§ 198. The city of Philadelphia, after the act of 1854, consolidating the whole county under that name, had power to administer property devised to the mayor, aldermen and citizens of Philadelphia for charitable uses. Girard v. Philadelphia,* 7 Wall., 1.

§ 199. Property was thus devised in trust primarily to maintain a college and secondarily for other purposes. Held, that a bill in the nature of quia timet could not be maintained by the heirs in anticipation that the proceeds of the devise would be more than adequate for the wants of the college, and that the secondary trusts could not be executed, there being then no surplus or likelihood of any surplus. Held, also, that the heirs had no authority to contest the right of the city to administer the surplus, if any should arise, that power belonging exclusively to the state. Ibid.

$ 200. Beneficiary not in issue - Uncertainty - Perpetuity. Testator, domiciled at Philadelphia, devised certain lands in Pennsylvania to twelve trustees "in trust for the formation and support of a home for aged, infirm or invalid gentlemen and merchants, where they may enjoy the comforts of an asylum-not eleemosynary, but as far as may be by the addition of their own means, and by reference to the Prytaneum of ancient Athens, an honorable home, with the hope that it may be perpetuated and enlarged by the bequests of its grateful inmates, . . leaving to my trustees full power to conduct and carry out this institution on the best possible plan, and to provide for its permanent usefulness in or near my native city." On bill filed and claim made by the residuary devisees under the will and by the heirs at law of the testator, to have the devise declared inoperative and void, held, that the devise was good under the laws of Pennsylvania, and was valid as a charitable use. Whether, independent of the charitable character of the devise it could be sustained as a trust, quære? Cresson v. Cresson,* 6 Am. L. Reg., 42.

§201. A. executed a deed "chiefly for the purpose of founding an institution for the education of youth in St. Louis county, Mo.," conveying property to B. and his successors in trust "for the use and benefit of the Russell Institute of St. Louis, Mo." The deed directed B. to sell the property and account for and pay over the proceeds to C., president of the board of trustees of said Russell Institute, "to and for the benefit of the said institute, represented by their president as aforesaid." Held, that this as a charitable gift was valid against the donor's heirs, although the institute was never established nor incorporated until after the death of both the donor and C. Russell v. Allen, 17 Otto, 163.

202. The money paid and the lands conveyed by B. to C. stand charged in the hands of C. and his executors with the same charitable trust to which they were subject in the hands of B. Ibid.

$203. Property was devised to trustees in trust for the "building and erection and endowment of a hospital for females within the city of Savannah, on a permanent basis, into which sick and indigent females are to be admitted and cared for," a suitable and proper act of incorporation for said hospital to be obtained, to be called and known as the "Telfair Hospital for Females." This devise was objected to for uncertainty as to the objects; for uncertainty as to the time when the hospital was to be built, and when the act of incorporation was to be obtained; for the impossibility of creating such an act under the constitution and laws of Georgia, and as being in violation of the rule against perpetuities, in that it gives the property ultimately to a corporation not yet in existence. Held, that none of the objections could prevail, and that the above was a good charitable devise. Jones v. Habersham,* 3 Woods, 443; affirmed, 17 Otto, 174.

§ 204. The devise of land to trustees in trust to hold the same for a site for the erection of an asylum for foundlings to be built by any association, society or institution to be incorporatd by act of congress creates a valid charitable use, and is not void because it creates a perpetuity, nor for uncertainty in that it does not specify the foundlings to be provided for. Ould v. Washington Hospital, 5 Otto, 303.

§ 205. A grant to the church of such place is good at common law, and vests the fee in the parson and his successors. If such a grant be made by the crown, it cannot be resumed by the crown at its pleasure. Land at common law may be granted to pious uses before there is a grantee in existence competent to take it, and in the meantime the fee will be in abeySuch a grant cannot be resumed at the pleasure of the crown. Town of Pawlet v. Clark, 9 Cr., 292.

ance.

§ 206. A devise to trustees in trust to convey the property devised to an eleemosynary corporation for foundlings whenever congress shall create one which the trustees approved charges the trustees with an executory trust, and a conveyance from them is made necessary to pass the title. The provision as to the conveyance to be made whenever congress shall create a corporation meeting the approval of the trustees is merely a conditional limitation of the estate vested in the trustees. Ould v. Washington Hospital, 5 Otto, 303.

§ 207. Instances - Valid uses.- A will contained the following: "I give and devise to the Union Society of Savannah all that lot or parcel of land in the city of Savannah on the north

side of B street, etc., etc., with the buildings and improvements thereon, but on the express condition that said society shall not sell or alienate said lot, but shall use and appropriate the rents and profits of the same for the support of the school and charities of said institution, without said lot being at any time liable for the debts or contracts of said society." Held, that the above was a good charitable devise notwithstanding the condition against alienation; and that the fact that the Union Society had a surplus of funds at the time the will went into effect did not invalidate the devise. Jones v. Habersham,* 3 Woods, 443; affirmed, 17 Otto, 174.

§ 208. A devise of property was made to the trustees of a church upon "the following terms and conditions and not otherwise," to wit: First, that the said trustees shall appropriate annually, out of the rents and profits of said property, the sum of $1,000 to one or more churches in the state of Georgia in such destitute and needy localities as the proper officers of the above first-mentioned church may select. Second, upon the further condition that the said trustees will keep in order and have cleaned up, every spring and autumn, my lot in the cemetery, etc. Third, upon the further condition that neither the trustees nor any other officers of the said church will have or authorize any material alteration or change made in the pulpit or galleries of the present church edifice on the corner of B and S streets, but will permit the same to remain substantially as they are, subject only to proper repairs and improvements; nor shall they sell or alien the lot on which the Sabbath school room of said church now stands. Held, that the above appropriation sufficiently describes the general nature of the charitable purpose, while leaving the selection of the particular objects to the trustees, and is a good charitable use, sufficiently defined; and that the devise of the burial place of the testatrix and the direction to keep it in good order is a good charitable use under section 3157, code of Georgia, 1873; and that the condition that the pulpit and galleries should not be altered nor the Sabbath school lot aliened did not render the bequest void. Ibid.

§ 209. A devise was made to the Widows' Society of Savannah of certain property, "the rents and profits of the same to be appropriated to the benevolent purposes of said society." Held, that as the society was incorporated for the relief of indigent widows and orphans the gift was not too general as being for benevolent purposes indefinitely. Ibid. § 210. A devise to a historical society in trust for charitable purposes is not void by reason of a proviso in the charter of such society that its annual income shall not exceed a certain sum, and the fact that such devise would increase its income beyond such sum. This, should the society accept the trust, might be cause for the forfeiture of its charter at the option of the state, but the gift would be none the less vested in the society. Ibid.

§ 211. A devise of property to a historical society and its successors, in special trust to keep and preserve the same as a public edifice for a library and academy of arts and sciences, made upon the condition that testator's name appear over the doorway in large letters, and upon the further condition that no portion of the building be occupied as a dwelling-house, is good as a charitable devise for educational purposes. Ibid.

§ 212.

void uses.— A legacy to or for the use or support of a minister of the gospel as such, or to or for the use or support of a religious sect, order or denomination, is void by the bill of rights of Maryland. Newton v. Carbery, 5 Cr. C. C., 632.

§ 213. A devise for the benefit or support of a poor-house, held void under the laws of Maryland either as an executory or as an executed devise. Barnes v. Barnes,* 3 Cr. C. C., 269.

§ 214. A provision in a will leaving funds in the hands of an executor, "to be by him applied to the support of missionaries in India, as it is my desire to aid in the instruction of the poor heathen in the way to life everlasting. The same to be applied under the direction of the general assembly's board of missions of the Presbyterian church in the United States,” is void for uncertainty. Board of Missions v. McMaster,* 4 Am. L. Reg., 526.

§ 215. A will provided that if testator became a member of any of the religious communities attached to the Roman Catholic church, and should be such at the time of her death, then the previous bequests of her will were avoided, and the fund referred to in the will was to go to W., as bishop of said church, or his successor in said diguity, for the benefit of the community of which she died a member. Testator died a member of a religious community attached to the Roman Catholic church, known as the "Sisters of St. Joseph." Held, that the terms of the bequest did not designate the bishop or his successor personally as the trustee, but that, however that might be, the court could not enforce a trust so vague, uncertain and illegal. Kain v. Gibboney, 3 Hughes, 397.

$216. Dedication to.- A lot of ground had, in the original plan of an addition to Georgetown, been marked "for the Lutheran church," and by the German Lutherans of the place had been used as a place of burial from the dedication, and who had erected a school-house on it but no church; exercising acts of protection and ownership over it at some periods, by committees appointed by the German Lutherans, the original owner acquiescing in the same.

This may be considered as a dedication to public and pious uses; and although the German Lutherans were not incorporated, nor were there any persons who as trustees could hold the property, the appropriation was also valid under the bill of rights of Maryland. The bill of rights, to this extent at least, recognizes the doctrines of the statute of Elizabeth for charitable uses, under which it is well known that such uses would be upheld, although there was no specific grantee or trustee. This might at all times have been enforced as a charitable and pious use through the intervention of the government, as parens patriæ, by its attorneygeneral or other law officer. Beatty v. Kurtz, 2 Pet., 566.

VI. ACTIONS, AT LAW AND IN EQUITY.

$217. Legal jurisdiction.

The interposition of equity is not necessary where a trust fund is perverted. The cestui que trust can follow it at law as far as it can be traced. United States v. State National Bank of Boston,* 24 Int. Rev. Rec., 52; 6 Otto, 30.

§ 218. A trustee is, in general, suable only in equity; but, if he chooses to bind himself by a personal covenant, he is liable at law for a breach thereof, although he describes himself as covenanting as trustee. Duvall v. Craig, 2 Wheat., 45.

$219.- the admiralty has no direct jurisdiction over trusts, although they may relate to maritime affairs. If the libelant states a trust as the foundation of his suit he states himself out of court. Davis v. Child, Dav., 71.

§ 220. in probate. The fact that executors are required by law to file their annual accounts in the court of probate does not empower such tribunal to settle these accounts in any judicial sense, or determine controversies between the cestui que trust and the trustee pertaining to such accounts. Parsons v. Lyman, 5 Blatch., 170.

§ 221. Equitable jurisdiction. There medy of the cestui que trust against the trustee for mere negligence must be in equity, and not at law. Hukill v. Page,* 6 Biss., 183.

§ 222. Courts of equity extend their control, not only over the acts of trustees, but over the acts of those who have any agency in enabling the trustees to violate their trust. Wallis v. Thornton, 2 Marsh., 422.

§ 223. A court of equity has jurisdiction, in a suit brought by the trustee against the cestui que trust, to direct an issue devisavit vel non, and to decree possession of the land to the trustee to enable him to execute the trust. Harrison v. Rowan, 4 Wash., 202.

§ 224. Equity has cognizance only of executory trusts, not of those executed, or where a trust can be enforced at law; there must be some act to be done by the trustee. Baker v. Biddle, 1 Bald., 394.

§ 225. In order to avoid an escheat and carry out the wishes of the testator a court of equity will, if necessary, consider land as money, where a testator, who is a trustee, has directed the land to be sold, and will direct the proceeds to be given to the cestui que trust. Taylor v. Benham, 5 How., 233.

§ 226. A court of equity can, when necessary, enforce the execution of trusts, and will do so when for any reason they are likely to fail. Barings v. Willing, 4 Wash., 248.

§ 227. The rule formerly, with regard to the enforcement of marriage articles which created executory trusts, was this, namely, that chancery would interfere only in favor of one of the parties to the instrument or the issue, or one claiming through them, and not in favor of remote heirs or strangers, though included within the scope of the provisions of the articles. They were regarded as volunteers. Neves v. Scott, 9 How., 196.

§ 228. But this rule has, in modern times, been much relaxed, and may now be stated thus: that if, from the circumstances under which the marriage articles were entered into by the parties, or as collected from the face of the instrument itself, it appears to have been intended that the collateral relatives, in a given event, should take the estate, and a proper limitation to that effect is contained in them, a court of equity will enforce the trust for their benefit. Ibid. § 229. injunction. When trustees are in existence and capable of acting, a court of equity will not interfere to control them in the exercise of a discretion vested in them by the instrument under which they act. Nichols v. Eaton, 1 Otto, 716.

§ 230. The case of a trustee attempting to pervert his trust, or employ it to the prejudice of his cestui que trust by a proceeding at law in which the cestui que trust would be barred of an adequate protection, is particularly appropriate for the interference of equity to restrain the proceeding by injunction. St. Luke's Hospital v. Barclay, 3 Blatch., 259.

§ 231. A cestui que trust may maintain a bill for an injunction against his trustee to prevent his collecting, appropriating or disposing of the trust property. Ibid.

§ 232. A trustee will not be permitted to take advantage of his situation to obtain any per

sonal benefit to himself at the expense of his cestui que trust, but will be restrained by injunction from so doing. Sloo v. Law,* 3 Blatch., 459.

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§ 233. enforcement of charitable use. The proper courts in this country will interfere to prevent an abuse of the trusts confided to British corporations holding lands here to charitable uses, and will aid in enforcing the due execution of the trusts; but neither those courts nor the local legislature where the lands lie can adjudge a forfeiture of the franchises of the foreign corporation or of its property. Society for the Propagation of the Gospel v. Town of New Haven, 8 Wheat., 464.

§ 234. The trustee process lies against assignees in favor of the United States where a debtor makes an assignment of his property in trust to pay custom-house bonds, or other debts due to the United States, to attach the funds to the amount of such trust, in the hands of the assignees, notwithstanding at law the assignment passed the property clothed with the trust to the assignees. United States v. Langton, 5 Mason, 280.

$235. Ejectment.- A trustee having the legal title by deed can pass it by deed, which is sufficient in ejectment. If the trustee has abused his trust he may be called upon to account for it by those who have been injured, in a court of equity, but not in a court of law, which can only notice legal titles. Bayard v. Colefax, 4 Wash., 38.

§ 236. Plaintiff in ejectment cannot impeach the interest of the cestuis que trust under a trust deed alleged to be fraudulent. In case of fraudulent trusts the only remedy of the parties injured is in chancery, which has the exclusive jurisdiction of trusts and trust estates. Smith v. McCann, 24 How., 398.

§ 237. The plaintiff in ejectment who offers a deed in evidence cannot, in order to derive to himself a legal title under it, enlarge the interests and estates conveyed thereby by showing that the deed, which purports to be a deed of trust, conveyed the beneficial interest and not merely a barren legal title. Ibid.

§ 238. Where land is conveyed in trust for a certain purpose upon a condition which is never performed the grantors cannot maintain ejectment if there has been no reconveyance. Lincoln v. French,* 15 Otto, 614.

§ 239. Assumpsit.- An agreement by trustees to account according to the provisions of the trust cannot be enforced by assumpsit. Green v. Gordon,* 1 Fed. R., 142.

240. For an account.— In a suit in equity against an executor and trustee for an account, where it appears that he acted in good faith in the execution of his trust, but misapprehended his duty in the particulars in respect to which he is charged in the final decree, he will, where a balance is found by a master's report to be due from him, be charged with interest only from the date of the report on the sum found due. But he will be charged with the costs of the suit, although he succeeded on several points in it and greatly reduced the amount claimed from him. The balance found was contested by him and the suit was necessary to recover it. Norman v. Storer, 1 Blatch., 593.

§ 241. In a suit for an accounting against a trustee, who was also the administrator of the estate from which the trust fund was derived, his accounts as such administrator cannot be re-examined. Barney v. Saunders,* 16 How., 535.

§ 242. By assignor against assignee in trust.- A debtor who makes an assignment of his estate to his assignee in trust to distribute the proceeds thereof among such of his creditors as release their claims within a specified time, and pay over to him, the assignor, such portion of the proceeds as remain undistributed at the end of that time, may file a bill in equity making the assignee and the only creditor remaining unpaid parties defendant, may compel an account from the assignee of the property taken possession of by him under the assignment, and of the disposition of the same, and of all his dealings with the trust estate. Carpenter v. Robinson, 1 Holmes, 67.

§ 243. Where an assignment is made for the benefit of creditors the assignor is entitled to the residue of the estate after his debts outstanding at the date of the assignment are paid; and by the extinguishment of the debts the assignee becomes the trustee of the assignor, and the latter becomes clothed with all the rights and powers of a cestui que trust to the same extent as the creditors were whose rights have been extinguished. Consequently the assignor is the proper party to come into a court of equity and pursue the trust estate, it appearing that it has been fraudulently or improperly parted with by the trustee. James v. Atlantic Delaine Co., 3 Cliff., 614; id., 622.

$244. The objection that one or more of the debts of the complainant, the assignor, have not been paid would be given much weight as between the assignor and assignee if the estate continued in the latter, and he was still engaged in executing the trust; but when it appears that the trust property has been fraudulently or improperly conveyed to another, not as a means of executing but as a means of extinguishing the reversionary interest of the assignor, the objection cannot be sustained in a suit against such other person by the complainant. Ibid.

§ 245. United States as cestni que trust.- Where an estate is in course of administration in a state court the United States as cestui que trust is entitled, on bill filed, to have the will construed by a circuit court of the United States, and to have the directions of the court to the executors and trustees in regard to the proper method of executing the trust; and as auxiliary to this may require an account in order to ascertain what is the residue of the estate available for the purposes of the trust. United States v. Gillespie, 9 Fed. R., 74.

§ 246. Decree against trustee - Cestui que trust, how affected by.-A judgment in a case in which the trustees are parties defendant binds the cestuis que trust also. Kerrison v. Stewart & Co., 1 Hughes, 67.

§ 247. Certain property was conveyed to A. and B. as trustees for the Sutter Land Company, an incorporated association of which A. and B. were members. Judgment having been recovered against the association in a suit in which all the members, including A. and B., were made parties, the property was sold on execution. Held, that A. and B. had undivided interests in both the legal and equitable title to the property, and that their interest at least passed by the judgment and sale. French v. Edwards, 5 Saw., 266.

$248. Where a trustee has been authorized, by necessary implication, to act in such manner as he shall deem best for the interest of both debtors and creditors, he is the chosen representative of all, and whatever binds him must bind them. Hence, if a suit is brought against the trustee, assailing the validity of the trust, and the creditors do not intervene and ask to be made parties, they are bound by the decree, although it be against the trustee and the validity of the trust. Kerrison v. Stewart, 3 O.to, 155.

§ 249. Limitations-Lapse of time - Laches.- The rule in equity as to the statute of limitations in cases of trusts is that those trusts which are mere creatures of a court of equity, and not within the cognizance of a court of law, are not within the operation of the statute. So long as there is a subsisting and continuing trust, acknowledged or acted upon by the parties, the statute does not apply. But other trusts, which are the ground of an action at law, are within in it. Under this rule the statute does not apply in the state of New Jersey to a bill by legatees or distributees. Wisner v. Barret, 4 Wash., 631.

§ 250. Although as between trustee and cestui que trust neither the statute, nor the rule of analogy, nor lapse of time, will in general affect the right of the beneficiary to redress, yet when the circumstances require it equity will refuse relief to the cestui que trust on account of delay, especially where the rights of third persons are concerned. Hence where the cestuis que trust kept silent for twelve years after the executor had settled his accounts, involving dealings in Confederate bonds, during which time all the parties tacitly acquiesced, and others gave positive assurances that they sanctioned all that had been done, and during which time he had contracted heavy indebtedness, held, that as the cestuis que trust had by their own neglect perpetuated his credit with the public, and thrown him off his guard in the contraction of debts, they must be considered as having lost their equitable right to relief. Etting v. Marx, 4 Hughes, 312; 4 Fed. R., 673.

§ 251. In 1863 A. sent B. funds in trust to invest in either cotton plantations, ranch property or town lots, in accordance with instructions given. In 1865 B. reported that the funds were invested. No further report was made by B. In 1875 A., hearing of B.'s whereabouts, filed a bill to compel a discovery and accounting, to which a demurrer was taken on the ground that the suit was barred by the statute of limitations. Held, that, in view of all the. facts, the disturbed condition of the country after the close of the war, the subsisting trust as disclosed by the bill, the complainant was entitled to discovery. Unless otherwise distinctly declared by the statute prescribing fixed periods for the commencement of suits, the cause of action is not ordinarily deemed to have accrued against, nor limitation to commence running in favor of, the trustee of a trust such as the above, until the trust is closed, or until the trustee, with the knowledge of the cestuis que trust, disavows the trust or holds adversely to the claim. Bacon v. Rives, 16 Otto, 99.

§ 252. B. died in 1793, seized of land now lying in the city of Detroit. C. and D., two of the heirs, who resided with B. at the time of his death, continued in possession of the premises, and one of them had the land confirmed to him as a French grant and obtained a patent. Upon bill filed in 1857, by other of the heirs who resided in Canada, claiming to be tenants in common with C. and D., held, that the case was one which depended upon the establishment of an implied trust to be raised by the evidence, and hence fell within that class of cases in which courts of equity follow the courts of law in applying the statute of limitations. Beaubien v. Beaubien, 23 How., 190.

§ 253. Time does not bar a direct trust, as between trustee and cestui que trust, till it is disavowed; as, where a constructive trust is made out in equity, time protects the trustee, though his conduct was originally fraudulent, and his purchase would have been repudiated for fraud. So, where a party takes possession in his own right, and was prima facie the owner, and is turned into a trustee by matter of evidence merely; and where one intending VOL. XXVIII — 41 641