of debts, which was false, the produce being applied to the pri- will A trustee, who appoints an agent under an express power, be liable for his acts only in the event of his having selected for agent a person who was insolvent, or for other reasons evidently unfit for the purpose; but where there is no such power, the trustee is liable at all events. Hence trustees are not liable for losses accruing from the default of bankers and agents employed in the usual course of business, if they have acted with ordinary care and precaution. Swanst. 75. 11. Of the Liability of the Real and Personal Estate of Trustees for Breaches of Trust.]-Trustees are liable jointly and severally, and the cestui que trust may proceed against all or any of them for a breach of trust5: but a trustee may, before accept- 5 Walker v. ing the trust, stipulate that he shall be liable only to a certain Symonds, 3 proportion of the trust property. So, on the other hand, trus-Birls v. Bett y tees may make themselves liable beyond the amount of the trust 6 Madd. 90. property, as by entering into engagements with parties, who have not full knowledge of the amount of the funds, and giving them tacitly to understand that these funds are sufficient to meet the engagements 7. A trustee, who is guilty of a breach of trust, becomes thereby only a simple contract debtor to the trust estates; and, therefore, unless he have done some act which imposes on him a special obligation, his personal estate only is liable; but where a trustee had given an express acknowledgment, under hand and seal, that he had received the whole of the trust property, he was held to have made himself a debtor by specialty 9; and it seems that any words amounting to a covenant on the part of the trustee would have the same operation 10. No length of time is a bar to a direct trust, as between the trustee and cestui que trust. Courts of equity, however, never encourage stale demands, and if parties choose to sleep upon their rights for a long period, the courts "Higgins v. Livingstone, 4 Dow, 341. Vernon v. Vawdrey, 2 Atk. 119. Gifford v. Manley, Ca. temp. Talb. 109 10 Lord Mont ford v. Lord Cadogan, 19 Ves. 638. 1 Younge v. Combe, 4 Ves. 101. will require them to produce much clearer proof of their claims than would have been necessary, if they had been brought forward at an earlier period: cestuis que trust, who have had full knowledge of the misconduct of trustees, and have acquiesced in it, will be held to have authorized this conduct, and be precluded from any remedy, to which they would have been otherwise entitled. It is the duty of the trustee not to suffer the trust-money to remain long unproductive; and if he do so, he will be chargeable with interest for the benefit of the trust estate. The court of Chancery in general directs interest to be paid at the rate of four per cent.; and it will be no excuse that the trustee had kept more than the amount of such trust-fund to his own credit at his bankers, during the whole period in question1. Trustees and executors who, for upwards of a year after the testator's death, allowed a considerable portion of the assets to lie unproductive in the hands of a banker who failed, were, under the circumstances, which shewed a want of due diligence, charged with the loss 2. And where, through the negligence of one trustee, his co-trustee obtained possession of a large part of the trust-fund, whereby a considerable loss was incurred, he was decreed to replace the principal with interest at the rate of 4 per cent3. It is the Stevens, 1 Mer. duty of trustees to be always ready with their accounts; and, • Moyle v. Moyle, 1 Russ. & My. 710. 3 Underwood v. 712. 4 Pearse v. Green, 1 J. & W. 140. therefore, in a case where the cestuis que trust were under the necessity of filing a bill to compel them to account, they were held to be liable for interest on the balances in their hands from the time when the bill was filed 4. And where a trustee has employed the trust-money in his own trade, or otherwise used it for his own benefit, the cestuis que trust may take the option between payment of interest at the rate of 5 per cent., and restitution of the profits made by means of its employment 5. Where trustees Hulme, 1 J. & had falsely alleged that trust-money was invested in the public funds, they have been charged with interest at 5 per cent.6 Even where the trustee is not authorized to place the money out at interest, yet if he make interest by the use of it, he must account for the interest so made. Heathcote v. W. 133. ❝ Bate v. Scales, 12 Ves. 402. 12. Rests as against the Trustees.]-Where trusts for accumulation have been directed, and the trustee has neglected to carry them into effect, the court has gone the length of directing half-yearly rests, and charging him with compound interest at the rate of 5 per cent., and this, although it produced more to the estate than 1 Raphael v. Boehm, 11 Ves. 92; Crackelt v. a due execution of the trust would have brought, and although no loss to the property had accrued through any misconduct of the trustee1. In the absence, however, of an express direction to accumulate, there being no fraud, the court will not direct rests2. The trustee, under a power of sale in the will, sold part of the Bethune, 1 J. & estates, and invested the proceeds in the purchase of another estate, which was conveyed to him, to the uses, upon and for the trusts, &c., of the will:-Held, that the purchased estate must be taken for all intents and purposes as if it had been devised by the will, and, consequently, that the trustee had the same power to mortgage it that he had to mortgage the devised estates3. Great difficulties frequently arise in ascertaining the amount of the claims of parties interested in the profits of trust-funds which have been employed in trade; but their right to such relief is so clearly established, that the jurisdiction must be exercised, though, under such circumstances, the Lord Chancellor, on several recent occasions, has strongly recommended a settlement by private arrangement and compromise4. W. 588. 518. 3 Ball v. Harris, 8 Sim. 485. 4 Wedderburn 5 Wilkinson v. Wilkinson, 2 Where a provident owner might reasonably employ a collector to receive his rents, a trustee may do so, and will be justified in allowing him a proper compensation 5. Where the payment of rents, in consequence of disputes among Sim. & Stu.237. the trustees, had been permitted to fall in arrear, on a bill filed by the plaintiff, who was entitled to the rents and profits for her life, against the trustees, the court ordered a receiver to be appointed, and that the trustees should pay the costs of the suit6. The bankruptcy of a trustee is a sufficient ground for his removal from that office, although he has obtained his certificate, and the trust property is in the hands of a receiver7. In a proceeding for the appointment of new trustees, the court declined making an order that a feme sole might be at liberty to propose herself as trustee before the Master, saying, "that it was not the usual practice, and it might lead to inconvenience in the case of her marriage, when her husband would have the power of interfering with the trust 8." Where a suit has been instituted for the purpose of appointing new trustees, and the surviving trustees take upon themselves, without the sanction of the court, to appoint new trustees; although this act is neither a contempt of court nor an act altogether void, yet it imposes upon the trustees the necessity of proving, 6 Wilson v. Wilson, 2 Kee. 249. 7 Bainbrigge v. Blair, 1 Beav. 495. • Brook v. Brook, 1 Beav. 531. by the strictest evidence, and at their own expense, that what they have done is perfectly right and proper. If, on investigation, the case should not appear perfectly clear, the appointment will be set aside, and the trustees ordered personally to pay the extra costs occasioned by their act1. A lady being entitled to 20007., charged on her father's estates, and payable after the decease of her surviving parent, it was agreed, by her marriage articles, that, in the settlement to be made in pursuance thereof, there should be contained a power enabling her father in his lifetime, or his executors, within six months after the 20007. should become payable, to invest that sum in the usual securities in the names of trustees to be for that purpose appointed, and for the trustees or the survivor of them from time to time, with the consent of the husband and wife, or the survivor, or of their own proper authority, as the case should happen, to change the securities, and to pay the interest to the husband for life, remainder to the wife for life for her separate use, and to pay the principal to their children, and, in default of children, to the wife's next of kin or personal representatives. The husband died, leaving his wife and four infant children surviving. No trustees of the 20007. having been appointed, the wife, after her husband's death, appointed two persons to be such trustees:-it was held, that the appointment ought to have been made by the husband and wife jointly, and that the appointment made by the wife was invalid 2. 11. 3 55 Geo. 3, c 184, s. 38. 4 Id. s. 51. 5 Per Lord Tenterden, Moses v. Crafter, Feb. 4, 1831. SECT. 18.-PROBATE AND LEGACY DUTY, 1. Probate Duty, 296. 2. Administration Duty, 298. 3. Exemptions from Probate and Admi nistration Duty, 298. 4. Legacy Duty, 298. 5. Exemptions from Legacy Duty, 300, 1. Probate Duty.]-As far as a will relates to real property, it requires no stamp; but in respect to personal property, the probate, or letters of administration, is subject to an ad valorem duty. The value is taken on the oath of the party applying for probate or administration. Property held merely in trust is not to be included3: but no allowance is, in the first instance, to be made for the debts of the deceased, though, after payment of them, a corresponding part of the duty may, on application to the Commissioners of Stamps, within three years, be refunded1; but all debts owing to the testator, except such as are absolutely desperate 5, are to be included. Leaseholds, whether absolute or determinable on lives, must be included. If the duty paid in the first instance be insufficient, the probate may be restamped, on payment of the whole duty, together with the same penalty as in the case of a deed,—or on payment of the difference, if the commissioners be satisfied there was no fraud intended, and application be made within six months after its being discovered; and, in either case, the instrument is then to be considered as originally valid1. Where the estate and Rogers v. effects in respect of which the probate or letters of administration Jones, 7 Taunt. with a will annexed, shall be granted, exclusive of what the deceased was possessed of in trust, shall be above the value of 201. and under 1007., a duty of 10s. is payable, with a progressively increasing duty*, until the effects amount to 1,000,0007.; the legislature probably thinking that the highest amount of personal property likely to be realised by one person, although of late years it has been frequently exceeded, and in two well-known instances more than tripled. Probate duty is not payable in respect of personal assets, which, being locally situate in a foreign country at the time of the testator's death, were not brought hither till after that event by his executors, though they had obtained an English probate in respect of his personalty situate in England, and proceeded by virtue of that probate to collect and administer in this country the whole of the assets2. Where a person having, under a deed, a general power of appointment over a fund, exercises it by will, he makes it part of his general personal estate, and probate duty must be paid in respect of this fund3; but when by will a power is given to A., to dispose by will of a specified part of the testator's estate, on which probate duty was paid, and A. afterwards executes If of the value of £100 and under £200 147. Att.-Gen. v. Hope, 4 Tyr. 878; Pearse v. Pearse, 9 Sim. 430. 3 Palmer v. Whitmore, 5 Gen. v. Staff, 2 £2 |