transfer. 
 
 See p. 324. 
 
 CHAPTER VII. 
 OF VACATING THE OFFICE OF TRUSTEE. 
 
 7 Th * offi f * t>" is vacated 
 
 Office how vacated. , , .. 
 
 by his death or by his discharge from his 
 
 office. 
 See p. 326. 
 
 71 A tustee ma be ^chared from 
 
 Discharge of trustee. , . r 
 
 uis office only as follows : 
 
 (a) by the extinction of the trust ; 
 
 (b) by the completion of his duties under the trust; 
 
 (c) by such means as may be prescribed by the instrument 
 of trust ; 
 
 (d) by appointment under this Act of a new trustee in his 
 place ; 
 
 (e) by consent of himself and the beneficiary, or, where there 
 are more beneficiaries than one, all the beneficiaries being com- 
 petent to contract, or 
 
 (/) by the Court to which a petition for his discharge is pre- 
 sented under this Act. 
 
 See p. 327. 
 
 72. Notwithstanding the provisions of section eleven, every 
 Petition to be dis- ^sfee may apply by petition to a prin- 
 
 charged from trust. cipal L/ivil Court of original jurisdiction 
 
 to be discharged from his office ; and if 
 
 the Court finds that there is sufficient reason for such discharge, 
 
ACT ii OF 1382. 489 
 
 p 
 
 it may discharge him accordingly, and direct his costs to be paid APPDX. 
 
 out of the trust-property. But. where there is no such reason, 
 
 the Court shall not discharge him, unless a proper person can 
 be found to take his place. 
 
 See p. 330. 
 
 73. Whenever any person appointed a trustee disclaims, or 
 
 any trustee, either original or substituted, 
 
 Appointment of new j. ;. ,- .*__ 
 
 trustees on death, &c. dies > or 1S for a continuous period of six 
 
 months absent from British India, or leaves 
 
 British India for the purpose of residing abroad, or is declared 
 an insolvent, or desires to be discharged from the trust, or refuses 
 or becomes, in the opinion of a principal Civil Court of original 
 jurisdiction, unfit or personally incapable to act in the trust, or 
 accepts an inconsistent trust, a new trustee may be appointed in 
 his place by 
 
 (a) the person nominated for that purpose by the instrument 
 of trust (if any), or 
 
 (b) if there be no such person, or no such person able and will- 
 ing to act, the author of the trust, if he be alive and competent to 
 contract, or the surviving or continuing trustees or trustee for the 
 time being, or legal representative of the last surviving and con- 
 tinuing trustee, or (with the consent of the Court) the retiring 
 trustees, if they all retire simultaneously, or ^with the like con- 
 sent) the last retiring trustee. 
 
 Every such appointment shall be by writing under the hand of 
 the person making it. 
 
 On an appointment of a new trustee the number of trustees 
 may be increased. 
 
 The Official Trustee may, with his consent and by the order of 
 the Court, be appointed under this section, in any case in which 
 only one trustee is to be appointed and such trustee is to be the 
 sole trustee. 
 
 The provisions of this section relative to a trustee who is dead 
 include the case of a person nominated trustee in a will but dying 
 before the testator, and those relative to a continuing trustee 
 include a refusing or retiring trustee if willing to act in the 
 execution of the power. 
 
 Compare Act XXVII of 1866, s. 34, ante, p. 433 ; and see p. 333. 
 
 74. Whenever any such vacancy or disqualification occurs, and 
 . it is found impracticable to appoint a new 
 
 Co A P. po trustee under section seventy-three, the 
 
 beneficiary may, without instituting a suit, 
 
 apply by petition to a principal Civil Court of original jurisdiction 
 for the appointment of a trustee or a new trustee, and the Court 
 may appoint a trustee or a new trustee accordingly. 
 
 62 
 
490 INDIAN TRUSTS ACT. 
 
 APPDX. In appointing new trustees, the Court shall have regard 
 (a) to the wishes of the author of the 
 
 Rule for selecting t rus t as expressed in or to be inferred 
 
 from the instrument of trust ; ( b) to the 
 
 wishes of the person, if any, empowered to appoint new trustees ; 
 (c) to the question whether the appointment will promote or 
 impede the execution of the trust ; and (d) where there are more 
 beneficiaries than one, to the interests of all such beneficiaries. 
 
 Compare Act XXVII of 1866. s. 35, ante, p. 434 ; and as to selecting 
 new trustees, see p. 285. 
 
 75. Whenever any new trustee is appointed under section 
 
 seventy-three or section seventy-four, all 
 
 Vesting of trust-pro- the trust^property for the time being 
 perty in new trustees. L j A i 
 
 vested in the surviving or continuing 
 
 trustees or trustee, or in the legal representative of any trustee, 
 shall become vested in such new trustee, either solely or jointly 
 with the surviving or continuing trustees or trustee as the case 
 may require. 
 
 Every new trustee so appointed, and every trustee appointed by 
 
 a Court either before or after the passing 
 Power* of new trus- o f this Act, shall have the same powers, 
 
 authorities and discretions, and shall in 
 
 all respects act, as if he had been originally nominated a trustee 
 by the author of the trust. 
 
 Compare Act XXVII of 1866, s. 36, ante, p. 436. 
 
 76. On the death or discharge of one of several co-trustees, 
 
 _ . , the trust survives and the trust-property 
 
 Survival of trust. .-> .-, i ^i 
 
 passes to the others, unless the instrument 
 
 of trust expressly declares otherwise. 
 See p. 335. 
 
 CHAPTER VIII. 
 OF THE EXTINCTION OF TRUSTS. 
 
 gJshSl. W eXn " 77 ' A trust is extinguished 
 
 (a) when its purpose is completely fulfilled ; or 
 
 (b) when its purpose becomes unlawful ; or 
 
 (c) when the fulfilment of its purpose becomes impossible bj 
 destruction of the trust-property or otherwise ; or 
 
 (d) when the trust, being revocable, is expressly revoked. 
 See p. 335. 
 
ACT II OF 1882. 491 
 
 78. A trust created by will may be APPDX. 
 Revocation of trust. i-ji.ii i c it. 
 
 revoked at the pleasure of the testator. 
 
 A trust otherwise created can be revoked only 
 
 (a) where all the beneficiaries are competent to contract by 
 their consent ; 
 
 (b) where the trust has been declared by a non-testamentary 
 instrument or by word of month in exercise of a power of revoca- 
 tion expressly reserved to the author of the trust; or 
 
 (c) where the trust is for the payment of the debts of the 
 author of the trust, and has not been communicated to the 
 creditors at the pleasure of the author of the trust. 
 
 Illustration. 
 
 A conveys property to B in trust to sell the same, and pay out of the 
 proceeds the claim of A 1 * creditors. A reserves no power of revocation. 
 If no communication has been made to the creditors. A may revoke the 
 trust. But if the creditors are parties to the arrangement, the trust 
 cannot bo revoked without their consent. 
 
 See pi-. 53, 6876 and 336. 
 
 79. No trust can be revoked by the 
 Revocation not to de- aut h or o f t } ie trust so as to defeat or preju- 
 
 f eat what trustees have j , , , , , j i j 
 
 dulv done what the trustees may have duly dona 
 
 in execution of the trust. 
 
 See Wilding v. Richards, 1 Coll., 655. 
 
 CHAPTER IX.* 
 OF CERTAIN OBLIGATIONS IN THE NATURE OF TRUSTS. 
 
 Where obligation in 80 - An obligation in the nature of a 
 nature of trust is creat- trust is created in the following cases. 
 ed. 
 
 81. Where the owner of property transfers or bequeaths it, 
 
 and it cannot be inferred consistently with. 
 
 Where it does not ap- the attendant circumstances that he inten- 
 
 beneficial interest. therein, the transferee or legatee must hold 
 
 such property for the benefit of the owner 
 or his legal representative. 
 
 Illustrations. 
 
 (a.) A conveys land to B without consideration, and declares no trust 
 of any part. It cannot, consistently with the circumstances under which 
 
 * This Chapter deals with implied, resulting, and constructive trusts. 
 As to these, see Lectures III and IV. 
 
492 INDIAN TRUSTS ACT. 
 
 APPDX tne transfer is made, be inferred that A intended to transfer the bene- 
 ficial interest in the land. B holds the land for the benefit of A. 
 
 (b.~) A conveys to B two fields, Fand Z, and declares a trust of 3', but 
 gays nothing about Z. It cannot, consistently with the circumstances 
 under which the transfer is made, be inferred that A intended to transfer 
 the beneficial interest in Z. B holds Z for the benefit of A. 
 
 (c.) A transfers certain stock belonging to him into the joint names of 
 himself and ,8. It cannot, consistently with the circumstances under 
 which the transfer is made, be inferred that A intended to transfer the 
 beneficial interest in the stock during his life. A and B hold the stock 
 for the benefit of A during his life. 
 
 (d.) A makes a gift of certain land to his wife B. She takes the bene- 
 ficial interest in the land free from any trust in favour of A, for it may 
 be inferred from the circumstances that the gift was for B's benefit. 
 
 82. Where property is transferred to one person for a 
 
 consideration paid or provided by another 
 
 Transfer to one for person anc i j t appears that such other 
 consideration paid by , . , , . F < 
 
 another person did not intend to pay or provide 
 
 such consideration for the benefit of the 
 
 transferree, the transferree must hold the property for the benefit 
 of the person paying or providing the consideration. 
 
 Nothing in this section shall be deemed to affect the Code of 
 Civil Procedure, section 317, or Act No. XI of 1859 (to improve 
 the law relating to sales of land for arrears of revenue in the Lower 
 Provinces under the Bengal Presidency), section 36. 
 
 83. Where a trust is incapable of being executed, or where the 
 
 trust is completely executed without ex- 
 Trust incapable of hausting the trust-property, the trustee, in 
 execution or executed th absence f direction to the contrary, 
 without exhausting '' 
 
 trust-property. must hold the trust-property, or so much 
 
 thereof as is unexhausted, for tne benefit 
 of the author of the trust or his legal representative. 
 
 Illustrations. 
 
 (a.) A conveys certain land to B 
 
 " upon trust," and no trust is declared ; or 
 
 " upon trust to be thereafter declared," and no such declaration 
 
 is ever made ; or 
 
 upon trusts that are too vague to be executed ; or 
 upon trusts that become incapable of taking effect : or 
 " in trust for C," and C renounces his interest under the trust. 
 In each of these cases B holds the land for the benefit of A. 
 (i.) A transfers Rs. 10.000 in the four per cents, to #, in trust to pay 
 the interest annually accruing due to C for her life. A dies. Then C 
 dies. B holds the fund for the benefit of A 1 .? legal representative. 
 
 (c.) A conveys land to B upon trust to sell it and apply one moiety of 
 the proceeds for certain charitable purposes, and the other for the main- 
 tenance of the worship of an idol. B sells the land, but the charitable 
 purposes wholly fail, and the maintenance of the worship does not 
 exhaust the second moiety of the proceeds. B holds the first moiety and 
 the part unapplied of the second moiety for the benefit of A or his legal 
 representative. 
 
ACT ii OF 1882. 493 
 
 (rf.) A bequeaths Rs. 10,000 to B, to be laid ont in buying 1 land to be APPDX. 
 conveyed for purposes which either wholly or partially fail to take effect. _ 
 B holds for the benefit of A 1 * legal representative the undisposed of in- 
 terest in the money or laud if purchased. 
 
 84. Where the owner of property transfers it to another for 
 
 _, . . . , an illegal purpose, and such purpose is not 
 Transfer for illegal . 
 
 purpose. carried into execution, or the transferror is 
 
 not as guilty as the transferree, or the effect 
 
 of permitting the transferree to retain the property might be to 
 defeat the provisions of any law, the transferree must hold the 
 property for the benefit of the transferror. 
 
 85. Where a testator bequeaths certain property upon trust, 
 
 and the purpose of the trust appears on 
 Bequest for illegal ,, f r - \ , .,, i r i 
 
 ,, f - , .,, 
 
 purpose. the * ace ' tlie w "' to 
 
 during the testator's lifetime the legatee 
 
 agrees with him to apply the property for an unlawful purpose, 
 the legatee must hold the property for the benefit of the testator's 
 legal representative. 
 
 Where property is bequeathed, and the 
 
 Bequest of which re- revocation of the bequest is prevented by 
 vocation is prevented coercion, the legatee must hold the pro- 
 by coercion. p ertv f or tne benefit of the testator's legal 
 
 representative. 
 
 86. Where property is transferred in pursuance of a contract 
 
 which is liable to rescission, or induced by 
 
 Transfer pursuant to f rau( j or mistake, the transferree must, on 
 rescindable contract. veceiving notice to that effectj hold the 
 
 property for the benefit of the transferror, subject to repayment 
 by the latter of the consideration actually paid. 
 
 87. Where a debtor becomes the executor or other legal 
 
 representative of his creditor, he must 
 
 Debtor becoming ere- hold the debt for the benefit of the per- 
 ditors representative. ^ interested therein> 
 
 88. Where a trustee, executor, partner, agent, director of a 
 
 company, legal adviser, or other person 
 ^ boiind in a fiduciary character to protect 
 
 the interests of another person, by avail- 
 ing himself of his character, gains for himself any pecuniary 
 advantage, or where any person so bound enters into any dealings 
 under circumstances in which his own interests are, or may be, 
 adverse to those of such other person and thereby gains for him- 
 self a pecuniary advantage, he must hold for the benefit of such 
 other person the advantage so gained. 
 
 Illustrations. 
 
 (a ) A, an executor, buys at an undervalue from B. a legatee, his claim 
 under the will. H is ignorant of the value of the bequest. A must hold 
 for the benefit of B the difference between the price and value. 
 
494 INDIAN TRUSTS ACT. 
 
 APPDX. (&) A, a trustee, uses the trust-property for the purpose of his own 
 business. A holds for the benefit of his beneficiary the profits arising 
 from such user. 
 
 (c.) A, a trustee, retires from his trust in consideration of his successor 
 paying him a sum of money. A holds such money for the benefit of his 
 beneficiary. 
 
 (d.) A, a partner, buys land in his own name wit,h funds belonging to 
 the partnership. A holds such land for the benefit of the partnership. 
 
 (c.) A, a partner, employed on behalf of himself and his co-partners in 
 negotiating the terms of a lease, clandestinely stipulates with the lessor 
 for payment to himself of a lakh of rupees. A holds the lakh for the 
 benefit of the partnership. 
 
 (/.) A and B are partners. A dies. S, instead of winding up the 
 affairs of the partnership, retains all the assets in the business. B must 
 account to An legal representative for the profits arising from As share 
 of the capital. 
 
 (g.) A, an agent employed to obtain a lease for B, obtains the lease for 
 hfmself . A holds the lease for the benefit of B. 
 
 (/;.) A. a guardian, buys up for himself incumbrances on his ward B'g 
 estate at an undervalue. A holds for the benefit of B the incumbrances 
 BO bought, and can only charge him with what he has actually paid. 
 
 89. Where, by the exercise of undue influence, any advantage 
 
 is gained in derogation of the interests of 
 
 Advantage gained by ano ther, the person gaining such advan- 
 exercise of undue mnu- /, . , . ... ,. 
 
 g nce tage without consideration, or with notice 
 
 that such influence has been exercised, 
 
 must hold the advantage for the benefit of the person whose inter- 
 ests have been so prejudiced. 
 
 90. Where a tenant-for-life, co-owner, mortgagee or other 
 
 . ,, qualified owner of any property, by avail- 
 qualified owns 7 ing himself of his position as such, gains 
 an advantage in derogation of the rights 
 
 of the other persons interested in the property, or where any 
 such owner, as representing all persons interested in such pro- 
 perty, gains any advantage, he must hold, for the benefit of all 
 persons so interested, the advantage so gained, but subject to 
 repayment by such persons of their due share of the expenses 
 properly incurred, and to an indemnity by the same persons 
 against liabilities properly contracted in gaining such advantage. 
 
 Illustrations. 
 
 (a.) A, the tenant-for-life of leasehold property, renews the lease in hia 
 own name and for his own benefit. A holds the renewed lease for the 
 benefit of all those interested in the old lease. 
 
 (ft.) A village belongs to a Hindu family. A. one of its members, pays 
 nazrana to Government, and thereby procures his name to be entered as 
 the inamdar of the village. A holds the village for the benefit of himself 
 and the other members. 
 
 (c.) A mortgages land to B, who enters into possession. B allows the 
 Government revenue to fall into arrear with a view to the land being put 
 up for sale and his becoming himself the purchaser of it. The land is 
 accordingly sold to B. Subject to the repayment of the amount due on 
 the mortgage, and of his expenses properly incurred as mortgagee, B holds 
 the land for the benefit of A. 
 
ACT ii OF 1882. 495 
 
 91. Where a person acquires property with notice that another APPDX. 
 
 person has entered into an existing con- 
 
 Property acquired tract affecting that property, of which 
 existms specific performance conld be enforced, 
 the former must hold the property for the 
 benefit of the latter to the extent necessary to give effect to the 
 contract. 
 
 92. Where a person contracts to buy property to be held on 
 
 trust for certain beneficiaries, and buys the 
 
 Purchase by person prO p e rty accordingly, he must hold the 
 contracting to buy pro- ^ , . ,, . , fif f f v PTtpnt 
 
 perty to be held on trust. P r P ert y 
 
 necessary to give effect to the contract. 
 
 93. Where creditors compound the debts due to them, and 
 
 one of such creditors, by a secret arrange- 
 
 Advantagre secretly ment with the debtor, gains an undue 
 earned bv one of several , , . j., , 
 
 compounding creditors, advantage over his co-creditors, he must 
 
 hold for the benefit of such creditors the 
 
 advantage so gained. 
 
 94. In any case not coming within the scope of any of the 
 
 preceding sections, where there is no trust, 
 
 Constructive trusts in but the rgon having possession of pro- 
 cnses not expressly pro- i ' , ,, , , ~ . , . , 
 
 vided for perty has not the whole beneficial interest 
 
 therein, he must hold the property for the 
 
 benefit of the persons having such interest, or the residue thereof 
 (as the case may be), to the extent necessary to satisfy their just 
 demands. 
 
 Illustrations. 
 
 (a.) A. an executor, distributes the assets of his testator B to the lega- 
 tees without having paid the whole of 5'# debts. The legatees hold for 
 the benefit of B's creditors, to the extent necessary to satisfy their just 
 demands, the assets so distributed. 
 
 (&.) A by mistake assumes the character of a trustee for B, and under 
 colour of the trust receives certain moneys. B may compel him to 
 account for such moneys. 
 
 (<.) A makes a gift of a lakh of rupees to B. reserving to himself, with 
 B'* assent, power to revoke at pleasure the gift as to Rs. 10.000. The 
 gift is void as to Rs. 10,000, and B holds that sum for the benefit of A. 
 
 95. The person holding property in accordance with any of 
 
 the preceding sections of this chapter must, 
 
 Obligor 3 duties, liabi- f e .-> j A - 
 
 lities and disabilities. so far as m{lv be > P erform the s ame duties, 
 
 and is subject, so far as may be, to the 
 
 same liabilities and disabilities, as if he were a trustee of the 
 property for the person for whose benefit he holds it : 
 
 Provided that (a) where he rightfully cultivates the property 
 or employs it in trade or business, he is entitled to reasonable 
 remuneration for his trouble, skill and loss of time in such culti- 
 vation or employment ; and (b) where he holds the property by 
 
496 
 
 INDIAN TRUSTS ACT. 
 
 virtue of a contract with the person for whose benefit he holds it, 
 or with any one through whom such person claims, he may, with- 
 out the permission of the Court, buy or become lessee or mort- 
 gagee of the property or any part thereof. 
 
 96. Nothing contained in this chapter shall impair the rights 
 . of transferees in good faith for considera- 
 
 purchasers. tion > or create an obligation in evasion of 
 any law for the time being in torce. 
 
 THE SCHEDULE. 
 
 STATUTE. 
 
 Year and chapter. 
 
 Short title. 
 
 Extent of repeal. 
 
 5}9 Car. II, c. 3 
 
 The Statute of Frauds. 
 
 Sections 7, 8, 9, 10 
 and 11. 
 
 ACTS OF THE GOVERNOR GENERAL IN COUNCIL. 
 
 Number and year. 
 
 Short title. 
 
 Extent of repeal. 
 
 XXVIII of 1866 
 
 The Trufitees' and Mort- 
 gagees' Powers Act, 
 18G6. 
 
 I of 1877 
 
 The Specific Relief Act, 
 1877. 
 
 Sections 2. 3.4. 5. 32, 
 33,34, 35, 36, & 37. 
 
 In sections 39 and 43 
 the word trustee ' 
 wherever it occurs ; 
 and in section 43 
 the words ' manage- 
 ment or' and ' the 
 trust-property or.' 
 
 In section 12 the first 
 illustration. 
 
INDEX. 
 
 ABROAD, 
 
 c. q t. who is must be party to suit, 344. 
 
 immoveable property . trust of, 3%. 
 
 moveable property . trust of. 26. 
 
 payment to c. q. t. who is . 207. 
 
 trustee does not become incapable to act by going, 330. 
 
 who is not necessary party to suit, 344. 
 
 See TRUSTS ACT, 1882. 
 
 ABSCOND, security from trustee about to, 182. 
 ABSENCE 
 
 of trustee, Court may make order under Trustee Act in. 441. 
 
 beyond jurisdiction, ground for appoiutmentof receiver,340, 
 See TRUSTS ACT, 1882. 
 
 ABSOLUTE INTEREST in trust estate, when c. q. t. entitled to, 271. 
 ABSOLUTE TRUST for sale does not authorize mortgage, 170. 
 ABSTRACT of title, conditions of sale as to, 224. 
 ACCEPTANCE OF TRUST, 
 by acting as agent. 121. 
 
 executor of an executor, 121. 
 how effected. 220, 467. 
 liability of trustee after, 123. 
 parol evidence of, 122. 
 partial, 122. 
 recitals, 122. 
 trustee also executor. 121. 
 
 See TUUSTS ACT, 1882. 
 
 ACCIDENT, when trustee liable for loss by, 183. 
 ACCOUNT. 
 
 by agent of trustee. 109. 
 trustee of charity. 364. 
 c. q. t. has right to, 157. 
 copies of. 158. 
 
 costs of inability or refusal to, 158. 
 destruction of books of, 1 57. 
 duty of agent to keep, 157. 
 trustee to keep, 157. 
 
 under Act XX of 1863, 407. 
 Official Trustee to keep. 411. 
 effect of negligence in not keeping, 214. 
 estoppel of c. q. t. by settled. 247. 
 good faith of trustee considered in taking, 158. 
 inspection of, 158. 
 liability of managing member of joint Hindu family to, 158. 
 
 trustee to for rents, 268. 
 
 of mesne profits, by trustee renewing lease, 109. 
 of public funds, no suit lies for, 217. 
 production of books of, 157. 
 right of trustee to settlement of, 219. 
 trustee mixing those of trust-estate with his own. 157. 
 See TRUSTS ACT, 1882. 
 
 63 
 
498 INDEX. 
 
 ACCUMULATION, 
 
 liability of trustee for not following directions for, 184. 
 of income when applicable for future maintenance, 226. 
 trust for. 38. 
 
 See TRUSTS ACT, 1882. 
 
 ACKNOWLEDGMENT of debt by one trustee, 241. 
 
 ACQUIESCENCE, 
 
 in breach of trust, 190. 
 
 accepting portion of claim not. 191. 
 
 delay on part of c. q. t. when it amounts to, 191. 
 
 onus of proof of, 191. 
 
 purchase by trustee of trust-property, 261. 
 
 sale by benamidar. 103. 
 
 manager of joint Hindu family, 307. 
 in voluntary gifts. 118. 
 
 or settlement. 72. 
 
 See TRUSTS ACT, 1882. 
 
 ACQUISITION by trustee of trust-property wrongfully converted, 313. 
 
 See TuusTa ACT, 1882. 
 ACTIONS, 
 
 duty of trustee to bring and defend, 137. 
 
 to restrain waste, 142. 
 
 ADMINISTRATION of trust, suit for, 217. 
 
 ADMINISTRATOR, 
 
 liability of, as to rents, etc., 458. 
 to pay interest. 313. 
 may not purchase assets, 265. 
 petition for advice of High Court by, 459. 
 when necessary party to suit, 344. 
 
 ADMINISTRATOR-GENERAL, remuneration of, 250. 
 See TRUSTS ACT, 1882. 
 
 ADMISSION of receipt of trust-fund by trustee, 338. 
 
 ADVANCEMENT, 
 
 application of trust-fund for, 227. 
 evidence to rebut presumption of, 94. 
 
 ADVANCES, 
 
 interest on, 21 6. 
 
 right of trustee to be reimbursed for, 214. 
 
 suit to recover, 216. 
 
 ADVERSE TITLE, trustee cannot set up, 155. 
 See TRUSTS ACT, 1882. 
 
 ADVERTISING, duty of trustee for sale as to, 108. 223. 
 
 ADVICE, 
 
 donor should have independent. 117. 
 of c. g. t. when trustee should apply for, 220. 
 counsel, sec COUNSEL. 
 Court, petition for, 218. 
 
 under Religious Societies Act, 463. 
 
 Trustees' and Mortgagees' Act, 459. 
 See TRUSTS ACT, 1882. 
 
INDEX. 499 
 
 ADVOCATE-GENERAL when necessary party to suit relating to 
 charity, 3(53. 
 
 AFFIDAVITS, 
 
 not to be used on petition for advice of Court, 219. 
 of fitness of new trustee, 331. 
 
 AGENT, 
 
 acceptance of trust by acting as. 121 . 
 authority from c. q. t. to pay trust-money to, 179. 
 becoming trustee may not profit. 254. 
 
 duty of to keep accounts, 157. 
 
 has no lien for expenses. 215. 
 
 liability of trustee for acts of, 140, 184, 235. 
 
 may not purchase trust-estate. 260. 
 
 not entitled to receive purchase-money, 229. 
 
 notice of equitable assignment to, 280. 
 
 payment to, 240. 
 
 remuneration of, 243. 249. 
 
 right of trustee to be remunerated for expenses of, 21 2. 
 
 reimbursed for damages caused by, 216. 
 to whom liable, 240. 
 trustee disclaiming may act as, 134. 
 when considered constructive trustee, 107, 109, 184. 
 when responsible for loss, 184. 
 See TRUSTS ACT, 1882. 
 
 A JMERE, Minors' Act in, 228. 
 
 ALIEN, 
 
 creation of trust by, 126. 
 may be c. q. t., 127. 
 trustee. 129. 
 See TliUSTS ACT, 1882. 
 
 ALIENATION, 
 
 by benamidar, 103. 
 
 by c. q. t. of equitable interest, 273. 
 
 assignee takes subject to all equities, 274. 
 
 conveyance how made, 274. 
 
 description of property, 278. 
 
 equities, assignee takes subject to all, 274. 
 
 iucumbrances, inquiries as to. 273. 
 
 married woman cannot alienate property settled to separate 
 
 use. 274. 
 
 mortgage, may be by way of, 277. 
 notice of equitable title, 273. 
 to trustees to be given, 276. 
 what is sufficient, 279. 
 See NOTICE. 
 priorities. 276, 281. 
 
 set-off, assignee takes subject to rights of, 274. 
 stop order, 281. 
 
 suit by purchaser for conveyance, 273. 
 trustee cannot interfere, 273. 
 
 liability of. for loss after notice, 273. 
 by Hindu widow, 147. 
 of charity estates, 367. 
 
 property devoted to idol, 374. 
 wuqf property, 385 7. 
 restriction on, 37, 40. 
 
500 INDEX. 
 
 ALLOWANCE, 
 
 to partner for carrying on business, 243. 
 trustees, 243. 
 
 for outlay when ordered to reconvey, 290. 
 See REMUNERATION. 
 
 ALMSHOUSE, trust for, 353, 
 ALTAMGHA, effect of use of word. 383. 
 ALTERING SCflEME OF CHARITY, 358. 
 
 APPEAL, 
 
 from order on petition for advice, 218. 
 is at trustee's risk, 217. 
 
 APPLICATION OF PURCHASE-MONEY, 
 
 liability of purchaser to see to, 228. 
 
 agent, payment to, will not discharge. 229. 
 charge of debts releases liability. 230. 
 
 in case of purchaser from Hindu devisee, 232. 
 notice of breach of trust, effect of. 231. 
 on purchase under power of sale. 171. 
 solicitor, payment to, will not discharge. 229. 
 to urhom purchase-money should be paid. 229. 
 under Fines and Recoveries Act. 229. 
 
 Trustees' and Mortgagees' Powers Act, 229, 446, 453. 
 
 APPOINTMENT OF NEW TRUSTEE, 
 by Court, 330. 
 
 affidavits of fitness, 331. 
 
 costs of suit for. 332. 
 
 discharge of representatives of deceased trustee, 333. 
 
 executor, discharge of. 333. 
 
 grounds for appointment. 331, 333. 
 
 Official Trustee when appointed, 332, 409. 
 
 rules for selection of new trustees, 285. 
 
 suit necessary, 284. 331. 
 
 Trustees' and Mortgagees' Powers Act, 333, 454. 
 
 where property lost, 332. 
 
 whether retiring trustee must appoint successor, 331. 
 
 See TRUSTS ACT, 1882. 
 of charity, 363, 365. 
 under powers in instrument, 327. 
 
 abroad, trustee does not become incapable to act by going, 330. 
 
 becoming ' unfit ' or ' incapable to act,' 329. 
 
 breach of trust, when retiring trustee liable for, 330. 
 
 c. q. t. may be appointed, 329. 
 
 ' declining to act.' 328. 
 
 effect of assignment by executors on, 123. 
 
 exercise of power of. 329. 
 
 for purpose of committing breach of trust, 330. 
 
 jurisdiction, new trustee must be in, 330. 
 
 number of trustees, 328. 
 
 payment into Court on retiring, 328. 
 
 ' refusing to act,' what is, 328. 
 
 retire, payment to trustee to, 330. 
 
 ' retiring from trust,' what is. 328. 
 
 to aid in distributing trust- fund. 176. 
 
 trustee dying in lifetime of settlor, 328. 
 
 stamp on transfer, 330. 
 
 See NEW TRUSTEES ; TRUSTS ACT, 1882. 
 
INDEX. 501 
 
 APPOINTMENT OF NEW TRUSTEE (continued). 
 under Religious Endowments Act, 399. 
 Religious Societies Act. 461. 
 Trustees' and Mortgagees' Powers Act, 454. 
 See TRUSTS ACT, 1882. 
 
 APPOINTMENT OF RECEIVER, 339. 
 discharge of, 341. 
 duty of, to keep accounts. 157. 
 
 grounds for : bankruptcy, drunkenness, insolvency, m isapplication 
 of assets, 340 
 
 poverty not, 340. 
 liability of. to pay interest, 313. 
 remuneration of, 243. 
 sureties required on, 340. 
 
 under Trustees' and Mortgagees' Powers Act, 447. 
 who may apply for , 340. 
 where waste, 147. 
 
 APPORTIONMENT 
 
 of fund between legatees and charities. 360. 
 
 profits of trust-property employed in trust. 317. 
 
 APPROPRIATION OF LEGACY, when trustee may take steps for, 220. 
 ARREST of trustee about to abscond, 182. 
 ASSAM, Minors' Act in, 228. 
 ASSENT to creditor's deed, 75. 
 
 ASSETS. 
 
 acceptance of trust by interfering with, 121. 
 distribution of, 459. 
 time for realizing, 173. 
 
 ASSIGNEE, 
 
 of equitable interest takes subject to all equities. 274, 324. 
 
 insolvent neglecting to pay dividends liable to pay interest, 166, 
 
 313. 
 reversionary heir cannot sue to restrain Hindu widow from 
 
 committing waste, 148. 
 
 trustee cannot appoint new trustee under power, 329. 
 purchase of insolvent's estate by, 264. 
 
 ASSIGNMENT, 
 
 by executors on appointment of new trustees, effect of, 123. 
 for purpose of defrauding creditors. 60. 
 of choae-in-aetion subject to trust, 58. 
 equitable interest, 56. 
 See ALIENATION. 
 half -pay, 35. 
 renewed lease, 109. 
 
 ATTORNEY, 
 
 delegation of ministerial acts to, 240. 
 
 See TRUSTS ACT. 1882. 
 employment of, to invest. 236. 
 setting aside gift to. by client, 114. 
 
 See PARTNER; REMUNERATION; SOLICITOB. 
 when constructive trustee, 110. 
 
 Sec SOLICITOR. 
 
502 INDEX. 
 
 AUCTION, when trustee may sell by, 222, 444. 
 See TRUSTS ACT, 1882. 
 
 AUCTIONEER, 
 
 if trustee, may not profit from office, 255. 
 remuneration of, if mortgagee, 243. 
 
 AUTHOR OF TRUST, 
 
 definition of, 18. 
 
 in Trust Act, 405. 
 delegation authorized by, 238. 
 remuneration of trustee may be fixed by, 247. 
 who may be, 124. 
 
 AUTHORITY from c. q. t. to pay trust-money to agent, 179. 
 
 AUTHORITY OF TRUSTEE generally, 219. 
 to appropriate legacy. 220. 
 buy in at sale 224. 
 compound debts. 222. 
 cut decaying timber. 220. 
 
 exercise discretionary powers of bond, fide proprietor, 219. 
 insure, 221. 
 maintain c. q. t. though adult, 221. 
 
 infant c. q. t., 226. 
 pay barred debt. 222. 
 release debt. 222. 
 repair, 221. 
 
 sell by private contract or public auction, 222. 
 vary investments, 225. 
 
 BADGES OF FRAUD, 117. 
 
 BAILIFF, right of trustee to be reimbursed expenses of, 212. 
 
 BANKER. 
 
 deposit of moveable property, securities, or money with, 1 40. 
 liability of trustee for failure of, 140, 142. 
 note-of-hand of, not a sufficient security, 142. 
 
 BANKRUPTCY, 
 
 of trustee ground for appointment of receiver, 340. 
 
 trust to cease on of c.. q. t., 41-45. 
 
 See INSOLVENCY. 
 
 BARRED DEBT, when trustee may pay, 222. 
 
 BARRISTER when a constructive trustee, 110. 
 
 BATHING GHAT, trust for, 14. 
 
 ' BECOMING UNFIT OR INCAPABLE TO ACT,' what is, 329. 
 
 BENAMI TRANSACTIONS. 97. 
 
 assent of benamidar to, unnecessary, 100. 
 
 burden of proof of, 98. 
 
 disputing landlord's title, 100. 
 
 equitable owner may sue benamidar, 104. 
 
 evidence to prove, 101-2. 
 
 fraud, true owner may plead his, 105. 
 
 Mahomedans. benami transactions among. 100. 
 
 notice, purchase with, from benamidar, 104. 
 
 oral evidence to prove, 102. 
 
 pleading, 102. 
 
 purchase at sale for arrears of revenue, 103. 
 with notice of, 104. 
 
INDEX. 503 
 
 BEN AMI TRANSACTIONS Ofliif //*). 
 real owner may sue benamidar, 104. 
 sale by beTiamidar, 103. 
 son. purchase in name of, 98. 
 standing by, 103. 
 stranger, purchase in name of. 98. 
 strict proof of benami title required. 101. 
 transaction avowedly fraudulent, 105. 
 
 BENEFICIARIES, gee CESTTH QUE TRUST ; TRUSTS ACT, 1882. 
 
 BEQUEST to religious or charitable purposes, provisions of Succession 
 Act as to, 352. 
 
 BEST ADVANTAGE, duty of trustee to sell to, 233. 
 
 BIBLES, trust for purchase of, 353. 
 
 BID, when trustee allowed to, for trust-estate. 264. 
 
 BILLS OF EXCHANGE, following trust-property converted into, 296. 
 
 BOMBAY, Minors' Act in, 228. 
 
 BOND OF INDEMNITY, when trustee entitled to, 178. 
 
 BOOKS OF ACCOUNT, production of, 157. 
 
 BREACH OF TRUST, 
 
 abscond, trustee who has committed a - and is about to abscond 
 
 may be required to give security. 182. 
 accumulate dividends, neglect to. is a, 184. 
 acquieseuce in by c. q. t., 190. 
 agent, liability of, for. 140, 184. 
 
 appointment of trustee for purpose of committing, 330. 
 by co-executor, 193. 201, 206. 
 
 co-trustee, 140, 193. 
 e. q. t., acquiescence in. by, 190. 
 
 concurrence in, 188. 
 
 joining in - liability of, 322, 323. 
 
 personal liability of. to reimburse trustee, 216. 
 
 purchase of trust-estate from, 261. 
 
 release by. from. 192. 
 compounding debts, when a, 252. 
 concurrence in, 188. 
 confirmation of. 192., 
 
 contribution among co-trustees in respect of, 207. 
 costs of suit in respect of, see COSTS. 
 criminal, 182, 406. 
 delay in seeking relief for. 191. 
 
 destruction of trust-property, liability of trustee for, where. 140. 
 extent of liability for, 182. 
 following trust-estate, 191. 
 giving up custody of title-deeds is. 211. 
 imaginary values, where trustee charged with, 182. 
 impounding fund in Court to meet liability for, 207. 
 indemnity-clause how far protection for, 201. 
 indemnity from gainer by. 217. 
 injunction to restrain, 206, 287. 
 insure, when neglect to, is. 140. 
 investment, neglecting, is, 314. 
 
 on personal security is. 142. 160 
 lease, taking lease of trust-property by trustee is, 260. 
 
504 INDEX. 
 
 BREACH OF TWJ&T (continued). 
 
 leaving trust-estate outstanding is, 137. 138. 
 liability of agent party to. 240. 
 
 partner employing trust-funds in business. 319. 
 trustee delegating office. 235. 
 
 employing trust-funds in trade. 314. 
 leaving property uninvested. 314. 
 limitation to suits in respect of. see LIMITAITON. 
 loan by trustees to themselves is, 265. 
 loss by accident, where, 183. 
 
 mixing trust-funds with trustee's money is, 140, 142. 
 neglect to accumulate dividends ?s, 184. 
 get in trust-estate, 137. 
 invest, 1(50. 
 
 obey directions in instrument of trust, 184. 
 pay premiums, 184. 
 register, 184. 
 transfer stock. 184. 
 
 new trustee, liability of. for of predecessor, 136. 
 
 non-investment is. 314. 
 note-of-hand, investment on, is, 161. 
 notice of. 231 
 
 See NOTICE. 
 
 parting with control of trust-property is, 141. 
 partner, liability of, for. 183. 
 payment to legatees while debts unpaid, 181. 
 
 under power of attorney when, 207. 
 personal liability of trustee for. 137. 
 
 though no benefit derived from. 182. 
 personal security, lending on. is. 138, 142. 160, 265. 
 policy of assurance, neglect to keep up, when. 184. 
 power, neglect to execute is, 184. 
 
 predecessor, liability of trustee for of, 193. 
 
 professional adviser, liability of, for. 183. 
 promissory note, investment on. is. 160. 
 purchase by trustee for sale of trust-property, when. 256. 
 of debt when, 252. 
 
 insolvent's estate by assignee. 264. 
 trust-estate from c. q. t.. 261. 
 purchaser, following trust estate into hands of. 291. 
 
 from heirs of Mahomedan debtor, 312. 
 receipt, trustee or executor joining in for. conformity, liability of, 
 
 for. 194, 199. 
 
 release by c. q. t. from liability for, 192. 
 representatives of deceased trustee, liability of. for his, 330. 
 sale, purchase by trustee for sale of trust-estate is, 256. 
 securities, neglect to realize when a, 137. 
 
 set-off in respect of not allowed, 192. 
 
 several liability of trustees for. 206. 
 
 solicitor, liability of. for of partner. 183. 
 
 etock. neglect to transfer, when, 184. 
 
 trade, employing trust-funds in, when. 251, 314. 
 
 wilful default, when trustee charged with in respect of, 182, 187. 
 
 See TRUSTS ACT, 1882. 
 
 BRIDGE, trust for repairs of, 352. 
 
 BROKER, 
 
 if trustee, may not profit from office. 255. 
 liability of trustee for failure of. 141. 142. 
 
INDEX. 505 
 
 BURDEN OF PROOF in benami transactions, 98. 101. 
 BURMA, Minors' Act in, 228. 
 
 BUYIXG-IN AT SALE, 224. 
 
 See TRUSTS ACT, 1882. 
 
 CAPRICE, liability of trustee refusing to transfer through, to pay 
 costs, 119. 
 
 CARE required from trustee, 1 40. 
 See TRUSTS ACT, 1882. 
 
 CASES FOR OPINION OF COUNSEL, right of c. q. t. to, 212. 
 CENTRAL PROVINCES, Minors' Act in, 228. 
 
 CERTAIN, 
 
 gift to idol must be. 370. 
 implied trust must be. 79. 
 
 so trust for charitable or religious purposes, 355. 
 See TRUSTS ACT, 1882. 
 
 CESTUI QUE TRUST, 
 
 abroad, payment of trust-fund to, 207. 
 
 should be party to suit, 344. 
 acquiescence by. in breach of trust, 190. 
 
 See ACQUIESCENCE. 
 
 and trustee, parties to suit between, 343. 
 assignment of equitable interest of, 56. 
 
 See ALIENATION. 
 
 authority from, to pay trust-money to agent, 179. 
 concurrence by. in breach of trust. 188. 
 consent of, to change of investment, 162. 
 contract for remuneration with, 248. 
 conveyance of trust-property to, 175. 
 definition of. 18. 465. 
 
 discharge of trustee from office by, 235. 327. 
 election by. to take trust -property unconverted, 320. 
 estoppel of, by settled account, 247. 
 failure of, 157. 
 
 heirs or next-of-kin of, 256. 
 
 gift by to trustee, 252. 
 
 interest of each to be attended to on sale, 169. 
 
 joining in breach of trust, liability of. 322. 
 liability to refund, if overpaid, 180. 
 maintenance of adult, 221. 
 
 infant, 226. 
 may be trustee. 132, 329. 
 
 set aside purchase of trust-estate by trustee. 259. 
 one, not to be benefited at expense of another, 152, 162. 
 payment of trust-fund after death of, 176. 
 to. without notice of transfer, 208. 
 when abroad, 207. 
 
 personal liability of. to reimburse trustee, 216. 
 purchase for benefit of, 252. 
 
 of trust-estate from, by trustee, when breach of trust, 261. 
 release to trustee from, 177. 
 
 remedy of, in cases of non-investment and wrongful investment, 167. 
 in case of trustee's insolvency, 168. 
 
 and gee BREACH OF TRUST ; DUTIES AND LiABiLiTiEa 
 OF TRUSTEES ; SUIT. 
 
 64 
 
506 INDEX. 
 
 CESTUI QUE TRUST (continued). 
 
 right of, to account of rents and profits, 268. 
 alienate interest, 273. 
 See ALIENATION. 
 apply for appointment of proper number of trustees, 280. 
 
 of receiver. 340. 
 call for conveyance. 209. 
 compel performance of act of duty, 287. 
 copies of documents, 272. 
 costs of suit to compel conveyance. 209. . 
 elect to take property unconverted, 320. 
 execution of trust. 282. , 
 
 have fund paid into Court. 330. 
 hold property absolutely, 271. 
 injunction to restrain breach of trust, 287. 
 inspection of documents. 272. 
 institute suit for appointment of new trustees, 284. 
 
 to compel conveyance, 2G'J. 
 proper number of trustees, 284. 
 rents and profits, 2(58. 
 
 set, aside purchase of trust-property by trustee, 289. 
 specific performance of trust, 271. 
 suit by trustee against, to recover advance, 210. 
 to be pointed out on creation of trust, 52. 
 trausferree from, rights of. 324. 
 when necessary party to suit. 341. 344. 
 
 trustee should apply for advice of, 220. 
 who may be, 127, 467. 
 
 See TRUSTS ACT, 1882. 
 
 CHANGE OF INVESTMENT, consent of o. q. t. to, 102. 
 
 CHARGE OF DEBTS, liability of purchaser to see to application of pur- 
 chase-money where there is a, 230. 
 
 CHARGES AND EXPENSES when allowed to trustee, 347. 
 
 CHARITABLE PURPOSES, 
 
 registration of societies for. 391. 
 
 See REGISTRATION OP SOCIETIES ACT. 
 when Official Trustee may be appointed trustee of trust for, 409. 
 
 CHARITABLE TRUSTS, 349. 
 
 account, trustees of. must, 36 1. 
 
 Advocate-General when a necessary party to suit respecting. 363. 
 
 alienation of property devoted for, 369. 
 
 altering scheme of. 358. 
 
 among Hindus, 369. 
 
 Mahomedans. 380. 
 
 appointment of new trustees of. 365. 
 apportionment of fund given for, 360. 
 breach of trust, 362. 
 certain, gift for. must be. 355. 
 Civil Procedure Code, provisions of. as to, 363. 
 construction of will containing, 357. 
 
 contemporaneous usage, when evidence of, admissible to aid in con- 
 struing will. 357. 
 
 controlling revenues of property devoted to, 367. 
 ci/ prea. doctrine of. 357. 
 establishment of. 350. 
 evidence to explain will containing, 357. 
 failure of, 358. 
 
INDEX. 507 
 
 CHARITABLE TRUSTS -(continued). 
 
 foreign country, gift for in, 362. 
 
 gift for must be public and certain, 354, 355. 
 
 generally, effect of, 358. 
 
 immoveable property. may be created, 352. 
 
 intention of testator to give to when carried out cy pres, 359. 
 
 limitation of suit for account of. 364. 
 
 Mortmain Act not applicable in India, 351. 
 
 new trustees, appointment of, 365. 
 
 Official Trustee when appointed trustee of, 366. 
 
 parties to suits respecting. 363. 
 
 principles of construing will containing, 357. 
 
 procedure in suit for breach of. 363. 
 
 purchaser without notice from purchaser with notice of, 368. 
 
 redress for breach of how obtained, 363. 
 
 scheme of. power of Court to alter, 358. 
 Succession Act, provisions of, as to creation of, 352. 
 suits respecting. 363. 
 superstitious trusts, 350. 
 trustees of. account from, 364. 
 
 uncertainty, when gift to void for, 355. 
 
 vesting property in new trustees, 366, 367. 
 
 visitors. 367. 
 
 what are, 352, 354. 
 
 wills, construction of. 357. 
 
 See TRUSTEE ACT ; TRUSTS ACT, 1882. 
 
 CHATTELS, trustee of, should make inventory, 137. 
 
 CHILD. 
 
 gift by. to parent. 112. 
 
 no resulting trust on purchase in name of, 90. 
 
 CHILD AND STRANGER, resulting trust on purchase in names of, 94. 
 
 CHCSE-I.Y- A CTIOX, 
 alienation of. 273. 
 assignment of, subject to trust, 68. 
 
 CHURCH, trust for, 352. 
 
 CIVIL PROCEDURE CODE, 
 chap, xxxiv, p. 182. 
 ss. 15,16, p. 26. 
 ss. 26. 27. and 28. p. 341. 
 ss. 33.438. and 439, p. 345. 
 s. 317, p. 102. 
 8. 437. p 342. 
 ss. 437. 439. and 539, p. 15. 
 s. 539, p. 563. 
 
 CLASS OF PERSONS, charitable trust for, 354. 
 
 CLIENT AND LEGAL ADVISER, setting aside transactions between, 114. 
 
 CO-EXECUTOR. 
 
 delegation of office to, 236. 
 
 liability of one for breach of trust of his , 193, 201. 
 
 COLONIES, trust of land in, 2931. 
 COLOURABLE GIFT TO IDOL, 370. 
 COMMITTEE, 
 
 appointment of. under Act XX of 1863, p. 399. 
 
 of lunatic, remuneration of, 243, 
 
508 INDEX. 
 
 COMMON ACCOUNT, liability of trustee under decree for, 204. 
 COMMUNICATION of deed to creditor, 76. 
 
 COMPANY, 
 
 investment on stock or shares of, 161. 
 
 trust for a private in perpetuity, void, 335. 
 
 COMPENSATION, conditions of sale as to, 224. 
 
 COMPOUNDING DEBTS, 
 
 liability of executors and trustees for, 252. 
 powers of, 222. 
 
 under Trustees' and Mortgagees' Powers Act, 457. 
 See TRUSTS ACT, 1882. 
 
 COMPOUND INTEREST, 
 
 liability of executor or administrator to pay, 313. 
 
 trustee, 166,318. 
 See TEUBTSACT, 1882. 
 
 COMPULSORY PAYMENT into Court, 336. 
 
 CONCURRENCE IN BREACH OF TRUST, 188. 
 See TRUSTS ACT, 1882. 
 
 CONDITIONS OF SALE, 
 
 what are allowable on sale by trustees, 223. 
 
 under Trustees' and Mortgagees' Powers Act, 444. 
 See TRUSTS ACT, 1882. 
 
 CONDUCT, disclaimer by, 133. 
 CONFIDENCE IN TRUSTEE, 16. 
 
 CONFIRMATION 
 
 in case of voluntary gift, 118. 
 of breach of trust, 192. 
 
 purchase of trust-property by trustee, 261. 
 
 CONFORMITY, executors and trustees joining in receipt for, 194199. 
 See TRUSTS ACT, 1882. 
 
 CONSENT 
 
 of c. q. t. to change of investment, 162 
 Court to investment, 163. 
 See TRUSTS ACT, 1882. 
 
 CONSIDERATION, 
 
 evidence to prove, 70. 
 
 fictitious is badge of fraud, 117. 
 
 not necessary to valid declaration of trust, 52. 
 
 trustee retiring for, 255. 
 
 what is a valuable, 59. 
 
 See TRUSTS, ACT, 1882. 
 
 CONSTRUCTIVE NOTICE, 104, 293. 
 
 CONSTRUCTIVE TRUST, 
 acquiescence, 118. 
 laches, 119. 
 limitation, 365. 
 persons gaining benefit from fiduciary relation, hold property on, 107. 
 
 agent, 107. 
 
 factors, 107. 
 
 guardian. 113. 
 
 legal advisers, 109, 114. 
 
INDEX. 509 
 
 CONSTRUCTIVE TRUST -(continued). 
 medical advisers, 111, 115. 
 parent, 112. 
 partner. 107. 
 spiritual advisers, 111. 
 trustee, 107. 
 setting aside gifts. 115. 
 
 See TRUSTS ACT, 1882. 
 
 CONTINGENT RIGHT, see TRUSTEE ACT, 416. 
 CONTINUING LIABILITY of old trustee, 437. 
 
 CONTRACT, 
 
 every person competent to. may create trust, 124, 467. 
 
 See TRUSTS ACT, 1882. 
 for remuneration with c. q. t., 248. 
 trust founded on an illegal, 35. 
 when trustees may sell by, 222, 444. 
 
 CONTRACT ACT, 
 s. 23, p. 33. 
 BS. 57, 58, p. 49. 
 8. 157, p. 319. 
 
 CONTRACT OF SALE, conditions as to, 224. 
 
 CONTRIBUTION, 206. 
 
 See TRUSTS ACT, 1882. 
 
 CONTROL OF TRUST FUND, duties of trustees as to, 141. 
 
 CONVERSION. 320. 
 
 of perishable property, 1 48. 
 
 See TRUSTS ACT 1882. 
 
 CONVERTED TRUST PROPERTY, following, 294. 
 
 CONVEY, 
 
 power of High Court to appoint person to, 425. 
 trustees to. 225. 
 
 See TRUSTS ACT, 1882. 
 
 CONVEYANCE 
 
 all trustees must join in. 240. 
 
 by trustee exercising power of sale. 445. 
 
 of equitable interest how made. 274. 
 
 trust-property to c. q. ., 175. 
 right of c. fj. t. to call for, 269. 
 to new trustees. 334. 
 without consideration, resulting trust on, 90- 
 
 COPIES 
 
 of accounts, right to, 158. 
 
 documents, right of c. q. t. to, 272. 
 See TRUSTS ACT, 1882. 
 
 CORPORATION 
 
 may create trust, 124. 
 may be c. q. t., 127. 
 trustee, 130. 
 
 CORPUS, 
 
 lien of trustee on, for expenses, 215. 
 
510 INDEX. 
 
 COSTS, 
 
 after decree, 347. 
 
 between stranger and parties to trust. 346. 
 
 trustees and c. q. t.. 346. 
 caused by trustee's misconduct, 348. 
 charges and expenses. 347. 
 
 in suit for breach of trust where several defendants involved, 207. 
 of accounts. 348. 
 
 application to High Court under Religious Societies Act, 463. 
 appeal. 217. 
 
 counsel's opinion on title, 170. 
 disclaimer, 347. 
 determining question of law. 348. 
 
 relating to trustee's private interests, 348. 
 inability or refusal to account. 158. 
 independent action by trustees. 241. 
 legal advice on purchase by trustee, 171. 
 petition under Trustee Act. 441. 
 refusing to convey trust-estate. 269. 
 setting aside voluntary gift, 119. 
 severing defence, 345 6. 
 solicitor, trustee acting for himself, 246. 
 suit against Official Trustee. 411. 
 
 for appointment of new trustee, 332. 
 necessary by act of trustee, 347. 
 to assert title to trust-fund, 178. 
 discharge trustee. 332. 
 remove trustee. 285. 
 set aside sale to trustee, 291. 
 trustee after disclaimer. 133. 
 
 not making inventory of chattels, 137. 
 out of fund, 347. 
 
 reimbursement of trustees for, 213. 
 under Act XX of 18(38. p. 404. 
 
 See TRUSTS ACT, 1882. 
 
 CO-TRUSTEES 
 
 delegation of office to, 236. 
 
 disclaimer by. 133. 
 
 joint nature of office of. 240 
 
 liability of trustee for improper accounts of, 157. 
 
 loss caused by, 140. 
 several liability of. 206. 
 
 when one trustee liable for breach of trust of his , 193. 
 
 See TEUSTS ACT, 1882. 
 
 COUNSEL, 
 
 costs of opinion on title, 1 70. 
 
 right of c. q. t. to cases for opinion of, 212. 
 
 when trustee entitled to take opinion of, 134. 
 
 COURT, 
 
 alteration of scheme of charity by, 358. 
 
 appointment of new trustees by , see APPOINTMENT OF NEW 
 
 TRUSTEES. 
 
 consent of. to investment. 163. 
 decree of, indemnity to trustee, 217. 
 discharge of trustee by, 330. 
 
 affidavit of fitness of new truste on, 331. 
 
 caprice, trustee cannot throw up trust from, 331. 
 
 conveyance to new trustee on, 334. 
 
INDEX. 511 
 
 COURT (continued). 
 discharge 
 
 costs of, 332. 
 grounds of, 3313. 
 
 of representatives of deceased trustee, 333. 
 suit necessary, 331. 
 
 under Trustees' and Mortgages' Powers Act. 333. 
 where property lost. 332. 
 
 whether retiring trustee must appoint successor, 331. 
 disclaimer in. 133. 
 execution of trust by, 282. 
 impounding trust-fund in, 207. 
 leave of, when required for sale or mortgage, 163. 
 
 purchase, 171. 
 
 payment into, on retirement, 328. 
 generally, 338. 
 out of. to single trustee, 180. 
 petition for advice of. 2 1 S. 
 
 See PETITION. 
 
 remuneration of trustee appointed by, 246. 
 See TRUSTS ACT, 1882. 
 
 COVENANTS, usual on sale by trustees, 224. 
 
 CREATION OF TRUST, 51. 
 
 See DECLARATION or TRUST ; TRUSTS ACT, 1882 
 
 CREDITORS, 
 
 benauai transaction to defraud. 105. 
 purchase by, of insolvent's estate, 2G4. 
 
 void as against. 92. 
 suit by. against benamidar, 105. 
 trusts for, 14. 
 voluntary settlement for purpose of defrauding, 59. 
 
 CREDITORS' DEED. 
 
 communication of, 76. 
 execution of. 7.5. 
 revocation of, 73. 
 
 CRIMINAL BREACH OF TRUST, 182. 
 
 of property of religious endowment, 406. 
 
 CURATOR, remuneration of: 249. 
 See TRUSTS ACT, 1882. 
 
 CUSTODY OF TITLE-DEEDS, right of trustee to, 211, 272. 
 See TRUSTS ACT, 1882. 
 
 CY PEES. 
 
 doctrine of. 23. 
 
 iu case of charity, 357 361. 
 
 DEATH 
 
 gift in expectation of. when set aside, 115. 
 of c. q. t.. payment after, 176. 
 presumption of. 176 
 vacation of office of trustee by, 488. 
 DEBT, 
 
 barred, when executor or administrator may pay. 222. 
 compounding and releasing. 222. 
 See TRUSTS ACT, 1882. 
 due to trust-estate, duty of trustee as to, 137. 
 
512 INDEX. 
 
 DEBT (continued). 
 
 liability of purchaser to see to application of purchase-money in 
 
 payment of, 230. 
 payment of, by instalments, 138. 
 trust for payment of, 76. 
 
 DEBUTTUR PROPERTY, 
 alienation of, 374. 
 
 by lease. 374. 
 
 estate which may be created on, 374. 
 evidence of endowment to be given, 375. 
 sale of, how far set aside. 375. 
 
 necessity for. to be proved, 374. 
 turn of worship, 376. 
 trustee may not profit by, 375. 
 
 DECLARATION OF TRUST, 51. 
 
 by c. q. t. of equitable interest, 56. 
 
 consideration for not necessary. 53. 
 
 incomplete, not enforced against author of trust, 53. 
 
 intention to create trust must be shown, 52. 
 
 may be by deed or will, 51. 
 
 must be complete. 53. 
 
 of immoveable property. 52, 466. 
 
 moveable property, 51, 466. 
 
 property passing by delivery, 54. 
 parol, 52. 
 
 Statute of Frauds how far in force in India. 52. 
 transmutation of possession not necessary, 53. 
 valuable consideration, effect of, 52. 
 when complete. 56, 57, 465. 
 writing when necessary. 52. 
 
 See TEUSTS ACT, 1882; VOLUNTABY SETTLEMENTS. 
 
 DECLARATION of election to take property unconverted, 321. 
 DECLINING TO ACT,' what is, 328. 
 
 DECREE, 
 
 of Court, indemnity to trustee. 217. 
 payment of trust-fund into Court after, 338, 
 prima facie proof of necessity for sale. 311. 
 suspension of trustees' power after, 232. 
 See TBUSTS ACT, 1882. 
 
 DEED, 
 
 implied trust in, 77. 
 
 for benefit of creditors, 74, 76. 
 
 DEFAULT, wilful, must be pleaded, 187. 
 
 DEFENDING ACTION, duty of trustee as to, 137. 
 See TBUSTS ACT, 1882. 
 
 DEFRAUDING CREDITORS 
 by benami transaction, 105. 
 voluntary settlement for purpose of, 59. 
 
 DELAY 
 
 in applying to set aside voluntary gift, 119. 
 disclaiming trust, 133. 
 
 proceeding against trustee for breach of trust, 191. 
 realizing trust-property, 174. 
 re-selling, 225. 
 
INDEX. 513 
 
 DELEGATION OF TRUST. 235. 
 authorized by settlor, 238. 
 breach of trust, liability of trustee for, 235. 
 employment of solicitor to invest, 236. 
 for sale, '2'2'2. 
 fraud by co-trustee, 239. 
 legal and moral necessity for, 237, 
 of discretionary nature, 239. 
 
 ministerial act, 240. 
 to agent. 240. 
 
 broker, 236. 
 
 co-executor or co-trustee, 236. 
 
 trustee, 236. 
 when necessary, 236. 
 
 See TRUSTS ACT, 1882. 
 
 DELIVERY OF TITLE-DEEDS, trust for, 212. 
 
 DEPOSIT, conditions of sale as to return of, 224. 
 
 DEPRECIATORY CONDITIONS OF SALE, trustee should not employ, 223, 
 
 DERIVATIVE TITLE, 176. 
 
 DESTRUCTION 
 
 of books of account, liability of trustee for, 1 57. 
 trust-property, liability of trustee for, 140. 
 
 DETERIORATION OF TRUST-PROPERTY when breach of trust, 140. 
 DEVISE subject to trust for idol, 373. 
 
 DEVISEE of trustee cannot appoint new trustee under power, 329. 
 DILIGENCE, duty of trustee to use, 168. 
 
 DIRECTOR, 
 
 may not profit from office, 254. 
 See TBUSTS ACT, 1882. 
 remuneration of, when partner solicitor, 246. 
 
 DISABILITIES OF TRUSTEES. 234. 
 See TRUSTS ACT, 1882. 
 
 DISABILITY, payment of trust-fund to persons under, 180. 
 
 DISCHARGE, 
 
 by payment to agent. 240. 
 
 how trustee may obtain, 235. 327, 330. 
 
 See TRUSTS ACT, 1882. 
 of person paying purchase-money, 446. 
 
 receiver, 341. 
 
 representatives of deceased trustee, 333. 
 trustee's receipt when, 456. 
 
 DISCLAIMER OF TRUST, 132. 467. 
 acquiescence when a bar, 134. 
 
 acts of ownership, trustee may not disclaim after exercising, 132. 
 by heir of trustee, 132. 
 
 one trustee not ground for appointment of receiver, 341. 
 
 parol. 133. 
 
 renunciation of probate, 122. 
 
 written statement, 133. 
 
 counsel's opinion as to, when trustee may take, 134. 
 delay when a bar, 133. 
 
 65 
 
514 INDEX. 
 
 DISCLAIMER OF TRUST (continued). 
 how made. 133. 
 in Court. 133. 
 
 when trustee may disclaim and accept gift. 133. 
 Sre TRUSTS ACT. 1882. 
 
 DISCLAIMING TRUSTEE, 
 costs of. 347. 
 not necessary party to suit. 344. 
 
 DISCLOSING TRUST on purchase from trustees, 171. 
 
 DISCRETION 
 
 of trustees as to selling 1 trust-property. 173. 
 
 not generally interfered with. 152. 155. 
 when Court will interfere with. 242. 
 See TRUSTS ACT, 1882. 
 
 DISCRETIONARY TRUST. 18. 
 
 delegation of. not permitted. 23'.'. 
 for sale cannot be exercised by infant. 127. 
 See TRUSTS ACT, 1882. 
 
 DISPUTING LANDLORD'S TITLE, 100. 
 DISSENTERS, trust for, 353. 
 
 DISSOLUTION OF SOCIETIES. 
 
 registered under Act XVI of 1860, p. 394. 
 under Religious Societies Act, 462. 
 
 DISTRIBUTION 
 
 of trust-fund. 175. 
 
 under Trustees' and Mortgagees' Powers Act, 459. 
 
 DOCUMENTS, right of c. q. t. to inspection of, 272. 
 DOUBTFUL EQUITY, purchaser taking with, 294. 
 
 DUTIES OF TRUSTEES, 
 
 acceptance of office, consequent on, 135. 
 accounts, as to, 157. 
 
 See ACCOUNT. 
 
 active, in execution of trust to be. 135. 
 acquaint themselves with state of trust. 136. 
 advantage, trustee may not derive, from trust, see PROFIT. 
 attend to interests of all parties, 1 69. 
 care required from trustees. 1 40. 
 charities, see CHARITABLE TRUSTS. 
 collect debts due to estate, 137. 
 control of trust- funds. 141. 
 conversion of perishable property. 148. 
 convey, gee CONVEYANCE, 
 custody of moveable property, 140. 
 debts, sec DEBTS. 
 
 delegate, trustees may not, see DELEGATION. 
 distribute trust-fund, 175. 
 get in trust-estate. 136, 137, 140. 
 impartial, to be. 152. 
 insure, when trustee may, 221. 
 investments, as to. 15',). 
 
 outstanding property, getting in, 136, 137, 140. 
 protect trust-estate, 137. 
 purchase. 171. 
 
INDEX. ." 1 5 
 
 DUTIES OF TRUSTEES (ci>ufinii,-il). 
 realize securities, time to, 139. 
 sale, see SALE. 
 
 title, to make good, to trust-property on sale, 170. 
 trustees may be compelled to perform act of duty, 271, 287. 
 varying securities, as to, 162. 
 waste, to prevent, 142. 
 
 See MANAGER OP JOINT HINDU FAMILY ; TRUSTS ACT, 1882 ; 
 WASTE. 
 
 EARMARK, meaning of, as applied to money, 295. 
 
 EDUCATION, trust for, 352. 354. 
 See TRUSTS ACT, 1882. 
 
 ELECTION 
 
 by c. q. t. as to remedy when trust- property lost, 1 65. 
 
 where truat-property to be sold or invested, 320. 
 one c. q. t. to retain share unconverted, 320. 
 
 ENDOWMENT 
 
 of land subject to mortgage. 384. 
 under Act XX of 1863, p. 396. 
 
 See RELIGIOUS TBUSTS. 
 
 ENFORCING VOLUNTARY SETTLEMENT, 72. 
 ENJOYMENT OF PROPERTY, trust postponing, 37. 
 EQUITABLE ESTATE, 8. 
 
 EQUITABLE INTEREST, assignment of, 56. 
 See ALIENATION ; ASSIGNMENT. 
 
 EQUITABLE OWNER, proof of benami title by, 105. 
 
 EQUITABLE WASTE, 145. 
 
 EQUITIES, assignee takes subject to, 274, 324. 
 
 ESSENCE OF CONTRACT, conditions as to time being of the, 224. 
 
 ESTATES OF FREEHOLD, 2. 
 
 ESTOPPEL 
 
 in benami transaction, 100. 
 
 of c. q. t. by settled account, 247. 
 
 EVIDENCE, 
 
 of acceptance of trust, 122. 
 
 appropriation, 382 
 
 benami transactions. 107. 
 
 election to take property unconverted, 321. 
 
 endowment, 375. 
 
 necessity for sale. 311. 
 to contradict recitals in deeds, 122. 
 
 prove consideration, 70. 
 
 rebut presumption of advancement, 94. 
 
 resulting trust, 88, 94. 
 EVIDENCE ACT, 
 s. Ill, p. 111. 
 s. 116, p. 100. 
 
 EXECUTED TRUSTS.. 20. 
 
51G INDEX. 
 
 EXECUTION, 
 
 of creditor's deed, 75. 
 
 powers under Trustees' and Mortgagees' Powers Act. 451. 
 trust, discretion a to mode of, not interfered with, 155. 
 for idol, 380. 
 right of c. q. t. to. 271. 
 
 See TRUSTS ACT, 1882. 
 euit for, 282. 
 trustees to be impartial in, 152. 
 
 EXECUTION-SALE, liability of purchaser to see to necessity, 311. 
 
 EXECUTOR, 
 
 also trustee, acceptance of trust by, 120. 
 compounding debts, liability of, 252. 
 discharge of, 333. 
 
 disclaiming may act as agent, 131. 
 duty of, to account, 167. 
 employing trust-fund in trade, 251. 
 gift to, disclaimer of office of, 133. 
 joining in receipt for conformity. 199. 
 liability of, to pay interest. 166, 313. 
 may compound debts, 222, 457. 
 
 keep ready-money for winding up estate, 142. 
 
 not purchase assets, 265. 
 petition for advice of High Court by, 459. 
 proof in insolvency by, 240. 
 release to, 177. 
 retirement of, 235. 
 time for realizing assets, 173. 
 when necessary party to suit. 344. 
 
 when one liable for breach of trust of another, 193, 201. 
 See TRUSTS ACT, 1882. 
 
 EXECUTOR DE SON TORT, 
 
 constructive trust on renewal of lease by, 107. 
 
 EXECUTOR OF AN EXECUTOR, 121. 
 
 EXECUTORY TRUSTS, 20. 
 
 cy pres, application of doctrine of, to, 23. 
 in marriage articles, 22. 
 
 wills, 23. 
 intention of settlor carried out, 24. 
 
 EXPENSES. 
 
 lien of trustee for, 215. 
 
 agent has no lien for, 215. 
 right of trustee to be reimbursed for, 212. 
 See TRUSTS ACT, 1882. 
 
 EXPRESS TRUST, no limitation in case of, 303. 
 
 EXTINCTION OF TRUST, 335 
 
 See TRUSTS ACT, 1882. 
 
 FACTOR when considered a constructive trustee, 107. 
 
 FAILURE, 
 
 of c. q. t., 157. 
 
 charitable trust, 359. 
 heirs of c. q. t., 256. 
 next-of-kin, 256. 
 trust, 48. 
 
INDEX. 517 
 
 FAMILY RELIGIOUS TRUST, 14. 
 
 FATHER, maintenance of infant c. q. t. by, 226. 
 FEE-SIMPLE, estates in, 3. 
 
 FEES TO COUNSEL, right of trustee to be reimbursed, 212. 
 FELON, creation of trust by, 126. 
 
 FEMALE 
 
 may be mutawalli. 388. 
 
 trustee of idol, 376. 
 
 FEUDAL SYSTEM. 2. 
 
 i 
 
 FICTITIOUS CONSIDERATION is badge of fraud, 117. 
 FICTITIOUS CONVEYANCE, trust founded on, 35. 
 
 FIDUCIARY RELATIONSHIP, 
 
 jurisdiction of Courts to set aside gifts to persons standing in to 
 
 donor. 111. 
 resulting trust. 92. 
 
 See TRUSTS ACT, 1882. 
 
 FINES AND RECOVERIES ACT, 229. 
 FITNESS OF NEW TRUSTEE, affidavit of, 331. 
 
 FOLLOWING 
 
 converted trust-property into hands of third person, 294. 
 
 Sec TRUSTS ACT. 1882. 
 estate of Mahomedan debtor, 312. 
 trust-property into hands of purchaser for value. 291. 
 
 from manager of joint Hindu 
 family, 306. 
 
 FORECLOSURE, suits for, of land beyond jurisdiction, 28. 
 
 FOREIGN COUNTRY, 
 
 gift to charity in, 362 
 
 investment in securities of, 161. 
 
 trust of land in, 29, 49. 
 
 FORFEITED PROPERTY, trust cannot be created of, 126. 
 FORFEITURE, clause of, strictly construed, 46. 
 
 FRAUD. 
 
 by co trustee, exoneration of trustee from loss caused by, 239, 
 
 defective title cannot be strengthened by. 294. 
 
 effect of, in computing period of limitation. 303. 
 
 obtaining concurrence of c. q. t. in breach of trust by, 190. 
 
 setting aside voluntary gift on ground of, 59, 111. 
 
 trust founded on. 35. 
 
 trustees not allowed expenses if guilty of, 213. 
 
 FREEHOLD ESTATES, 2. 
 
 FUND. 
 
 costs out of. 347. 
 
 in Court, impounding, 207. 
 
 FUTURE ILLEGITIMATE CHILDREN, trust for, 35. 
 GETTING IN TRUST ESTATE, 136, 137, 140. 
 
518 INDEX. 
 
 GIFT, 
 
 by c. q. t. to tru&tee. 252. 
 
 coupled with duty, 248. 
 
 to persons in fiduciary capacity, 111. 
 
 religious houses. 4. 
 
 trustee disclaiming, 133. 
 
 GOOD FAITH, onus of proving, in case of gift to person in fiduciary 
 capacity, 111. 
 
 GOVERNMENT 
 
 cannot be trustee. 129. 
 may be c. q. t., 127. 
 create trust, 124. 
 
 GOVERNMENT SECURITIES, when trustee bound to invest in, 160, 
 410, 445, 453. 
 
 See TRUSTS ACT, 1882. 
 
 GUARDIAN, 
 
 may not profit by office. 254. 
 
 ouus of proof of good faith on purchase from, 292. 
 
 setting aside gift to, by ward, 113. 
 
 HEIRS OF C. Q. T., failure of, 256. 
 HEIRS OF TRUSTEE, disclaimer by, 132. 
 
 HIGH COURT, 
 
 petition for advice of, 21 8. 
 
 under Religious Societies Act. 463. 
 
 Trustees' and Mortgages' Powers Act, 459. 
 See TRUSTS ACT, 1882. 
 
 HIGH COURT CHARTER, 27. 
 
 HINDU, 
 
 devisee, liability of purchaser from, to debts of ancestor. 231. 
 family, liability of manager of, to account, 158. 
 
 purchaser from manager of. 306. 
 trust by married woman of stridhan, 125. 
 widow, alienation by, 147. 
 
 waste by, 145. 
 
 HINDUS, 
 
 declarations of trust by, 51. 
 perpetuities among, 40. 
 
 religious trusts among, see RELIGIOUS TRUSTS AMONG HINDUS ; 
 TRUSTS ACT, 1882. 
 
 HINDU WILLS ACT, ss. 1, 7, p. 342. 
 HOSPITAL, trust for, 352. 
 
 IDOL. 
 
 gift to. 370. 
 
 suit for breach of trust of property dedicated to, 364. 
 
 ILLEGAL CONTRACT, trust founded on, 35. 
 See TRUSTS ACT, 1882. 
 
 ILLEGAL PURPOSE, failing, 48. 
 
 resulting trust, >.">. 
 
 ILLEGALITY, plea of, 48, 49. 
 ILLEGITIMATE CHILDREN, trust for, 35. 
 
INDEX. 519 
 
 IMAGINARY VALUE, trustee when charged with, 182. 
 IMMORAL PURPOSES, trust for, 35, 48. 
 
 IMMOVEABLE PROPERTY. 
 
 beyond jurisdiction, trust of. 26. 
 in foreign country, trust of. 49. 
 trust of. for religious or charitable purpose, 351-. 
 See TRUSTS ACT, 1882. 
 
 IMPARTIAL, trustee bound to be, 152. 
 See TRUSTS ACT, 1882. 
 
 IMPLIED TRUSTS, 77. 
 
 agreement to settle property, 83. 
 precatory words. 
 
 certainty requisite, 79. 
 
 entreaty, 78, 79. 
 
 intention to give absolutely not cut down by. 80. 
 
 maintenance. 80. 
 
 object must be described. 79. 
 
 recommendation, 78, 79. 
 vendor when trustee for vendee, 83. 
 
 IMPOUNDING FUND IN COURT, 207. 
 
 IMPROVEMENT. 
 
 allowance to trustee for. when ordered to reconvey, 290. 
 of particular place, trust for, 354. 
 
 ' INAM,' effect of use of the word, 383. 
 
 ' INCAPABLE TO ACT,' what is. 329. 
 See TRUSTS ACT, 1882. 
 
 INCOME, accumulation of, when applicable for future maintenance, 226. 
 INCOMPLETE TRUST not enforced against settlor, 53. 
 
 INCUMBRANCES, 
 
 covenant against, by trustees, 225. 
 
 new trustee not bound to inquire ae to, 176. 
 
 INDEMNITY, 
 
 clause of, 201, 209. 
 
 not protection against negligence, 141. 
 when presumed. 456. 
 
 decree of Court of first instance is to trustee, 217. 
 
 from gainer by breach of trust, 217. 
 to passive trustee. 206. 
 
 persons obeying orders under Trustee Act. 443. 
 when trustee entitled to bond of, 178, 216, 270. 
 See TRUSTS ACT, 1882. 
 
 INDEPENDENT ADVICE, donor should have, 117. 
 
 INFANT, 
 
 cannot create trust, 125. 
 
 exercise discretionary trust, 127. 
 
 c. q. t., power to apply property for maintenance of. 221, 226, 454. 
 may be trustee. 127. 
 purchase from, by guardian, 264. 
 
 INFORMATION, duty of trustee to furnish c. q. t. with. 157. 
 
 See TRUSTS ACT, 1882. 
 INHABITANT of particular place, trust for. 353, 
 
520 INDEX. 
 
 INJUNCTION, 
 
 power of Court to interfere with discretionary power by. 242. 
 to restrain trustee from committing breach of trust, 200, 287. 
 proceedings by another Court, 31. 
 waste by tenant- for-life, 142. 
 Hindu widow, 146. 
 See TRUSTS ACT, 1882. 
 
 INSOLVENCY 
 
 proof in, by trustees and executors. 241. 
 
 of trustee, remedy of c. q. t. in case of, 168. 
 
 trust to cease on, 41, 45. 
 
 when ground for appointment of new trustee, 330. 
 
 INSOLVENT 
 
 may be trustee, 131. 
 purchase of estate of, by assignee, 264. 
 
 trustee, necessary party to suit, but not his representatives, 344. 
 See TRUSTS ACT, 1882. 
 
 INSOLVENT ACT, ss. 9, 24, p. 65. 
 
 INSPECTION 
 
 of documents, right of c. q. t. to, 272. 
 under Registration of Societies Act, 395. 
 
 INSTALMENTS, payment of debt by, 138. 
 
 INSTRUMENT OF TRUST, discharge of trustees from office under 
 power in, 327. 
 
 INSURANCE of trust-property, 140, 221. 
 
 INTENTION 
 
 of author of trust carried out, 20, 24, 80, 283. 
 to create trust, 52. 
 
 take property uncon verted, 321. 
 
 INTEREST 
 
 compound, liability of executor or administrator to pay, 313. 
 
 trustee, 166, 318, 
 See TRUSTS ACT, 1882. 
 
 liability of c. q. t. to refund purchase-money with, 289. 
 executor or administrator to pay, 313. 
 trustee to pay, 165, 314. 
 on advances by trustee, 216. 
 
 costs not allowed, 213. 
 rate of, 167. 
 
 trustee not liable to pay when he has paid trust-fund to wrong 
 persons, 178. 
 
 INVENTORY OF CHATTELS, trustee should make, 137. 
 
 INVESTMENT, 
 
 authority to invest on personal security may be given by author of 
 
 trust, 161. [is. 160. 
 
 breach of trust, conversion of trust-fund into improper securities 
 
 neglect to follow directious in instrument of trust 
 
 as to is, 160. 
 
 by Official Trustee, 410. 
 
 c". q. t., one not to be benefited by at expense of another, 162. 
 
 consent of c. q. t. to change of, 162. 
 Court, 163. 
 
INDEX. 521 
 
 INVESTMENT (continued). 
 
 continuing investments, duty of trustee as to, 162. 
 conversion of trust-fund into unauthorized securities is breach of 
 trust, 160. 
 
 directions of instrument of trust as to to be followed, 160. 
 
 discretion of trustee as to. not interfered with, 154. 
 
 what securities authorized when mode of investment left to dis- 
 cretion of trustees, 161 
 
 duties of trustees as to generally, 159. 
 
 employment of solicitor to make. 236. 
 
 Government securities, when trustees bound to invest in, 160. 
 
 non-investment, liability of trustee for, 314. 
 
 remedy of c. q. t. for, 165. 
 of moneys arising from sale. 445. 
 on banker's notes-of-hand, 142. 
 
 mortgage, precautions to be taken, 163. 
 personal security as a rule is breach of trust, 160. 
 
 when allowed, 161. 
 private securities, 161. 
 securities of foreign States. 161. 
 shares in private companies, 161. 
 power of varying. 162. 225. 
 
 Official Trustee as to. 164. 
 remedy of c. q. t. for non-investment, 165. 
 
 for wrongful investment. 167. 
 
 trustee giving receipt for conformity bound to see to, 194. 
 trustees may not lend to themselves, 163. 
 under Trustees' and Mortgagees' Powers Act, 164, 453. 
 varying securities, 162, 225. 
 
 See TRUSTS ACT, 1882. 
 
 IRREVOCABLE, trust g completed is, 59, 380. 
 JEWS, trust for, 353. 
 
 JOINING, 
 
 in breach of trust, liability of c. q. t. for, 322. 
 
 See TRUSTS ACT, 1882. 
 in receipt for conformity, 194. 
 
 See TRUSTS ACT, 1882. 
 
 JOINT HINDU FAMILY, purchase from manager of, 306. 
 
 JOINT LIABILITY of trustee for sale, 168. 
 
 JOINT TENANCY on purchase in names of father and son, 94. 
 
 JOINT TENANTS, trustees are, 335. 
 
 JUDGMENT, fair exercise of, by trustees when a protection, 138. 
 
 JURISDICTION 
 
 c. q. t. beyond, should be party to suit, 344. 
 new trustee should be within, 330. 
 trusts of immoveable property beyond, 26. 
 trustee beyond, not necessary party to suit, 344. 
 
 JUST ALLOWANCES, 253. 
 
 KINDS OF TRUST, ' 
 
 discretionary, 18. 
 
 executed and executory, 21 . 
 
 lawful, 19. 
 
 ministerial, 18. 
 
 mixture of trust and power, 19. 
 
 66 
 
522 INDEX. 
 
 KINDS OF TRUST (continued). 
 private. 19. 
 public, 19. 
 simple, 18. 
 special, 18. 
 unlawful, 19. 
 
 LACHES in applying- to set aside voluntary gift, 118. 
 
 LAND, 
 
 purchased with trust-money, lien of c. q. t. upon, 303. 
 
 suit for beyond jurisdiction, 27. 
 
 to be converted into money, election, 320. 
 trust of beyond jurisdiction, 26. 
 
 LANDLORD, suits by and against, in benami transactions, 100. 
 LAW, trust forbidden by, 35, 37. 
 
 LAWFUL TEUST, 19, 32. 
 
 See TRUSTS ACT, 1882. 
 
 LEASE, 
 
 of charity-property, suit for, 363. 
 
 trust-property, trustee may not take, 260. 
 
 tKuqf property, 386. 
 renewal of, by trustee, constructive trust on, 107. 
 
 LEASEHOLDS, 
 
 investment on, 163. 
 duty of trustee to convert, 149. 
 See TRUSTS ACT, 1882. 
 
 LEAVE OF COURT, 
 
 when required for purchase, 171. . 
 
 institution of suit, 27. 
 
 under Religious Endowments Act. 404, 
 
 LEAVE TO BID when given to trustee, 264. 
 
 LEGAL ADVICE, trustee for sale or purchase may take, 171. 
 
 LEGAL ADVISER 
 
 right of trustee to be reimbursed expenses of, 212. 
 
 setting aside gift to by client, 114. 
 
 when a constructive trustee, 109. 
 Si-e TRUSTS ACT, 1882. 
 
 LEGAL ESTATE, 8. 
 
 LEGAL NECESSITY 
 
 for delegation of trust, 237. 
 
 sale by manager of Hindu family, 306. 
 of property devoted to idol, 374. 
 
 LEGAL REPRESENTATIVES may not purchase assets. 265. 
 LEGATEE, whether liable to refund legacy paid by mistake, 180. 
 LEND, trustees may not to themselves, 265. 
 
 LIABILITY, 
 
 of administrator to pay interest, 313. 
 agent party to breach of trust, 240. 
 c. q. t. joining in breach of trust, 322, 
 executor to pay interest, 313. 
 
INDEX. 523 
 
 LIABILITY (continued). 
 
 of partner employing trust-fund in business, 319. 
 
 purchaser to see to application cf purchase-money, 228. 
 transferee from c. q. t.. 324. 
 
 See BREACH OF TEUST ; CESTUI QUB TIIUST ; TRUSTEE. 
 LIEN, 
 
 agents of trustees have no, 215. 
 of c . q. t. on land purchased with trust-money, 303. 
 trustee for expenses out of pocket, 215. 
 
 LIMITATION, 186, 303. 
 
 in cases of charitable trust, 364. 
 of several liability of co-trustees, 206. 
 suits for turn of worship, 377. 
 
 LIMITATION ACT, 
 
 s. 10, pp. 15, 186, 304, 305. 
 
 s. 21, p. 241. 
 
 sched. ii, art. 98. p. 305. 
 
 arts. 98. 100, 133, 134, p. 15. 
 
 arts. 133, 134, p. 305. 
 
 LIMITATIONS, on gifts to religious and charitable purposes, 352. 
 
 LIVERY OF SEISIN, 3. 
 
 LOCO PARENTIS, setting aside gift to person in, 113. 
 
 LOSS BY ACCIDENT, when trustee liable for, 183. 
 
 LOTS, sale in, 223, 444. 
 
 LUNATIC cannot create trust, 124. 
 
 MADRAS, Minors' Act in, 228. 
 
 MAHOMEDAN, 
 
 benami transactions among, 100. 
 debtor, purchase from heirs of, 312. 
 declarations of trust by, 51. 
 law of wuqf, see WUQP. 
 
 MAINTENANCE, 
 
 discretion of trustees as to not interfered with, 154. 
 
 of orphans, charitable trust for, 352. 
 
 power to apply property for of adult c. q. t.,22l. 
 
 infant c. q. t., 226. 
 
 precatory trust for, 80. 
 
 under Trustees' and Mortgagees' Powers Act, 454. 
 MAIRWARRA, Minors' Act in, 228. 
 MANAGEMENT, 
 
 of trust for idol, 218. 
 
 petition for advice of High Court a => to, 218, 459. 
 
 removal of Hindu widow from. 147. 
 
 trustee entitled to be reimbursed expenses of, 214. 
 
 MANAGING- MEMBER, 
 
 of joint Hindu family, liability of, to account, 158. 
 
 purchase from, 306. 
 
 MARRIAGE ARTICLES, executory trusts in, 21. 
 MARRIED WOMAN, 
 
 cannot assign interest in' property settled to separate use, 274. 
 claim fund settled to her separate use, 272. 
 
 creation of trust by, 125. 
 
 may be trustee. 131. 
 
 See TKUSIS ACT, 1882. 
 
524 INDEX. 
 
 MASSES, trust for, 3 50. 
 
 MEDICAL ADVISER, setting aside voluntary gift to, 111. 
 
 MERGER, 18. 
 
 MESNE PROFITS, account of, by trustee renewing lease, 109. 
 
 MINISTERIAL ACT, delegation of, 240. 
 
 MINISTERIAL TRUST, 18. 
 
 MINOR, 
 
 cannot create trust, 125. 
 
 exercise discretionary trust for sale, 127. 
 may be trustee, 127. 
 maintenance of, .tec MAINTENANCE. 
 payment of money of, into Court under Trustee Act, 440. 
 
 purchase from by trustee. 264. 
 
 See TRUSTS ACT, 1882. 
 
 MINORS' ACTS, 227, 228. 
 
 MISDESCRIPTION. effect of, on sale by trustee, 224. 
 
 MISTAKE, rectification of settlement on ground of, 72. 
 
 MITAKSIIARA LAW, 
 
 gift for pious purposes by father governed by, 369. 
 sale of property of father governed by, 308. 
 
 MIXING- trust-fund with trustee's money, 140, 142, 297, 318. 
 See TRUSTS ACT, 1882. 
 
 MIXTURE of trust and power, 19. 
 
 MODE 
 
 of executing trust, discretion of trustee as to, not interfered with, 155. 
 nor of investing, 154. 
 
 MOHUNT, 
 
 appointment of, 376. 
 removal of, 379. 
 
 MONEY, 
 
 duty of trustee as to trust-fund consisting of, 140. 
 following trust-property converted into, 295. 
 to be converted into land, election, 320. 
 See TRUSTS ACT, 1882. 
 
 MORAL NECESSITY for delegation of trust, 237. 
 
 MORTGAGE, 
 
 assignment of equitable interest by way of, 277. 
 duties of trustee for, 168. 
 investment on, 163. 
 
 See TRUSTS ACT. 1882. 
 
 not authorized by absolute trust for sale, 170. 
 notice of equitable assignment by, 281. 
 of charitable property, suit to authorize, 363, 
 when leave of Court required for, 168. 
 
 MORTGAGEE, 
 
 covenants entered into by. 224. 
 
 purchase by from mortgagor, 265. 
 
 remuneration of. 243. 
 
 renewal of lease by. constructive trust on, 109. 
 
 trustee not charged as for what he might have received, 182. 
 
 when allowed to purchase mortgaged estate, 258. 
 
INDEX. 525 
 
 MORTMAIN, 14. 
 
 MOSQUES, provisions of Act XX of 1863 as to, 396. 
 
 MOTHER, no resulting trust on purchase by, 91. 
 
 MOVEABLE PROPERTY, 
 abroad, trust of, 32. 
 declaration of trust of, 51. 
 delivery up of, by trustee, 156. 
 power to sue for, 137. 
 trusts of, 26 
 
 See TRUSTS ACT, 1882. 
 
 MUTAWALLI, female may be, 388. 
 See WUQP. 
 
 NECESSITY, 
 
 for delegation of trust, 236. 
 
 sale of property of joint Hindu family, duty of purchaser to 
 see to, 307. 
 
 decree is prima facie proof of, 311. 
 what is, 308. 
 
 See TRUSTS ACT, 1882. 
 
 NEGLECT to follow directions in trust-deed, liability of trustee for, 
 184. 
 
 See BREACH OP TRUST. 
 
 NEGLIGENCE, trustee not entitled to be reimbursed his costs if guilty 
 of, 213. 
 
 NEGOTIABLE INSTRUMENTS, 
 
 following trust-property converted into, 295. 
 
 NEW TRUSTEES, 
 
 appointment of, see APPOINTMENT OP NEW TRUSTEES ; TRUSTS 
 
 ACT. 1882. 
 
 not liable for breach of trust of predecessors, 136. 
 vesting immoveable property in, 436. 
 
 right to call for transfer of stock in, 437. 
 
 NEXT-OF-KIN of o. q. t., failure of, 256. 
 
 NON-INVESTMENT, 
 
 liability of trustee for, 314. 
 remedy for, 165. 
 
 NOTES, following trust-property converted into, 295. 
 See TRUSTS ACT, 1882. 
 
 NOTICE, 
 
 constructive, what is, 104, 165. 
 
 following trust-property into hands of purchaser with, 292. 
 
 of assignment of equitable interest, 56. 
 
 breach of trust, 231. 
 
 charge of legacy, duty of trustee on receiving, 325. 
 
 election to take property unconverted, 321. 
 
 equitable title, 273. 
 
 motion for payment of trust-fund into Court, 337. 
 
 purchase of chosc-'m-actlon, 273. 
 
 trust, what is, 293. 
 
 payment of trust-fund to c. q. t. without of transfer, 208. 
 
 purchase without of benami property, 103. 
 
 reconveyance by purchaser with, 289. 
 
526 INDEX. 
 
 NOTICE (continued). 
 
 to trustees on purchase of equitable interest, 276. 
 
 agents of company, 279. 
 
 assignee of debt not bound to give, 281. 
 
 bankers, 280. 
 
 before trust-fund received. 280. 
 
 description of property to be given, 278. 
 
 directors of company, 279. 
 
 immoveable property, rules as to, do not apply to, 281. 
 
 manager of Company, 279. 
 
 objects of, 276. 
 
 officer of company, 279. 
 
 one of several trustees. 280. 
 
 policy of assurance, 277. 
 
 priorities, 276. 
 
 reputed ownership, 278. 
 
 snares, 277. 
 
 shareholder, 279. 
 
 solicitor, 279. 
 
 stop order, 281. 
 
 to whom to be given, 279. 
 
 trustee purchasing, 280. 
 
 what is sufficient, 279. 
 
 trust-property cannot be followed into hands of purchaser for valu- 
 able consideration without. 293. 
 See TRUSTS ACT, 1882. 
 
 NUMBER OF TRUSTEES, 132. 328. 
 See TRUSTS ACT, 1882. 
 
 OBJECT OF TRUST must be lawful, 32. 
 
 OFFICE, 
 
 of trustee is onerous, 137. 
 
 joint nature of, 240. 
 vacating, 326. 
 
 OFFICIAL TRUSTEE, see OFFICIAL TRUSTEE'S ACT ; TRUSTS ACT, 1882. 
 
 OFFICIAL TRUSTEE'S ACT, 407. 
 accounts to be kept, 411. 
 administrator may pay share of infant or lunatic to Official Trustee. 
 
 415. 
 
 Administrator-General may be Official Trustee, 408. 
 Advocate-General, referring auditor's report to, 414. 
 annual schedules to be furnished, 412. 
 appointment of Official Trustee as trustee by Court, 409. 
 
 must always be sole trustee, 410. 
 audit of accounts, 413. 
 charitable purposes, when Official Trustee may be appointed trustee 
 
 for. 409. 
 
 commission of Official Trustee, what expenses covered by, 410. 
 costs of preparing schedules, 413, 414. 
 
 reference to Advocate-General, 414. 
 suit, 411. 
 
 execution of orders of High Court, 414. 
 
 executor may pay share of infant or lunatic to Official Trustee, 415. 
 High Court, power of, to make orders respecting property vested in 
 
 Official Trustee, 410. 
 inspection of accounts, 411. 
 
 schedules, 412. 
 investments allowed, 410. 
 
INDKX. 527 
 
 OFFICIAL TRUSTEE'S ACT (continued). 
 
 leave of absence, 408. 
 
 order, who may apply for, 415. 
 
 petition for appointment of Official Trustee as trustee, 409. 
 
 order respecting property vested in Official Trustee. 410. 
 
 publication of rules respecting Official Trustee's office, 412. 
 
 religious trust. Official Trustee may not hold, 409. 
 
 removal of Official Trustee. 408. 
 
 remuneration under settlement. 409. 
 
 where appointed by Court, 409. 
 
 re-transfer of property vested in Official Trustee, 410. 
 
 rules, power of Chief Justice to make as to Official Trustee's 
 
 office, 412. 
 
 schedules to be furnished annually, 412. 
 
 securities on which investment allowed, 410. 
 
 security to be given, 408. 
 
 suits by and against Official Trustee. 411. 
 
 trusts which may be held by Official Trustee, 409. 
 
 vesting property in, 411. 
 OPINION. 
 
 of counsel on title, costs of, 170. 
 
 rights of c. q. t. to cases for, 212. 
 ORIGIN OF TRUSTS in England, 1. 
 ORPHANS, charitable trust for, 352. 
 OUDH, Minors' Act in, 228. 
 OUT-OF-POCKET EXPENSES, lien of trustee for, 215. 
 
 OVERPAYMENT, refund on, 180. 
 Sec TRUSTS ACT. 1882. 
 
 PARENT, gift by child to, 112. 
 
 PAROL. 
 
 declaration of trust. 51. 
 disclaimer by, 133. 
 
 evidence by person paying purchase-money, 88. 
 of acceptance of trust, 122. 
 benami transaction, 102. 
 
 to rebut presumption of resulting trust, 85, 88. 
 PARTIAL ACCEPTANCE of trust, 122. 
 
 PARTIES TO SUITS, 
 
 administrators or executors when necessary, 344. 
 between trustees. 314. 
 
 and c. q. t., 343. 
 by or against strangers, 341. 
 c. q. t. abroad necessary, 344. 
 
 suing on behalf of self and other, 345. 
 disclaiming trustee, 344. 
 for specific performance, 342 
 insolvent trustee. 34.5. 
 
 provisions of Civil Procedure Code as to, 341. 
 representative of deceased trustee, 343. 
 insolvent trustee. 344. 
 specially constituted, 343. 
 to recover moneys lost by agent, 184. 
 restrain breach of trust, 288. 
 
 Hindu widow from committing waste, 148. 
 trustees abroad not necessary, 344. 
 
528 INDEX. 
 
 PARTITION, 
 
 subject to trust for idol, 374. 
 trust restricting rights of, 41. 
 
 PARTNER, 
 
 employing 1 trust- funds in business, liability of. 319. 
 
 liability of. for breach of trust of co-partner, 183. 
 
 may not profit by trust, 250. 
 
 of solicitor trustee, remuneration of, 24f>. 
 
 purchasing share of deceased, 254. 
 
 payment to, 180. 
 
 remuneration of carrying on business. 244. 
 
 when considered a constructive trustee, 107. 
 See TRUSTS ACT, 1882. 
 
 PASSIVE TRUST, right of c. q. t. in case of, 268. 
 PATIENT, setting aside gift by, to medical attendant. 115. 
 
 PAYMENT 
 
 after death of c. q. t., 176. 
 into Court of trust-fund. 336. 
 
 money of minors, etc., under Trustee Act, 440. 
 when retirement. 328. 
 on written authority of o.q.t., 179. 
 of debts, trust for, 76. 
 purchase-money. 229. 
 
 after sale. 171. 
 in benami transaction, 102. 
 out of Court to single trustee, 180. 
 to agent of trustee. 240. 
 c. q. t. abroad, 207. 
 
 without notice of transfer, 208. 
 legatees while debts unpaid, 181. 
 partner, 180. 
 
 persons under disability, 180. 
 wrong persons, 177. 
 under power of attorney. 207, 457. 
 without notice of transfer of equitable interest, 208. 
 
 PAYMENTS, trustee may make what, 221. 
 PEERAGE, trust of, 26. 
 
 PENAL CODE, 
 a. 62, p. 126. 
 BS. 126, 127, 169. p. 127. 
 88. 405 409, pp.15, 183. 
 
 PERISHABLE PROPERTY, conversion of, 148152. 
 
 See TRUSTS ACT, 1882. 
 PERMISSIVE WASTE, 143. 
 PERPETUITIES, 37. 
 
 among Hindus. 40. 
 
 gift to idol, 370. 
 PERPETUITY, trust in, must be for public purposes, 355. 
 
 PERSONAL LIABILITY, 
 
 of c. q. t. to reimburse trust, 216. 
 trustee for breach of trust, 137. 
 
 even though no benefit, 182. 
 See TRUSTS ACT, 1882. 
 
INDEX. 529 
 
 PERSONAL SECURITY, investments on, see INVESTMENT ; TRUSTS 
 ACT, 1882. 
 
 PETITION. 
 
 applications under Trustee Act to be by, 438. 
 for advice of Court. 218. 4.V.I. 
 
 appointment of new trustees. 409. 
 
 opinion of High Court under Religious Societies Act. 4f>3. 
 order respecting property vested in Official Trustee, 410. 
 service of. 459. 
 
 See TRUSTS ACT, 1882. 
 
 PLACES OF WORSHIP, rigtt to erect, 380. 
 
 PLEADING, 
 
 benami transaction. 102. 
 
 fraudulent benami transaction, 106, 107. 
 
 illegality, 48, 49. 
 
 wilful default, 187. 
 
 POLICY OF ASSURANCE. 
 
 liability of trustee for not keeping up, 184. 
 mortgage of, 277. 
 
 POLICY OF LAW, trust against, 35. 
 POOR PEOPLE, trust for, 352. 
 
 POSSESSION. 
 
 of trust-estate, right of c. q. t. to, 268. 
 
 trustee not possession of true owner, 132. 
 transmutation of, not necessary to validate trust. 53. 
 
 POSTPONING enjoyment of property, trust for, 37. 
 
 POWER, 
 
 discharge of trustee from office under, 327. 
 execution of. by tenant-for-life, 460. 
 liability of trustee for not executing, 184. 
 mode of execution of. 451. 
 purchaser not bound to enquire as to, 452. 
 
 POWER AND TRUST, mixture of, 19. 
 
 POWER-OF- ATTORNEY, payment of trust-fund under, 207, 457. 
 
 POWERS of trustees generally, 211233. 
 
 PRECATORY TRUSTS, see IMPLIED TRUSTS, 78. 
 
 PREDECESSOR, liability of trustee for breach of trust of, 193. 
 See TRUSTS ACT, 1882. 
 
 PREMIUMS, liability of trustee for not paying, 181. 
 PRESIDENCY BANKS cannot be trustees, 131. 
 
 PRESUMPTION, 
 of death. 176. 
 
 resulting trust, evidence to rebut, 88. 
 
 PRINCIPAL, when applicable for maintenance of c. q. t., 226. 
 
 See TRUSTS ACT, 1882. 
 PRIORITIES. 276. 281. 
 
 PRIVATE COMPANY, investment on stock or shares of, 161. 
 PRIVATE CONTRACT, when trustees may sell by, 222. 
 
 67 
 
530 INDEX. 
 
 PRIVATE TRUSTS, 19. 
 
 PRIZES OF WAR, trusts of, 104. 464. 
 See TEDSTS ACT, 1882. 
 
 PROBATE, acceptance of trust by taking out, 121. 
 PRODUCTION of books of account. 157. 
 
 PROFESSIONAL ADVISER. 
 
 liability of, for advising breach of trust, 183. 
 
 PROFESSIONAL CHARGES of trustee when allowed, 247. 
 
 PROFIT, 
 
 member of Society registered under Act XXI of 1860 may not 
 
 make, 394. 
 
 not to receive, on dissolution. 4G2. 
 trustee may not from his office, 250. 
 
 account of, 251. 
 
 agent, 254. 
 
 auctioneer trustee, 255. 
 
 broker, 255. 
 
 buying in debts or mortgages, 252. 
 
 c. q. t. cannot give to trustee, 259,. 
 
 directors, 254. 
 
 employing trust-funds in trade, 251. 
 
 extent of liability. 256. 
 rule, 253. 
 
 guardian, 254. 
 
 inspectors under creditors' deeds, 255. 
 
 officers of companies, 255. 
 
 partners. 253. 
 
 See TRUSTEE ACT, 1880. 
 
 PROFITS, right of c. q. t. to, 268. 
 
 PROMISSORY NOTE, trustee may not invest on security of, 160. 
 
 PROOF in insolvency by trustees and executors, 240. 
 
 PROTECTING TITLE to trust-property, 137. 
 See TRUSTS ACT, 1882. 
 
 PROTECTION, 
 
 of trust-property, right of trustee to take steps for, 2 1 9. 
 See TRUSTS ACT, 1882. 
 
 PROXY, delegation of ministerial acts to, 240. 
 See TRUSTS ACT, 1882. 
 
 PUBLIC AUCTION, when trustee may sell by. 222. 
 See TRUSTS ACT, 1882. 
 
 PUBLIC FUNDS, no suit lies for account of, 217. 
 
 PUBLIC GARDEN, trust for, 352. 
 
 PUBLIC POLICY, setting aside voluntary gifts on ground of, 111. 
 
 PUBLIC PURPOSES, trust in perpetuity must be for, 355. 
 
 PUBLIC TRUSTS. 17. 
 
 all trustees need not join in executing, 241. 
 
 PUNJAB, Minors' Act in, 228. 
 
INDEX. 531 
 
 PURCHASE, 
 
 benami in name of stranger, 98. 
 by mother, no resulting trust on, 91. 
 trustee for benefit of c.q.t., 252. 
 
 for sale. 256. 
 
 duties of trustee for, 171. 
 from guardian. 292. 
 
 manager of joint Hindu family, 308. 
 in benami transactions, 98. 
 trustee, 86. 
 wife, 90. 
 
 in fictitious name, resulting trust on, 88. 
 name of child, 97. 
 
 and stranger, 94. 
 nephew, 92. 
 stranger, 86. 
 of debt by trustee or executor, 252. 
 
 insolvent's estate by creditor or assignee, 264. 
 trust-property by trustee, nature of relief granted, 289. 
 
 from c. q. t., 201. 
 with notice of trust, 104. 
 
 PURCHASE-MONEY. 
 
 liability of purchaser to see to application of, see APPLICATION OP 
 
 PUKCHASE-JIOXEY. 
 
 to whom payable, 229. 
 
 PURCHASER, 
 
 from heirs of Mahomedan debtor. 312. 
 
 trustee of ivuqf property, 387. 
 
 under execution, liability of, to see to necessity, 311. 
 with notice, following trust-estate into hands of, 292. 
 reconveyance by. 289. 
 from purchaser without, trust-property cannot be 
 
 followed into hands of, 293. 
 
 without notice from purchaser with, trust-property cannot be followed 
 in hands of. 293. 
 of benami property, 103. 
 remedy of c. q. t., 184. 
 
 trust-property cannot be followed in hands of, 293. 
 voluntary gift not set aside as against, 1 15. 
 See TRUSTS ACT, 1882. 
 
 REBUTTING, 
 
 presumption of advancement, 94. . 
 
 death, 176. 
 resulting trust, 85, 89. 
 
 RECEIPT, 
 
 all trustees must join in. 240. 
 executor joining in. for conformity. 199. 
 of trustee for purchase-money a disjharge, 446. 
 trustee joining 1 in. for conformity, 194. 
 See TRUSTS ACT, 1882. 
 
 RECEIVER, appointment of, see APPOINTMENT OF RECEIVER, 339. 
 RECOMMENDATION, when words of, create trust, 78. 
 
 RECONVEYANCE 
 
 by purchaser with notice from trustee, 289. 
 by trustee who has purchased trust-estate, 289. 
 
53:2 INDKX. 
 
 RECOVERY of debts due to trust-estate, duty of trustee as to. 137. 
 
 REDEMPTION, suit for, 28, 
 
 REFUND, liability of c. q. t. to, if overpaid, 180. 
 
 REFUSING TO ACT,' what is, 328. 
 
 REGISTER, neglect to. is breach of trust, 184. 
 
 REGISTRATION OF SOCIETIES ACT. 891. 
 
 bye-la\v, power of society registered under Act to make, 393. 
 certified copies of documents filed under Act, 396. 
 Societies 
 
 dissolution of registered, under Act, 394. 
 
 formation of, 391. 
 
 governing bodies of, 395. 
 
 inspection of documents of, 395. 
 
 judgment against, how enforced, 392. 
 
 liabilities of members of, 393. 
 
 members of, who are. 395. 
 
 memorandum of association of, 391. 
 
 power to alter, extend, or abridge purposes, 393. 
 
 profit, member may not make, 394. 
 
 purposes for which they may be registered, 39 1 . 
 
 registration of, formed before Act, 395. 
 
 suits by and and against, 392. 
 
 vesting of property of, 392. 
 
 what, subject to Act, 396. 
 
 REIMBURSEMENT OF TRUSTEE, 
 accounts must be kept, 214. 
 advances, 214. 
 
 in respect of different estates, 216. 
 
 interest on, 216. 
 
 lieu for. 215. 
 
 suit to recover, 216. 
 
 allowed without express provision in trust-deed, 212. 
 costs. 213. 
 
 employment of agents, 212. 
 expenses, out-of-pocket, 212. 
 fees to counsel. 2 1 2. 
 indemnity to trustees, 216. 
 legal adviser, 212. 
 lien for advances, 215. 
 management, expenses of. 214. 
 of trustee, personal liability of c. q. t., 216. 
 repairs. 215. 
 
 travelling expenses. 212. 
 wrongful act of agent. 215. 
 
 Sec TRUSTS ACT, 1882. 
 
 RELATIVES should not be appointed trustees, 132, 28*. 
 
 RELEASE 
 
 of debts. 272. 
 
 trustee who has committed breach of trust. 192. 
 on handing over assets, 177. 
 
 RELIGIOUS ENDOWMENTS ACT, 396. 
 accounts, 401. 
 
 district committee may call for, 399. 
 may be filed in Court, 406. 
 
INDEX. 533 
 
 RELIGIOUS ENDOWMENTS ACT (continued). 
 appointment of committee, etc.. 39l>. 
 
 trustee by Court, 399. 
 committee, appointment of, 399. 
 
 no member of. to be trustee, 400. 
 suit against, 401. 
 tenure of office of. 400. 
 transfer of property to. 401. 
 vacancies in, how filled. 4<>0. 
 who may be member of, 400. 
 costs of suit. 404. 
 
 Court, appointment by, of trustee, etc., 399. 
 criminal breach of trust, 406. 
 dismissal of trustee. 398. 
 election of committee. 400. 
 endowments within Act. 396. 
 
 partly religious and partly secular. 400 
 leave to institute suit, 404. 
 manager, appointment of, 396. 
 to keep accounts, 401 . 
 suit against, 401. 
 mosques. 396. 
 regulations repealed. 397. 
 succession to trusteeship. 398. 
 suit in respect of trust, 401. 
 temples, 396. 
 transfer of property to committee. 401. 
 
 trustee, 398. 
 trustee, accounts of, 401. 
 
 appointment of. by Court, 399. 
 dismissal of. 398. 
 rights and powers of, 399. 
 suits against. 401. 
 
 RELIGIOUS HOUSES, gifts to, 4. 
 
 RELIGIOUS SOCIETIES ACT, 1880, p. 461. 
 adjustment of affairs of societies. 462. 
 appointment of new trustees. 461. 
 costs of application to High Court, 463. 
 dissolution of societies, 462. 
 new trustees, appointment of. 461. 
 petition for opinion of High Court. 4fi3. 
 profit, members of society not to receive on dissolution, 462. 
 questions may be submitted to High Court. 463. 
 record of appointment of new trustees. 4fil. 
 saving of existing modes of appointment, 462. 
 vesting property in new trustees, 462. 
 
 RELIGIOUS TRUSTS, 14, 349. 
 
 Advocate-General, powers of, as to, 363. 
 alienation of estates devoted to, 369. 
 altering scheme of. 358. 
 
 under Civil Procedure Code, 363. 
 appointment of new trustees, 365. 
 apportionment of fund bequeathed for, 360. 
 breach of trust, 362. 
 
 redress for. 363. 
 
 representatives of testator may sue, 364. 
 
 worshippers of idol, 364. 
 certainty in gift requibite, 355. 
 
534 INDEX. 
 
 RELIGIOUS TRUSTS (continued). 
 
 Civil Procedure Code, provisions of, as to. 363. 
 controlling revenue, duty of visitors as to, 367 
 f/f j-h, doctrine of. as applied to, 3.17. 
 devise of immoveable property for, 352. 
 failure of objects. 359. 
 
 liability of trustees of to account, 364. 
 
 limitation of suits respecting, 364. 
 new trustees, of appointment of, 305. 
 
 under Religious Societies Act, 365. 
 objects of, 352. 
 
 bibles, 353. 
 
 churches, 353. 
 
 dissenters. 352. 
 
 masses. 350. 
 
 ministers of churches. 353. 
 
 prayers for the benefit of the soul, 350. 
 Official Trustee may not hold. 409. 
 principles of construing will containing, 357. 
 provisions of Succession Act as to devises for. 352. 
 purchaser without notice from purchaser with notice, 368. 
 Religious Societies Act, provisions of, as to appointment of new 
 
 trustees, 365. 
 scheme for carrying out. 362. 
 
 security for costs of suit respecting when to be given, 364. 
 
 superstitious uses. 350. 
 
 vesting property in trustees of, 367. 
 
 visitors, duties of, 367. 
 
 RELIGIOUS TRUSTS AMOXG HINDUS, 
 alienation of trust-property, 374 
 celibacy of manager, 378. 
 
 certain, gifts to must be, 370. 
 
 colourable gift to idol, 370. 
 
 creation of trust, 369. 
 
 devise subject to trust. 373. 
 
 election of manager, 378. 
 
 enjoyment of endowed property, 376. 
 
 evidence of endowment, 379. 
 
 execution of trust, 380. 
 
 gifts by Oudh taluqdars, 371. 
 
 how far sale of trust-property set aside, 375. 
 
 limitation. 377. 
 
 management vested in different persons, 377. 
 
 manager bound to celibacy, succession to trust in case of, 378. 
 
 Mitakshara law. 369. 
 
 Oudh Taluqdars' Act, 371. 
 
 partition subject to trust, 374. 
 
 proof of succession, 377. 
 
 removal of mohunt or trustee. 379. 
 
 reversion of managership, 379. 
 
 sale of turn of worship. 375. 
 
 subject to trust. 374. 
 succession to trusteeship, 376. 
 tenure in trustee, nature of, 371. 
 trust irrevocable, 380. 
 trustee may not benefit by trust, 375. 
 
 REMEDY for breach of trust, see BREACH OP TRUST ; RELIGIOUS 
 TRUSTS ; TRUSTS ACT, 1882. 
 
INDEX. 5.35 
 
 REMOVAL, 
 
 of Hindu widow from management, 147. 
 Official Trustee. 408. 
 trustee of idol, 379. 
 
 wuqf property, 387. 
 suit for, 284. 
 
 REMUNERATION OF TRUSTEE. 242. 
 as general rule not allowed, 242. 
 Administrator-General, 250. 
 agent becoming executor, 243. 
 
 expenses of. 249. 
 
 auctioneer also mortgagee selling trust-property. 243. 
 author of trust may fix, 247. 
 carrying on business of deceased partner, 243. 
 committee of lunatic's estate, 243. 
 contract with c. q. t., 248. 
 curators, 249. 
 
 estoppel of tf. q. t. by settled account, 247. 
 expenses of agent, 249. 
 gift coupled with duty, 248. 
 mortgagee 243. 
 Official Trustee, 249, 409. 
 out-of-pocket expenses, 244. 
 paid agents, 249. 
 professional charges, 244, 247. 
 receiver, 243, 448. 
 
 solicitor-trustee, charges for professional services by, 244. 245 
 surviving partner, express trustee not allowed remuneration for 
 
 carrying on business, 243. 
 trustee appointed by Court. 246. 
 See TRUSTS ACT, 1882. 
 
 RENEWAL OF LEASE 
 
 by mortgagee, constructive trust on, 109. 
 trustee, 107. 
 
 RENOUNCE, trustee cannot, after acceptance, 234. 
 See TRUSTS ACT, 1882. 
 
 RENTS, right of e. q. t to. 268. 
 
 See TRUSTS ACT, 1882. 
 
 REPAIRS, 
 
 allowance to trustee for, when ordered to reconvey, 290. 
 right of trustee to be reimbursed money expended on, 215. 
 when trustee may expend money on, 221. 
 
 REPRESENTATIVES, 
 
 for purposes of suit, 343. 
 
 of c. q. t., suit against, to recover advances, 216. 
 trustee, discharge of. by Court. 333. 
 
 liability of. for his breach of trust, 1 82. 
 when necessary parties to suit, 343. 344. 
 setting aside voluntary gift at instance of donor's, 118. 
 
 RESALE. 
 
 conditions of sale as to, 224. 
 delay in making, 225. 
 
 of property wrongfully purchased by trustee, 291. 
 See TRUSTS ACT, 1882. 
 
 RESCINDING CONTRACT, conditions of sale as to, 224. 
 
536 INDEX. 
 
 RESERVED BIDDING, trustee for sale may fix, 180. 
 
 RESIDENCE ABROAD when ground for appointment of new trustee, 
 330. 
 
 See TRUSTS ACT, 1882. 
 
 RESTORING TRUST FUND to original state, 167. 
 RESTRAINT ON ALIENATION, 37, 40. 
 
 RESULTING TRUSTS, 11. 
 
 advancement, purchase in name of wife or child raises presumption 
 of, 90. 91. 
 
 rebuttal of presumption , 94. 
 
 conveyance to stranger without consideration, 90. 
 devise of property purchased in name of wife or child, 95. 
 dividends received by father, 95. 
 evidence to rebut presumption of advancement. 94. 
 
 resulting trust. 85. 
 
 expression of wish as to application of purchase-money, 87. 
 fiduciary relation. 92. 
 illegal purpose, 85. 
 intention to exclude heirs, 84. 
 joint purchase. 87. 
 tenancy. 94. 
 no trust declared, 86. 
 
 parol evidence on part of person paying purchase-money, 88. 
 to whom conveyance made. 88. 
 
 rebut presumption of resulting trust, 85. 
 
 as to part of property, 89. 
 possesfeion by father, 95. 
 presumption of advancement, 91. 
 
 rebuttal of, 94. 
 
 purchase by mother in name of child. 91. 
 in fictitious name, 88. 
 in name of child and stranger, 94. 
 
 fully advanced, 96. 
 nephew. 92. 
 reputed wife, 91. 
 trustee, 86. 
 stranger. 87. 
 wife or child, 90. 
 
 void as against creditors, 92. 
 purchase-money unpaid. 94. 
 Statute of Frauds, 89. 
 subsequent acts and declarations, 95. 
 surroiiuding circumstances. 93. 
 transfer of stock into name of another, 86. 
 trust declared of part of estate, 86. 
 
 vague. 86. 
 undisposed of interest, 83. 
 
 RETIRE, payment to trustee to, 330. 
 RETIREMENT of trustee from office, 326. 
 
 RETIRING 
 
 from trust, what is. 328. 
 
 trustee whether bound to appoint successor, 331. 
 
 REVERSION of right to manage debiittin- property, 379. 
 
 REVERSIONARY HEIR, suit by, to restrain Hindu widow from commit- 
 ting waste, 145. 
 
INDEX. 537 
 
 REVOCATION, 
 
 conveyance with power of, 68. 
 of creditor's deed, 73. 
 
 trust. 59, 336. 
 
 wuqf , 384. 
 
 ROMAN CATHOLICS, trust for, 353. 
 
 SALARY of person employed by direction of author of trust, 215. 
 
 SALE, 
 
 by benamidar, setting aside, 103. 
 
 father governed by Mitakshara law, 308. 
 
 manager of joint Hindu family, setting aside, 307. 
 
 son to father, onus of proving validity of, 112. 
 discretionary trust for, cannot be exercised by infant, 127. 
 duties of trustee for, 168. 
 of charity-property, suit for, 363. 
 
 debuttur property, 376. 
 
 property subject to trust for idol, 374. 
 
 trust-property how to be made, 222. 
 
 turn of worship, 376. 
 time within which to be made, 172. 
 trustee for, cannot purchase trust-estate, 356. 
 
 remedy of c. q. t. on to purchaser without notice, 184. 
 
 See TRUSTS ACT, 1882. 
 
 SANAD, trust of property held under, 127. 
 
 SCHEME 
 
 of charity, alteration of, by Court, 358. 
 suit respecting, 363. 
 
 SCHOOL, trust for, 352. 
 
 SEBAIT. purchase of debuttur property from, 307. 
 
 SECOND MORTGAGE, investment on, 163. 
 
 SECURITIES, 
 
 duty of trustee to realize, 137. 
 
 upon which trustee may invest, see INVESTMENT ; TRUSTS ACT 1882. 
 SECURITY, 
 
 trustee about to abscond may be required to give. 182. 
 
 on payment out of trust-fund after presumption of death of c. q t 
 arises, 177. 
 
 SEISIN, 3. 
 
 SELECTION of objects of trust, discretion of trustees as to, not inter- 
 fered with, 153. 
 
 SEPARATE ACCOUNT, duty of trustee to keep, at bank, 140. 
 SEPARATE USE. 
 
 married woman cannot assign property settled to her, 274. 
 nor claim fund so settled, 272. 
 
 See TRUSTS ACT, 1882. 
 SERVICE of petition, 459. 
 SET-OFF, 
 
 assignee of equitable interest takes subject to any right of. 274 
 
 See TRUSTS ACT. 1882. 
 not allowed in respect of breach of trust. 192. 
 
 right of solicitor to payments against receipts, 216. 
 
 Sec TUUSTS ACT, 1682. 
 
 68 
 
538 INDEX. 
 
 SETTING ASIDE. 
 
 purchase of trust-estate by trustee. 2.59. 
 sale by manager of joint Hindu family. 307. 
 
 debvttur property, 375. 
 voluntary settlement, 59. 
 
 gifts, 194. 
 See CONSTRUCTIVE TRUSTS. 
 
 SETTLEMENT, 
 
 of accounts, right of trustee to, 219. 
 rectification of, 72. 
 
 SETTLOR, when he may defeat settlement, 67. 
 SEVERAL LIABILITY of trustees, 206. 
 
 See TRUSTS ACT, 1882. 
 SEVERING DEFENCE, effect of, 345, 346. 
 SHARE in trust-fund, payment of, into Court, 338. 
 
 SHARES, 
 
 investment in, 161. 
 mortgage of, 277. 
 
 SIMPLE TRUST, 18. 
 
 SINGLE TRUSTEE, payment out of Court to, 180. 
 SISTER, gift by younger to elder, setting aside, 115. 
 SOLDIERS, trust for, 352. 
 
 SOLICITOR, employment of, to invest, 236. 
 has no lien, 215. 
 
 liability of, for breach of trust by partner, 183. 
 not entitled to receive purchase-money on sale, 229. 
 
 notice of equitable assignment to of trustees, 280. 
 
 remuneration of when trustee, 245, 249. 
 
 Betting aside gift by client to, 114. 
 when constructive trustee, 110. 
 
 SON, purchase benami in name of. 98. 
 See RESULTING TRUSTS. 
 
 SOVEREIGN, 
 
 may be trustee, 129. 
 create trust, 124. 
 
 SPECIAL CONDITIONS of sale. 224. 
 
 See TRUSTS ACT, 1882. 
 SPECIFIC MOVEABLE PROPERTY, power to sue for, 137. 
 
 SPECIFIC PERFORMANCE, 
 
 not enforced against trustees selling by mistake at under-value, 169. 
 parties to suit for, 342. 
 
 SPECIFIC POWER, execution of, 241. 
 
 SPECIFIC RELIEF ACT, 
 
 s. 3. p. 15. 
 
 s. 10, p. 137. 
 
 s. 11. p. lot 1 ,. 
 
 S. 12, p. 271. 
 
 s. 54, pp. 286, 287. 
 
 SPECIFIC TRUST, 18. 
 
INDEX. 539 
 
 SPIRITUAL ADVISER, setting aside voluntary gift to, 111, 112. 
 STAKE-HOLDER, trustee is merely a, 182. 
 
 STAMP 
 
 on orders under Trustee Act, 441. 
 
 transfer of trust-property to new trustee, 330. 
 
 STANDING BY on sale by benamidar, 103. 
 
 STATUTE OF FRAUDS, 
 
 declarations of trust under, 52. 
 provisions of. as to resulting trusts, 89. 
 
 STATUTE OF USES, 6. 
 
 STOCK, 
 
 directions as to transfer of, under Trustee Act. 433. 
 liability of trustee for not enforcing' transfer of, 184. 
 of private company, investment on, 161. 
 resulting trust on transfer of. into name of another, 86. 
 vesting order as to, under Trustee Act, 425. 
 
 STOP ORDER, 281. 
 
 STRANGER, 
 
 purchase benami in name of, 98. 
 
 resulting trust on purchase in name of, see RESULTING TRUST. 
 
 Betting aside gift as against, 115. 
 
 STRANGERS, parties to suits by and against, 341. 
 STRIDHAN, trust of, 125. 
 SUB-INFEUDATION, 2. 
 
 SUBJECT-MATTER OF TRUST, 25, 467. 
 to be pointed out on declaration, 52. 
 See TBUSTS ACT, 1882. 
 
 SUCCESSION 
 
 to office of mutawalli. 388. 
 
 trusteeship of idol, 376. 377. 378, 
 
 under Act XX of 1863, 398. 
 
 SUCCESSION ACT, 
 
 s. 101, pp. 26, 27, 39. 
 s. 105. pp. 352, 371. 
 SB. 187, 190, p. 342. 
 
 SUCCESSOR, whether retiring trustee must appoint, 331. 
 
 SUITS, 
 
 agninst trustees, limitation of, 303. 
 between trustees and c. q. t., parties to, 343. 
 by and against Official Trustee, 411. 
 
 creditors against benamidar. 104. 
 
 purchasers of equitable interest for conveyance, 273. 
 
 real owner against benamidar, 104. 
 
 strangers to trust, 341. 
 
 trustee to recover advances. 216. 
 duty of trustees to bring and defend. 137. 
 for appointment of new trustees. 284. 
 
 delivery up of title-deeds. 212. 
 
 execution of trust. 282. 
 
 land beyond jurisdiction. 27. 
 
 possession, on waste by Hindu widow, 146. 
 
54-0 INDEX. 
 
 SUITS (continued). 
 
 in respect of religious establishments under Act XX of 1863, p. 401, 
 necessary parties to, 284, 331, 341. 
 respecting charities, 363. 
 to administer trusts, 217. 
 carry out purchase, 171. 
 compel trustee to convey, 269. 
 
 do act of duty, 287. 
 discharge trustees, 331. 
 
 have proper number of trustees appointed, 284. 
 remove trustees. 284. 
 restrain waste by tenant- for-life, 142. 
 Hindu widow, 145. 
 trustees may not deal with trust-property after institution of, 168. 
 
 SUPERSTITIOUS USES, trust for, 350. 
 SURETIES, trustee not appointed without, 340. 
 SURPRISE, setting aside voluntary gift on ground of, 111. 
 
 SURVIVAL OF TRUST, 335. 
 
 See TRUSTS ACT, 1882. 
 
 SURVIVING PARTNER carrying on business, remuneration of, 243. 
 SURVIVOR, appointment of new trustee by, 328. 
 
 SUSPENSION of trustees' power after decree, 232. 
 See TRUSTS ACT, 1882. 
 
 TAXATION OF COSTS, 213. 
 
 TECHNICAL WORDS not necessary to declaration of trust, 52. 
 
 TEMPLES, 
 
 provisions of Act XX of 1863 as to, 396. 
 
 trusts for, 14. 
 
 trustee of, cannot renounce after acceptance, 234. 
 
 TENANT purchasing land on sale for arrears of Government revenue is 
 a constructive trustee, 109. 
 
 TENANT-FOR-LIFE, 
 
 trustee authorized to lend on personal security may not lend to, 266. 
 waste by, 142 5. 
 
 TENURES, 1. 
 
 TIMBER, when trustee may cut down, 173. 
 
 TIME, 
 
 for realizing assets, 221. 
 
 of essence of contract, conditions of sale as to, 224. 
 within which sale to be made, 172. 
 See TRUSTS ACT, 1882. 
 
 TITLE, 
 
 duty of trustee for purchase to obtain, 171. 
 in third persons, duty of trustees as to, 156. 
 
 of i'. q. t., right of trustee to have proof of, before distributing trust- 
 fund, 175. 
 to trust-property, duty of trustee to protect, 137. 
 
 trustee cannot set up adverse to trust-property, 155. 
 
 trustees for sale bound to make a good, 170. 
 See TRUSTS ACT. 1882. 
 
INDEX. 541 
 
 TITLE-DEEDS. 
 
 custody of : 272. 
 
 right of trustees to, 21 1. 
 
 suit for delivery up of, 212. 
 
 See TRUSTS ACT, 1882. 
 
 TITLE OF HONOUR, trust of, 26. 
 
 TOMBS, trusts for, 49 ; 354. 
 
 TOWN, trust for a. 354. 
 
 TRADE, liability of trustee for employing trust-money in, 251, 314. 
 
 TRANSFER, 
 
 of property of religious establishment to committee, 401. 
 
 to trustees of religious establishment, 398. 
 stock into name of another, resulting trust on, 86. 
 "'"//property. 386. 
 
 payment of trust-fund with notice of, 208. 
 under Trustee Act, 421. 
 
 See TRUSTS ACT, 1882. 
 
 TRANSFERREE from c. q. t., rights of, 324. 
 
 TRANSMUTATION of possession not necessary to validate trust, 53. 
 
 TRAVELLING EXPENSES, right of trustee to be reimbursed, 212. 
 
 TRUST, 
 
 alienation of muqf lands subject to, 386. 
 
 acceptance of. 120. 
 
 appointment of trustee for purpose of committing breach of, 330. 
 
 by operation of law. see CONSTRUCTIVE TRUST ; IMPLIED TRUST ; 
 
 RESULTING TRUST. 
 creating perpetuity, 37. 
 declaration of, see DECLARATION OP TRUST. 
 definition of, 16. 
 
 in Trusts Act, 464. 
 
 disclaimer of. by renunciation of probate. 122. 
 extinction of, 335. 
 for accumulation, 37. 
 
 bathing ghat. 14. 
 
 charity, see CHARITABLE TRUST. 
 
 creditors, 14. 
 
 revocation of, 73. 
 See CREDITORS. 
 
 future illegitimate children 35. 
 
 idol, 14, 370. 
 
 execution of. 380. 
 
 immoral purposes. 35. 
 
 payment of debts, 76. 
 
 purpose of defrauding creditors, 59. 
 
 religious purposes. 1 4. 
 
 See RELIGIOUS TRUSTS. 
 
 sale, see SALE. 
 
 forbidden by law, 35, 37, 465. 
 founded upon illegal contract, 35. 
 implied, see IMPLIED TRUST. 
 incomplete not enforced against settlor, 53. 
 intended as fraud on Act, 35. 
 not allowed to fail for want of trustee, 282. 
 object of, must be lawful, 32. 
 of equitable interest, 56. 
 
542 INDEX. 
 
 TRUST (continued). 
 
 of immoveable property 
 
 beyond jurisdiction, 26, 49. 
 in colonies. 29. 31. 
 in foreign country, 29, 49. 
 moveable property, 25. 
 
 abroad, 32. 
 part of estate, 86. 
 peerage, 26. 
 
 title of honour, 26. 
 
 parties to suit respecting, see PARTIES TO SUITS, 
 partly lawful and partly unlawful, 49. 
 postponing enjoyment of property. 37. 
 
 property, cannot be followed into hands of purchaser without notice 
 from purchaser with notice. 293. 
 nor into hands of purchaser with notice from 
 
 purchaser without, 293. 
 conveyance of, to c. q. t., 175. 
 distribution of, 175. 
 
 duty of trustee to acquaint himself with state of, 134. 
 employment of, by partner in business, 319. 
 following after conversion, 294. 
 restraining alienation, 37, 40. 
 revocation of, 59. 
 
 right of c. q. t. to execution of, 271. 
 subject-matter of. 25. 
 suit for administration of, 217. 
 survival of. 335. 
 to cease on happening of particular event, 46. 
 
 insolvercy, 41, 45. 
 to sell, resulting trust on, 85. 
 trustee cannot renounce after acceptance of, 234. 
 
 vacate office till performance of, 326. 
 who may create, 124, 467. 
 
 TRUSTS ACT, 1882. 
 
 abroad, person domiciled, not a proper trustee, 484. 
 
 residing, when ground for appointment of new trustee, 489. 
 absence when ground for appointment of new trustee, 489. 
 acceptance of trust. 4G7. 
 
 trustee cannot renounce after, 481. 
 accounts, beneficiary has right to copies of, 483. 
 settlement of , 477. 
 trustee to keep. 471. 
 
 accumulation of property of minor, 479. 
 acquiescence by beneficiary in breach of trust, 472. 
 acquisition by trustee of property wrongfully converted, 486. 
 act of duty, performance of, may be compelled. 4So. 
 Administrator-General, remuneration of, not affected by Act, 482. 
 advancement of minors. 479. 
 
 advantage gained by fiduciary character, trust on, 493. [495. 
 
 secretly gained by one of several compounding creditors, 
 adverse title, trustee may not set up, to trust-property, 469. 
 advice of Court, application for, 477. 
 agent gaining advantage by fiduciary character, trust on, 493. 
 
 of trustee for sale may not buy trust-property, 482. 
 alien enemy not a proper trustee, 484. 
 application for opinion of Court, 477. 
 appointment of new trustee, 481). 
 discharge of trustee by, 488. 
 
INDEX. - 543 
 
 TRUSTS ACT, 1882 (continued). 
 
 arbitration, power of trustee to submit to. 480. 
 attorney, delegation of ministerial act to, 481. 
 auction, sale by, 478. 
 beneficial interest, trust of, 4(57. 
 beneficiary, breach of trust by. 472. 
 
 consent by, to delegation of trust, 481. 
 
 investment when required, 472. 
 remuneration of trustee, 481. 
 varying investments, 477. 
 definition of, 465. 
 discharge of trustee by, 488. 
 disclaimer by, 467. 
 
 entitled to accounts and information, 471. 
 forfeiture of interest of, to Government, 475. 
 inspection of documents by. 483. 
 joining in breach of trust, liability of, 487. 
 reimbursement of trustee by. 476 
 rents and profits of trust estate, rights of, to, 483. 
 revocation of trust by. 491. 
 
 rights and liabilities of. generally, 483. [485. 
 
 right of, to compel performance of act of duty by trustee, 
 proper number of trustees, 464. 
 restrain breach of trust, 485. 
 specific execution of trust. 483. 
 suit by, for specific execution of trust, 484. 
 transfer of beneficial interest of. 484 
 
 possession of trust-property to, 483. 
 who may be, 467. 
 bequest, for illegal purpose. 493. 
 
 revocation of. prevented by coercion, trust on, 493. 
 blended property, rights in case of. 487. 
 breach of trust, beneficiary joining in, 487. 
 definition of, 465. 
 
 indemnity to trustee from gainer by, 476. 
 liability of trustee for, 472. [474. 
 
 for breach of trust of co-trustee or predecessor, 
 loan by trustees to themselves. 482. 
 purchase by trustee of trust-property, when, 482. 
 restiaining commission of. 485. 
 set-off not allowed in respect of, 474. 
 buy, trustee for sale may not. 482. 
 buy in, power of trustee to. 473. 
 calling in trust-property, 478. 
 care required from trustee, 469. 
 certainty in declaration of trust requisite, 466. 
 charitable trusts, not subject to Act, 464. 
 coercion, revocation of bequest prevented by, trust on, 493. 
 compound interest, when payable, 473. 
 compounding debts. 480. 
 concurrence in breach of trust, 472. 
 conditions, power of trustee to make special. 478. 
 conformity, trustee joining in receipt for, 474. 
 consent to delegation of trust, 481. 
 investment, 472. 
 
 remuneration of trustee after acceptance, 481. 
 varying investments, 479. 
 
 consideration, transfer of property for paid by another, 492. 
 
 constructive trust. 495. 
 
544 INDEX. 
 
 TRUSTS ACT, 1882 (continued'). 
 
 contract, every person competent to may create trust, 4C7. 
 
 sale by, 478. 
 
 contribution between co-trustees, 475. 
 control, by Court, of discretionary power, 481. 
 conversion of perishable property, 470. 
 convey, power of trustees to, 478. 
 copies of documents, right of beneficiary to, 483. 
 costs of petition for advice of Court, 477. 
 
 to discharge trustees, 489. 
 co-trustees, cannot act singly, 481. 
 
 contribution between, 475. 
 disclaimer by one of several, 467. 
 may not lend to themselves, 482. 
 several liability of, 475. 
 trustees, when liable for default of, 474. 
 Court, application for advice or opinion of. 477. 
 appointment of new trustees by. 489. 
 consent of, to application of principal towards expenses of 
 
 minor, 479. 
 
 control of discretionary power by, 481. 
 discharge of trustee by, on petition. 488. 
 purchase of beneficiaries' interest with leave of, 482. 
 renunciation of trust after acceptance, with leave of. 481. 
 creation of trust. 466. 
 curator, remuneration of, 482. 
 custody of title-deeds, right of trustees to, 476. 
 death, vacation of office of trustee by, 488. 
 debentures, investment on, 471. 
 debtor becoming creditor's representative, 493. 
 debts, compounding, 480. 
 
 trust for payment of, 468. 
 declaration of trust, 466. 
 decree, suspension of trustee's powers by, 480. 
 definitions in Act, 464. 
 delegation of trust, 481. 
 
 director, gaining advantage by reason of fiduciary character. 493. 
 disabilities of trustees, 481. 
 discharge of trustees, 488. 
 disclaimer, by beneficiary, 467. 
 
 trustee. 467. 
 
 discretionary power, control of, by Court, 471. 481. [467. 
 
 trust, person not competent to contract cannot execute. 
 
 domicile, person having his abroad not proper trustee, 484. 
 
 duties of trustees, 468. 
 
 education of minors, 479. 
 
 execute trust, trustee bound to, 468. 
 
 execution of trust, suit by beneficiary for, 484. 
 
 executor gaining advantage by reason of fiduciary character, trust on, 
 
 493. 
 
 expenses, reimbursement of trustee for, 476. 
 extinction of trust, 490. 
 
 discharge of trustee by, 488. 
 extent of Act, 464. 
 
 fiduciary character, advantage gained by, trust on, 493. 
 following trust-property. 486. 
 forbidden by law. 465. 
 
 forfeiture of beneficiaries' interest to Government. 475. 
 funeral, power of trustee to apply property of minor for, 479. 
 
INDEX. 545 
 
 TRUSTS ACT. 1882 (continued). 
 
 Government Savings Bank, deposit in. 472. 
 securities, investment in, 471. 
 
 Hindu family, law relating to. not affected by Act, 4<>1. 
 illegal purpose, bequest for, 493. 
 transfer for. 493. 
 
 immoral, trust must not be for purposes, 465. 
 
 immoveable property, trust for, 466. 
 
 impartial, trustee to be. 470. 
 
 incapable to act. appointment of new trustee in place of trustee. 489. 
 
 indemnity from gainea by breach of trust, 476. 
 
 of trustees. 475. 
 
 information, trustee to give. 411. 
 injunction to restrain breach of trust, 485. 
 insolvent not proper trustee, 484. [trustee. 489. 
 
 trustee becoming ground for appointment of new 
 
 inspection of documents. 483 
 instrument of trust, definition of. 465 
 
 right of trustees to custody of, 476. 
 interest, trustee when liable to pay. 473. 
 investment of trust-property, 471. 
 
 varying. 478. 
 
 involuntary losses, indemnity from, 475. 
 joining in breach of trust, liability of beneficiary for, 487. 
 
 receipt for conformity, liability of trustee for, 471 
 lawful purpose, trust must be for, 465. 
 lease by trustees. 477. 
 leasehold property, investment on, 471. 
 legal adviser gaining advantage by fiduciary character, 493. 
 liability of beneficiary joining in breach of trust, 487. 
 trustee for breach of trust, 472. 
 
 generally. 468. 
 
 loan, by trustees to themselves. 482. 
 
 loss of time, trustee has no right to remuneration for, 482. 
 lots, sale of trust-property in, 478. 
 maintenance of minor. 479. 
 
 management of trust, application for opinion of Court as to. 477. 
 marriage, power of trustee to apply property of minor for. 479. 
 married woman cannot alienate property settled to separate use, 483 
 
 not generally proper trustee, 484. 
 ministerial acts, delegation of. 481. 
 
 minor : advancement, education, and maintenance of, 479. 
 when a proper person to be trustee, 484. 
 trust may be created by, 467. 
 
 mix, trustee may not trust-property with his own, 487. 
 
 money, following trust-property wrongfully converted into. 486. 
 mortgage, investment on, 471. 
 
 of land pledged to Government, investment on, 472. 
 moveable property, trust for, 466. 
 
 necessary delegation of trust. 481. % 
 
 uew trustees, appointment of. 489. 
 
 not liable for predecessor's default, 474. 
 powers of, 400. 
 rules for selection of. 490. 
 vesting trust-property in. 490. 
 
 non-liability of trustee paying without notice of transfer by bene- 
 ficiary. 475. 
 
 notes, following trust-property converted into, 486. 
 notice, definition of. 4 '>.". 
 
 C9 
 
5 40 INDEX. 
 
 TRUSTS ACT, 1882 (continued'). 
 
 notice of transfer, non-liability of trustee paying without. 475. 
 
 saving of rights of purchaser without, 486. 
 number of trustees, right of beneficiary to proper, 484. 
 obligations in nature of trust, 491. 
 Official Trustee, remuneration of, 482. 
 
 when he may be new trustee, 489. 
 opinion of Court, application for, 477. 
 overpayment, right of trustee to be recouped for, 476. 
 partner, employment of trust-property in business by, 487. 
 
 gaining advantage by fiduciary character, 493. 
 perishable property, conversion of. 47U. 
 personal liability of beneficiary to reimburse tru^ee, 476. 
 personal security, investment on, 482. 
 petition for advice of Court, 477. 
 
 appointment of new trustee, 489. 
 discharge, 488. 
 
 power, exercise of. after death or disclaimer, 480. 
 principal, application of, towards expenses of minor, 479. 
 prizes of war, trusts of, not subject to Act. 464. 
 
 profit, trustee may not from office, 482. 
 
 profits, beneficiary has right to, 483. 
 
 property acquired with notice of existing contract, trust of, 495. 
 
 proxy, delegation of ministerial act to, 481. 
 
 public policy, trust must not be contrary to, 465. [495. 
 
 purchase by person contracting to buy property to be held on trust, 
 
 trustee of trust-property, remedy in case of, 485. 
 of beneficiaries' interest by trustee, 482. 
 
 trustee for or sale may not buy trust-property, 482. 
 
 purchaser in good faith, saving of rights of, 486. 
 
 purpose of trust, must be declared, 4(56. 
 
 qualified owner, trust of, advantage gained by, 494. 
 
 rate of interest. 473. 
 
 ratification of sale of trust-property to trustee, 486. 
 
 receipt, trustee joining in, for conformity, 474. 
 
 of trustees, 479. 
 
 refusing to act, appointment of new trustee in place of trustee. 489. 
 registered, definition of. 465. 
 reimbursement of trustees, 476. 
 religious trusts not subject to Act, 464. 
 
 worship, power of trustees to apply property of minor 1'or ex- 
 penses of. 479. 
 
 remuneration of trustees, 482. 
 renounce, trustee cannot, after acceptance, 481. 
 rents, beneficiary has right to, 483. 
 
 representative, following trust-property into hands of, 486. 
 re-sell, power of trustee to, 478. 
 revocation of trust, 490. 
 rules for selection of new trustee. 490. 
 sale by trustees directed to sell within specified time. 472. 
 powers of trustees for, 478. 
 trustee for. may not buy trust-property. 482. 
 securities, what are proper for investment, 471. 
 separate use. married woman cannot alienate property settled to 
 
 her , 483-4. 
 
 service of petition for advice of Court, 477. 
 
 set-off not allowed in respect of breach of trust, 474. 
 
 settlement of accounts, 477. 
 
INDEX. ."47 
 
 TRUSTS ACT, 1882 (continued). 
 
 several liability of co-trustees, 475. 
 
 shares, investment on, 471. 
 
 skill, trustee has no right to remuneration for, 482. 
 
 special conditions, power of trustee to make. 478. 
 
 specific execution of trust, right of beneficiary to, 483. 
 
 specified time, sale by trustee directed to sell within, 472. 
 
 stock, investment on, 471. 
 
 subject of trust, 467. 
 
 suit by beneficiary for execution of trust, 484. 
 
 to protect trust-property, 469. 
 survival of trust. 490. 
 
 suspension of trustee's powers by decree, 480. 
 state of trust-property, trustee to inform himself of, 469. 
 time for selling trust-property. 478 
 
 giving for payment of debts, 480. 
 
 title to trust-property, trustee to protect, 469. 
 
 trustee not to set up adverse to trust-property, 469. 
 
 title-deeds, right of trustee to custody of, 476. 
 transfer for illegal purpose, 492 
 
 non-liability of trustee paying without notice of, 475. 
 of beneficial interest, 484. 
 
 possession of trust-property, right of beneficiary to, 483. 
 trust-property wrongfully purchased, 485. 
 pursuant to rescindable contract. 493. 
 to one for consideration paid by another, 492. 
 transferree from beneficiary, rights and liabilities of. 488. 
 trouble, trustee has no right to reimbursement for, 482. 
 trust, beneficiary joining in breach of trust. 487. 
 definition of, 464. 
 delegation of, 481. 
 disclaimer of, 467. 
 extinction of. 490. 
 for payment of debts, 468. 
 impossibility of performance of, 490. 
 incapable of execution, 492. 
 liability for breach of, 472. 
 obligations in nature of, 491. 
 
 on transfer to one for consideration paid by another, 492. 
 revocation of, 491. 
 survival of, 490. 
 
 trust-property, definition of. 465. 
 following, 486. 
 investment of, 471. 
 
 must be described on declaration of trust, 466. 
 trustee may not profit from, 482. 
 
 not to set up adverse title to. 492. 
 to inform himself of state of, 469. 
 
 protect title to, 469. 
 vesting in new trustees, 490. 
 trustees, accounts by, 471. 
 
 acquisition of property wrongfully converted by. 487. 
 adverse title to trust-property may not be set up by. 469. 
 application by, for advice or opinion of Court, 477. 
 appointment of new, 489. 
 auction, may sell by, 478. 
 breach of trust by, 472. 
 buy in, power of, to. 478. 
 cannot act singly. 481. 
 
5-itS INDEX. 
 
 TRUSTS ACT. 1882 (continued). 
 trustees, care required from, 469. 
 
 charge by, for services not allowed, 482. 
 
 conditions of sale, may require special, 478. 
 
 contract, may sell by. 478. 
 contribution between. 17."). 
 conversion of perishable property by, 470. 
 conveyance by, 478. 
 definition of, 465. 
 delegation of trust by, 481. 
 disabilities of, 481. 
 discharge of, 488. 
 
 discretionary power of, not generally controlled, 471. 
 when Court may control, 481. 
 duty of, to inform themselves of state of trust-property, 4<>!i. 
 
 where trust incapable of execution, 492. 
 following trust-property converted by, 486. 
 for purchase may not buy, 482. 
 gaining advantage by fiduciary character, 493. 
 general powers of, 477. 
 impartial, to be. 470. 
 indemnity of, 475. 
 
 from gainer by breach of trust, 47<>. 
 injunction to restrain breach of trust by, 485. 
 interest when payable by, 473. 
 investment by. 471. 
 joining in receipt for conformity, 474. 
 liability of, for breach of trust. 472. 
 
 where beneficial interest forfeited to Govt. . 175. 
 loan by, to themsalves. 482. 
 lots, may sell in, 478. 
 
 mixing trust-property with their own. 487. 
 not liable for predecessor's default, 474. 
 powers of, as to minor's property, 479. 
 
 sale, 478. 
 
 profit by trust, may not, 482. 
 proper number of, 474. 
 protection of title to trust property, 469. 
 purchase by, of beneficiaries' interest, 482. 
 
 recouping for overpayment, 470. 
 
 receipts of. 479. 
 
 reimbursement of, 476. 
 
 remuneration of, 482. 
 
 renunciation of trust after acceptance by. not allowed. 488. 
 
 're-sale by, 478. 
 
 rules for selection of new, 490. 
 
 set-off in respect of breach of trust not allowed to, 474. 
 
 several liability of, 475. 
 
 special conditions, may fix, 478. 
 
 suspension of powers of by decree, 480. 
 
 title-deeds, custody of. by, 476. 
 vacation of office by, 488. 
 
 varying investments, powers of as to, 478. 
 
 waste, prevention of. by, 471. 
 when liable for co-trustee's default, 474. 
 who are proper persons to be new, 484. 
 who may be, 467. 
 
 wrongful purchase by , remedy for, 485. 
 
 undue influence, trust of propertyacqured by, 494. 
 
INDEX. nil) 
 
 TRUSTS ACT, 1882 (continued). > 
 
 unexhausted interest, duty of trustees as to, 1 '.'_'. 
 
 unlawful trusts. )>.">. 
 
 vacating office of trustee, 488. 
 
 varying' investments. 478. 
 
 vesting trust-property in new trustees, 490. 
 
 waste, trustees to prevent, 171. 
 
 wasting property, trustees to convert. 470. 
 
 tctiqf, law of, not affected by Act, 4C4. 
 
 writing, appointment of new trustees to be in, 489. 
 
 consent of beneficiary to change of investment to be in. 179. 
 to investment to be in, 472. 
 
 when necessary to declaration of trust, 4G6. 
 wrongful purchase by trustee, remedy for, 485. 
 
 TRUST-PROPERTY, 
 
 following into hands of volunteer, 291. 
 
 liability of trustee for employing in trade, 814. 
 
 mixing it with his own money, 277, 318. 
 non-investment, 314. 
 
 payment of into Court, 336. 
 
 to c. q. t., without notice of transfer, 208. 
 
 wrong person, 177. 
 under power-of-attorney, 207. 
 See PAYMENT. 
 
 purchase of from c. q. t. by trustee, 2dl. 
 
 trustee cannot set up adverse title to, 155. 
 may not take lease of, 260. 
 
 wrongfully converted, acquisition of by trustee, 313. 
 
 See TRUSTS, ACT, 1882. 
 
 TRUST AND POWER, mixture of, 18. 
 
 TRUSTS, 
 
 among Hindus, 8 14. 
 
 kinds of, 18. 
 
 origin of, in England, 1. 
 
 TRUSTEE AND TRUSTEES, 
 acceptance of trust by, 120. 
 
 See ACCEPTANCE OF TRUST. 
 acquiring absolute interest in trust-property when considered 
 
 constructive trustee, 108. 
 agent of, may not purchase trust-estate, 260. 
 
 when liable to account. 109. 
 also executor, .acceptance by taking probate, 121. 
 appointment of, see APPOINTMENT OF NEW TRUSTEES ; NEW TRUS- 
 TEES. 
 
 bound to be impartial, 152. 
 cannot benefit by trust, 107. 
 
 renounce after acceptance, 234. 
 c, q. t. entitled to proper number of, 284. 
 compellable to execute trust, 271. 
 compounding debts, liability of, 252. 
 constructive, see CONSTRUCTIVE TRUSTEE. 
 covenants entered into by, 224. 
 definition of, 18. 
 
 in Trusts Act, 465. 
 
 disabilities of, nee DELEGATION OF TRUST ; DISCRETIONARY TRUST ; 
 PROFIT ; PURCHASE ; REMUNERATION OF TRUSTEE ; SALE. 
 
550 INDEX. 
 
 TRUSTEE AND TRUSTEES (continued). 
 
 discharge of, see DISCHARGE. 
 
 disclaimer by, 132. 
 
 duties of, sue DUTIES OP TRUSTEE 
 
 employing trust-funds in trade, liability of, 251, 314. 
 
 for sale cannot purchase, 256. 
 
 powers of, under Trustee Act, 444. 
 gift to, 133, 252. 
 
 legal adviser when a constructive, 109. 
 
 liability of, for breach of trust, see BREACH OF TRUST ; INJUNC- 
 TION ; INVESTMENT. 
 may not profit from office, 250. 
 
 See PROFIT. 
 
 notice to, of assignment of equitable interest. 56. 
 number of, 328. 
 
 of charity, see CHARITABLE TRUSTS, 362. 
 idol, removal of, 379. 
 
 religious establishments, see RELIGIOUS TRUSTS. 401. 
 n-uqf property, removal of, 387. 
 paid to retire. 330. 
 
 petition for advice of Court, see PETITION. 
 
 purchase of trust-property by, see BREACH OF TRUST; PURCHASE. 
 receipts of, see RECEIPT. 
 reconveyance by, 289. 
 reimbursement ot, see REIMBURSEMENT. 
 release to, 177, 192, 222. 
 
 remuneration of, see REMUNERATION OF TRUSTEES. 
 retiring from trust for consideration, 255. 
 renewing lease, remedy, 109. 
 suit for appointment of, 284. 
 
 to compel performance of act of duty by, 287. 
 restrain breach of trust by, 206, 287. 
 
 See SUITS. 
 
 trust not allowed to fail for want of, 282. 
 vacating office by, 326. 
 when allowed to bid for trust-estate, 264. 
 bound by recitals in deed, 122. 
 necessary party to suit, 341. 
 who may be, 124, 467. 
 
 See TRUSTS ACT, 1882. 
 
 TRUSTEE ACT, 1866, p. 415. 
 
 absence of trustee. Court may make order in, 441. 
 cause, order may be made in, 439. 
 charities, power of High Court under Act as to, 440. 
 companies to obey order vesting stock, 430. 
 conclusive evidence, when order of Court is, 439. 
 'contingent right, ' definition of, 416. 
 
 discharge of, where decree for sale of immoveable 
 
 property for payment of debts, 431. 
 of lunatic, conveyance of, by High Court, 419. 
 
 trustee, 422. 
 minor trustee and mortgagee, releasing property 
 
 from. 420. 
 
 trustee jointly entitled with others out of juris- 
 diction, order as to, 422. 
 unborn trustee, vesting order as to. 423. 
 continuing liability of old trustee, 437. 
 ' convey ' and ' conveyance,' definitions of, 416. 
 convey, power of High Court to appoint person to, 425. 
 
INDEX. 
 
 TRUSTEE ACT, 1866 (continued). 
 
 conveyance of contingent right of lunatic, 419. 
 
 estate of trustee out of jurisdiction, 421. 
 immoveable property held jointly with person out of 
 
 jurisdiction, 421. 
 
 where trustee out of jurisdiction, 422. 
 Court, appointment of new trustee by, 434. 
 costs of petitions. 441. 
 decree, orders to have effect of, 443. 
 ' devisee,' definition of, 417. 
 
 dividends in name of minor trustee, order for transfer of, 431. 
 enquiry as to person of unsound mind. 442. 
 extent of Act, 418. 
 ' heir,' definition of, 417. 
 
 'High Court,' ' held.' and holding,' definitions of, 416. 
 ' immoveable property.' definition of, 415. 
 indemnity to persons obeying orders, 443. 
 jurisdiction of High Court, 418. 
 ' lunatic,' definition of, 417. 
 
 lunatic trustee and mortgagee, conveyance of estate of, 418. 
 minor, payment of money of, into Court, 440. 
 
 trustee and mortgagee, conveyance of estate of, 420. 
 ' mortgage,' definition of, 417. 
 mortgagee, conveyance of estate of lunatic. 418. 
 new trustees, appointment of, by Court, 434. 
 
 vesting immoveable property in, 436. 
 
 right to call for transfer of stock in, 437. 
 order may be made in absence of trustee, 441. 
 
 cause, 439. 
 
 payment into Court of money of minor, 440. 
 ' person ' and person of unsound mind,' definitions of, 417. 
 person of unsound mind, payment of money of, into Court, 440. 
 petition, applications to Court to be by, 438. 
 what may be done on, 439. 
 who may present, 437. 
 
 right to call for transfer of stock vesting in new trustees. 437. 
 stamp-duty payable on orders, 441. 
 ' stock,' definition of, 415. 
 stock, directions as to transfer of, 433. 
 vesting order as to, 425. 
 
 companies to obey, 430. 
 
 effect of, 428. 
 
 in name of deceased trustee, 427. 
 
 minor trustee. 431. 
 when trustee beyond jurisdiction, 426. 
 
 trustee refuses to receive and pay dividends, 
 
 427. 
 
 suit may be directed, 442. 
 ' transfer,' definition of, 416. 
 
 of dividends in name of minor trustee, order as to, 431. 
 lunatic trustee and mortgagee, 419. 
 
 power of High Court to give directions as to, 433. 
 stock or Govt. securities of deceased person, 420. 
 ' trust ' and ' trustee, ' definitions of, 416. 
 trustee, conveyance of estate of lunatic, 418. 
 trustees, Court to declare who are, of immoveable property where 
 
 suit. 4:;2. 
 unsound mind, conveyance of estate of person of, 418. 
 
 enquiry as to person of, 442. 
 vesting immoveable property in new trustee, 436. 
 
-">.") 2 INDEX. 
 
 TRUSTEE ACT, 18G6 (continued). 
 
 vesting order as to contingent right of unborn trustee. 423. 
 stock, 425. 
 
 effect of, 428. 
 
 standing in name of deceased person. 428. 
 
 minor trustee. 431. 
 
 when trustee beyond jurisdiction. 4i ) i>. 
 when trustee refuses to receive and pay 
 
 dividends, or to transfer, 427. 
 thing in action, 429. 
 
 executor neglecting to transfer stock after, 430. 
 in lieu of conveyance, 431. [424. 
 
 on refusal or neglect of trustee to convey or release, 
 right to transfer of person neglecting, 429. 
 when mortgagee dead, 424. 
 
 trustee dies without heir, 423.' 
 uncertain whether last trustee living or dead. 423. 
 which of several trustees was survivor, 
 
 422. 
 
 vesting right to call for transfer of stock in new trustee, 437. 
 TRUSTEES' AND MORTGAGEES' POWERS ACT. 443. 
 
 administrator, liability of, as to rents and covenants, etc., 458. 
 
 petition for advice of High Court by, 459. 
 advice of High Court, petition for. 459. 
 agent of mortgagor receiver deemed to be, 448. 
 application of money received by receiver, 449. 
 purchase-money. 440. 
 purchaser when not bound to see to, 453. 
 appointment of new trustees, 454, 456. 
 
 receiver, 447. 
 
 apportionment of conditions of re-entry. 450. 
 assets, distribution of, 459. 
 assignment to self and others, 453. 
 auction, trustees may sell by, 444. 
 
 charge, owner of. may call for title-deeds and conveyance. 447. 
 compound, powers of executor to, 457. 
 conditions of re-entry, apportionment of, 450. 
 
 sale. 444. 
 
 contract, trustees may sell by. 444. 
 conveyance by trustees exercising power of sale, 445. 
 owner of charge may call for, 447. 
 to purchaser, 447. 
 descent how traced, 453. 
 discharge of person paying purchase-money, 446. 
 
 trustees' receipts to be, 456. 
 
 distribution of assets of testator or intestate, 459. 
 execution of powers, mode of. 451. 
 
 executor, liability of. as to rents and covenants, etc., 458. 
 may compound. 4."i7. 
 
 petition for advice of High Court by. 459. 
 power of, to raise money, 452. 
 ' High Court.' definition of, 444. 
 ' immoveable property,' definition of. 444. 
 indemnity-clauses when presumed. 4.VI. 
 insurance by receiver, 448. 
 investment of moneys arising from sale, 445. 
 
 trust-funds, 453. 
 
 legatee in trust, power to raise money by sale, 451. 
 license to alien, effect of restriction on, 449. 
 lots, trustee may sell in, 444. 
 
INDEX. 553 
 
 TRUSTEES' AND MORTGAGEES' POWERS ACT (continued). 
 maintenance, power of trustees as to, 454. 
 minors, maintenance of, 454. 
 mode of execution of powers, 451. 
 
 ' mortgage,' ' mortgagor,' ' mortgagee, 1 definitions of, 444. 
 mortgages, powers incident to, 445. 
 new trustees, appointment of, 454. 
 notice of sale, 446. 
 
 partial licenses, restricted effect of, 450. 
 payment under power of attorney, 457. 
 petition for advice of High Court, 459. 
 power of attorney, payment under. 457. 
 powers, execution of, by tenant-for-life, 460. 
 
 mode of execution of, 451. 
 
 of receiver, 448. 
 
 purchaser, not bound to enquire as to. 452. 
 purchaser, not bound to see to application of purchase-money, 453. 
 
 nor to enquire as to powers, 452. 
 
 receipt of trustee for purchase-money a discharge, 446. 
 receiver, application of purchase-money received by, 449. 
 
 appointment of, 447. 
 
 insurance by, 448. 
 
 is agent for mortgagor, 448. 
 
 powers of, 448. 
 
 removal of, 448. 
 
 remuneration of, 448. 
 
 reimbursement, clause as to. when presumed, 456. 
 release of part of land charged, not extinguishment, 460. 
 removal of receiver, 448. 
 remuneration of receiver, 448. 
 restriction on license to alien, effect of, 449. 
 securities for investment, 453. 
 tenant-for-life, execution of powers by, 460. 
 title-deeds, owner of charge may call for, 447. 
 
 TURN OF WORSHIP. 
 
 right to, 377. 
 sale of, 376. 
 suit for, 377. 
 
 UNCERTAINTY, gift for religious or charitable purposes void for, 
 356. 
 
 UNDUE INFLUENCE, 
 
 setting aside settlement on ground of, 121, 
 
 voluntary settlement obtained by, 59. 
 Kiiqf obtained by, 384. 
 See TRUSTS ACT, 1882. 
 
 UNFITNESS, what is, 329. 
 
 UNLAWFUL TRUSTS, 19, 32, 465. 
 See TBUSTS ACT. 1882. 
 
 USES, 4. 
 
 VACATING OFFICE of trustee, 326. 
 See TRUSTS ACT, 1882. 
 
 VAGUE TRUSTS, 85 
 
 70 
 
554 INDEX. 
 
 VALUATION, 
 
 duty of trustee for purchase to obtain, 117. 
 for sale, 1C9. 
 
 VALUE, following trust-property into hands of purchaser for, 292. 
 
 VARYING INVESTMENTS, power of trustee as to, 162, 225. 
 See TRUSTS ACT, 1882. 
 
 VENDEE, when trustee for vendor, 83- 
 
 VESTING 
 
 trust-estate in new trustee, 335, 436, 462. 
 
 trustees of charity. 863, 366. 
 under Act XXI of I860. p. 392. 
 See TBUSTEE ACT, 1866 ; TKUSTS ACT, 1882. 
 
 VISITORS OF CHARITY, 361. 
 
 VOLUNTARY GIFTS, 
 
 to persons in fiduciary capacity, 111. 
 setting aside. 111. 
 
 VOLUNTARY SETTLEMENT, 53. 
 
 for purpose of defrauding creditor, 59. 
 
 how far void as against creditors, 64. 
 
 on whom binding, 72. 
 
 setting aside, 59. 
 
 when settlor may defeat, 67. 
 
 VOLUNTARY TRUST, what is a valid, 57. 
 VOLUNTEER, following trust-property into hands of, 291. 
 VOUCHERS, right of c. q. t. to copies of, 158. 
 WARD, setting aside gift to guardian by, 113. 
 
 WASTE, 
 
 by Hindu widow, 145. 
 
 trustee ground for appointment of receiver, 340. 
 duty of trustee to prevent, 142. 
 See TRUSTS ACT, 1882. 
 
 WIFE, no resulting trust on purchase in name of, 90. 
 
 WILFUL DEFAULT, 
 
 must be pleaded, 187. 
 
 trustee when chargeable with, 182. 
 
 WILL, 
 
 executory trust in. 21. 
 
 implied trust in, 77. 
 
 trust in, for payment of debts, 76. 
 
 resulting trust in, 83. 
 
 WINDING-UP TRUST, 219. 
 time for, 121. 
 
 WORSHIP, right to erect places of, 380. 
 
 WRITING, when necessary to creation of trust, 51. 
 See TRUSTS ACT, 1882. 
 
 WRITTEN AUTHORITY, payment of trust-fund on, 179. 
 WRITTEN STATEMENT, disclaimer by, 133. 
 
INDEX. 555 
 
 WUQF, 
 
 alienation of property. 385. 
 
 subject to trust, 386. 
 ' altamgha,' use of word. 383. 
 appointment of inutawalli. 388. 
 appropriation of property for purposes of, 381. 
 
 evidence of. 382. 
 breach of trust, 387. 
 creation of, 381. 
 
 endowment subject to mortgage, 381. 
 evidence of appropriation, 382. 
 female may be mutawalli. 388. 
 ' inam.' use of the word. 383. 
 injunction to restrain obstruction to worship, 390. 
 
 lease of property, 386. 
 
 mutawalli, appointment of, 388. 
 mortgage by local custom, 386. 
 
 endowment subject to, 384. 
 nominal endowment, 386. 
 objects of, 381. 
 office of trustee of, 388. 
 purchase from trustee of, 387. 
 removal of trustee. 337. 
 requisites to valid creation of, 382. 
 revocation of. 385. 
 succession to office, 388. 
 Buits respecting, 389. 
 transfer of trust, 386. 
 
 undue influence, grant obtained by, void, 384 
 See TRUSTS ACT, 1882. 
 
 YEAR for realizing assets, 173, 221. 
 
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