1. Who may be Trustees.]—It is the settled doctrine of courts of equity in modern times, that a trust shall never fail on account of the disability or non-appointment of a trustee, holding, that if the trust be properly created, it will fasten upon and attach to the lands intended to be made subject to it. The King, or a corporate body, or the heir at law for the purposes of the will, may be a trustee; so, a husband may be trustee for a wife, not only as to benefits proceeding from third persons, and intended for her separate use, but also with respect to property which was once his own, but of which he has, by a clear and distinct act, divested himself, and engaged to hold it as a trustee for his wife1. Where property is devoted to trusts which are to arise at a future time, and be executed by trustees who are not yet in esse, any intermediate act done by the holders of such property, inconsistent with the security of such property or the performance of the trusts which shall arise, will be set aside; and if the trusts are of a public nature, the court will entertain this jurisdiction upon an information by the Attorney-General, notwithstanding that the trustees when they come into esse decline to interfere2. The only exception to the rule, that the trust always attaches to the land, is the case of a conveyance by a trustee for valuable consideration to one who has no notice; for in this case the purchaser shall not be affected by the trust.

1 Walter v.

Hodge, 2

Swanst. 104.

Att.-Gen. v. Aspinall, 2 My.

& C. 613.

2. Office of Trustee is honorary.]—A trust is an honorary office, and is not to be undertaken with mercenary views. As a general rule it has been established, that the trustee shall not receive any remuneration for his care and trouble3. The trust property shall Pett, 3 P. W.

Robinson v.

249.

reimburse a trustee all the charges and expenses properly incurred
in the execution of the trust1: but by laches or neglect 2, by ob-
stinacy or caprice3, and, generally, by any serious misconduct, a
trustee may lose his own costs, or even be obliged to pay those of
other parties; as, where the trust was for the benefit of creditors,
and the real estate to be sold under the trust, was purchased by
one of the trustees, who afterwards sold it at a profit, one of the
creditors, whose debt had not been entirely satisfied, brought a
suit against him, and he was compelled to refund not only his
profits but also to pay the costs of the proceedings instituted
against him. So, where a trustee, having mistaken his power,
sold out stock without authority, he was not only ordered to re-
place it, but to pay the costs of being compelled to do so 5. So,
where trustees have suffered the funds to remain in their hands
unproductive, have treated them as their own, or employed them
in their trades, they have been charged with the costs of the pro-
ceedings instituted to make them account 6. So they are liable
for costs where the suit becomes necessary, through their negli-
gence 7 or vexatious conducts. A trustee, after notice of a charge
upon the trust estate, has no right to pay the money over to the
cestui
que trust who disputes the validity of the charge. In such
a case, if any doubt exist, it is the duty of the trustee to secure
the fund. If he take upon himself to act as if the charge were
invalid, he does so at his own peril9.

3. A Trustee cannot capriciously withdraw from his Office.]If a person undertake the performance of a trust, he is not entitled, as against the estate he has undertaken to protect, to exercise a mere caprice, and without any assignable reason say that he will no longer continue a trustee. On the other hand, if the trustee finds the estate involved in intricate and complicated questions, which were not and could not have been in contemplation at the time when the trust was undertaken, he has, in consequence of that change of circumstances, a right to come to the court to be relieved from the trust; and the court will judge whether the circumstances are such as to make it fair for him to decline acting longer upon his responsibility 10. The costs will not be allowed to a trustee, who, after having acted, declines to perform the trusts reposed in him without assigning any cause, and thereby renders a suit for the appointment of a new trustee necessary11; but where trustees apply to be discharged, in conse

quence of the responsibility to which they have become exposed by the tenant for life, in repeatedly charging the trust estate with annuities and other incumbrances, they are entitled to this relief, and the costs will be ordered to be paid out of the interest of the tenant for life 1.

1

Coventry v. Coventry, 1

4. Effect of Trustee refusing to act.]-The owner of an equi- Kee. 758. table estate conveyed it to trustees, upon trust, for sale; and, by a deed of even date, declared the trusts upon which the produce of the sale was to be applied. The party who had the mere legal estate, and no beneficial interest, refused to convey it to the equitable trustee, unless the persons interested as cestuis que trust under the deed of even date, were made parties to the conveyance. He was not justified in that refusal; but as he had acted bonâ fide under the advice of a conveyancer of character, the court made the decree against him without costs 2.

A trustee under an old settlement creating successive limitations of equitable interest, some of which have failed, is entitled, before he can be required to convey, to have the equitable title of those who call for a conveyance ascertained by inquiry, and to have the deed of conveyance settled in the Master's office3. A trustee refusing to pay a legacy without the direction of the court, in a case which admitted of no doubt, was refused his costs; but was not made to pay the costs of the suit, "because he might have acted from ignorance, and not from any improper motive4." "If it be possible to assign any reasonable ground for the refusal of the trustees to act without the direction of the court, it is for the interest of the public that the costs of the trustees should be paid to them 5." Where a trust estate having descended to a person who refused to execute a conveyance to the cestui que trust after it was approved of by his solicitor, unless he were paid a sum of money, the court made a decree against him with costs 6.

5. Remuneration to Trustees.]—It has now become a frequent practice, especially in wills, to secure a remuneration for trustees for their care and trouble in the execution of trusts; and where the gift is not specified, the court will undertake to define what they reasonably deserve7. If a trustee die before he has acted, his representatives would be entitled to the remuneration, if it should not appear that he had refused or neglected to undertake the execution of the trust 8; and where there is no gift by way of compensation, he may stipulate with the cestui que trust for an

* Angier v. Stannard, 3 M.

& K. 566.

Goodson v. Ellison, 3 Russ.

583.

Knight v. Martin, 1 R. &

M. 70.

5 Per Sir J. Leach, Knight v. Martin, I R. & M. 70.

6 Watts v.Turner, 1 R. & M. 634.

Ellison v.
Airey, 1 Ves.

114; Marshall
v. Holloway, 2
Swanst. 454.
Brydges v
& B. 134.

Wotton, 1 Ves.

1 Brocksopp v. Barnes, 5 Madd. 90.

allowance; and then it seems the court, on a special case being made, would order a grant for this purpose before the trust was accepted 1.

6. Solicitor Trustee's Right to Costs.]—Where a solicitor happens to be appointed trustee, it is not unfrequent to introduce words designed to have the effect of enabling him to charge his professional fees, in regard to any business he may have to transact in the execution of the trust. It has been decided, however, that a trustee who is a solicitor, acting as a solicitor, is not entitled to charge for his labour, but merely for his costs out of New v. Jones. pocket2; and that a clause to the effect, that "the trustee might 9 Jar. Conv.

retain all reasonable costs, charges, and expenses which he might sustain or be put unto, such costs, charges, and expenses to be reckoned, stated, and paid as between attorney and client," makes no difference, such language being "inapplicable to sums claimed as remuneration 3." This conclusion is grounded on the general rule, that a trustee shall make no benefit for himself out of the trust estate, and the bare fact of his being a solicitor cannot vary the general rule. The parties may, however, by contract, make a rule for themselves, and agree that a trustee, being a solicitor, shall have some benefit beyond what, without such contract, the law would have allowed; but in such a case the agreement must be distinct, and in its terms explain to the client the effect of the arrangement; and the more particularly when the solicitor for the client, becoming himself a trustee, has an interest, personal to himself, adverse to that of the client 4.

A testator devised and bequeathed his freehold and leasehold estates to trustees for sale; and he "declared that his trustees respectively should be entitled to have and receive out of the trust-monies all costs, charges, and expenses, fees to counsel and for advice, and for professional assistance and loss of time, paid, incurred, sustained, or occasioned, in or about the execution of the said trusts, or in anywise relating thereto." One of the trustees, who was a land-surveyor, superintended the management and sale of the estates, he was held, upon the terms of the will," to be entitled to his remuneration for his loss of time5. In a recent case, business relating to a trust-estate was transacted by two solicitors in partnership, one of whom was a trustee of the estate, it was held, in passing his accounts, that costs out of pocket could alone be allowed 6.

7. Lending Trust-Money.]-In lending trust-money, the trus

tees should not advance more than two-thirds upon property of a permanent value, as freehold land; and not upon houses and buildings, and still less upon buildings used in trade, and whose value depends upon contingencies, as the absence of competition in that trade1. Two executors were empowered to lend money upon government, real, or personal security. One of them, in 1815, lent part of the fund to the other trustee and his partner in trade mortgage. The mortgagees became bankrupt in 1831, and then the mortgaged property which consisted in part of a windmill, a watermill, and a house in town, being sold, produced considerably less than the sum advanced. The executors were held responsible 2.

upon

8. Duties of Trustees in the Management of the Property.]—The office of the trustee consists" in the due perception and application of the profits, the execution of estates, and the protection of the property." Where there are no directions for the management of the trust property, the trustee must act, in some degree, according to his own discretion, and in some degree, according to certain rules which have been established by courts of equity. With respect to the latter, for example, where no specific mode of investing trustmonies is fixed, the court has declared, as a general rule, that they shall be laid out in the purchase of 3 per cent. Consolidated Bank Annuities, except where obedience to it would interfere with the fulfilment of the trust: as, for example, if a testator were to give the residue of his personal estate to his executors, in trust, to receive the dividends, interest, and annual produce thereof, and to pay the same to his nephew during his life, in equal half-yearly portions, on Lady-day and Michaelmas-day in every year, the fund would be ordered to be laid out in the 3 per cent. Reduced Bank Annuities, the dividends upon the former stock being payable in January and July, instead of April and October, in which the latter are payable 3; and it may be noticed, that, under special circumstances, it seems the court would allow trust-monies to be invested upon real securities 4.

1 Stickney v. Sewell, 1 My.

& C. 8.

2 Ib.

3 very

Caldecott v. Caldecott, 4 Madd. 189.

4 Norbury v. Norbury, 4

Madd. 191.

Burgess v. Wheate, 1 Ed.

238.

It is clearly settled, that no fraudulent or unnecessary delay on the part of trustees shall be allowed, either to benefit themselves 5, or affect the interests of third persons 6. A direction to executors, in trust, to sell" at such time and in such manner as they shall • Gaskell v. think fit," will not authorize them arbitrarily to postpone the sale to an indefinite period. Even under such words of large discre- Ves. 507. tion, a court of equity will hold the conversion to have been made

Harman, 11