by one or by several persons, and will ordinarily be equally divided between them, ii.
451.
Successive trustees or administrators each entitled to commissions, ii. 439.
But com missions of a trustee or executor who withdraws voluntarily, may be limited
to his actual disbursi ments, ii. 439, 440.
Commissions are said to I" a matter of grace rather than of right in Pennsylvania,
ii. 442, 443.
But the hardship of an executor's exacting his commissions from a widow or an in-
solvent, will be no reason for refusing them, ii. 452, 453.
Distinction in Massachusetts between executor and trustee as it regards compensa-
tion ; and the commissions of an executor said to be justly chargeable on the
whole amount of principal, while those of a trustee, should generally be limited
to actual receipts and disbursements, ii. 451, 455, 456.
And the same view has been taken in Pennsylvania, ii. 451.
Five per cent, given under ordinary circumstances in Pennsylvania, ii. 448.
Of which two awl a half per cent., said to be compensation for the risk incurred
by the trustee, and the residue for his services, ii. 449.
Increased to seven or diminished to three, under peculiar circumstances, ii. 448, 449.
And ten per cent, sometimes given in Maryland and Virginia, ii. 459, 461.
TRUSTEES AND EXECUTORS, LIABILITIES OF,
Liability of trustees and executors to their cestui que trust, iii. 440.
Whether trust were created for valuable consideration or by voluntary gift from
themselves, ib.
Liable only for actual or constructive negligence and wilful misconduct, iii. 468.
Executor or trustee not bound to take charge of or administer every portion of the
trust, ib.
May entrust the whole under ordinary circumstances to the management of his
associates, iii. 468, 469.
And will not be answerable for their default or misfeasance in matters which have
passed solely through their hands, without his intervention, ib.
Unless he has notice that they are mismanaging the trust, or are unfit to manage
it, iii. 470.
As where he permits the assets of the estate to be received or retained by an insol-
vent co-trustee or executor, ib.
744 INDEX.
TRUSTEES AND EXECUTORS, LIABILITIES OF, continued.
But an executor or trustee who n a ivt s or entt rs upon the transact! •/ part
of the trust, is bound to see that it w brought to a safe termination, iii. 468, 4G9.
Liability of persons assuming to act as, the same as if they were actually trustees,
iii. 440.
As to getting in outstanding property, ib. ; see ni. 171.
They must exert themselves to get in, ib.
Where debt payable by instalments, ib.
Direction to convert speedily is a duty implied in the office of executor, ib.
Executor cannot carry on trade of testator without express authority, iii. 441 ; see iii.
471.
Except for the purpose of winding up the concern, ib.
Not liable lor loss occasioned by the exercise of discretion in not converting assets,
iii. 441, 412, 443.
Where they are liable for a loss, no fixed period from which it is to be calculated,
iii. 443.
It depends on the nature of the property and the evidence respecting it. ib.
Unless wanted for payment of debts, executor not obliged to call in a mortgage,
iii. -1 I I.
Even if it be a second mortgage, ib.
Executor or administrator aot liable if any attempt to get in money would have
been useless, ib.
Trustees compounding with a bankrupt, liable to make good the full amount, ib.
If it be impossible to -how that the bankrupt would have obtained his certificate, ib.
Or that the debt might nut have been recovered in full, ib.
Quasre, whether trustees should he charged in such cases without an inquiry, ib.
Liability of trustees for neglecting to realize securities when ordered by the Court,
iii. Ill, 145.
As to the liability of a trustee who is abroad, iii. I 15.
Trustee on his bankruptcy must prove debt due from himself to the trust, ib.
His liability, it'll.' do not so, continues, though he gets his certified
As to the custody of trust property, ib.
Trustees or executors must take same care of it as their own, ib.
Not liable for accidental loss, ib.
As by a robbery, ib.
Even when iii the possession of another, to whom it was properly intrusted, ib.
As when deposited properly in a bank, iii. I 15 : Bee iii. -17.">.
Or in the hands of an auctioneer, in the case of a deposit on a Bale, iii. I !«'>.
Or invested in Exchequer bills pending preparation of a mortgage, ib.
Liability incurred by having money at a banker's unnecessarily, ib.
Or in the hands of a solicitor, ib.
Or for leaving Exchequer bills, undistinguished, in the hands of a broker, ib.
Or if mixed with his own moneys, when banker becomes bankrupt, iii. 1 15, 17-">.
Trustee liable if he parts with exclusive control of trust fund by associating with
himself another person, iii. I 16, I 17.
Trust fund must nol be left under the entire control of a co-trustee, iii. 447, 448;
see iii. 468- 170.
When trust is at an end, payment may be made to executor of person absolutely
entitled, iii. 448, I I!'.
As to investment of trust funds, iii. 440, 17."., 17 I.
Must not be lent on personal security, ib. ; see iii. 17: 1 .. 17 1.
Although joint, ib.
Or with sureties, ib.
In the absence of authority, trustees should not invest in real securities, ib. : see
iii. 473, 17 I.
But in government or bank annuities, ib.
Consols is the proper fund, iii. 450.
They may be liable for fluctuation in other stock, iii. 7 15.
As to what amount, in proportion to the value of property, ought to be advanced
on a mortgage, ib.
Trustees not justified in lending to one of themselves, iii. 450, 475.
index. 745
TRUSTEES AND EXECUTORS, LIABILITIES OP, continued.
Not liable for loss, if property previous to mortgage were duly valued, iii. 450, 475.
Second mortgage not a proper security, ib.
Rent-charge under the Drainage Act does not preclude trustee from advancing
money on mortgage, iii. 451.
Unless he be forbidden expressly by the terms of the trust, ib.
The omission of a power of sale in a mortgage not a breach of trust, ib.
Power to invest on real securities does not authorize advances to railway company
on assignment of its tolls, &c, ib.
But trustees may continue an investment of assets on turnpike bonds, ib.
Court, in the case of infants, does not approve of money in the funds being sold
out to be invested on mortgage, ib.
Further advance to secure former mortgage, where justifiable, ib.
Trustees may invest on real securities in Ireland, when, ib.
Trustees retaining money instead of investing in the funds, how to be charged, iii.
462. ° '
When they have made no profit, interest how calculated, ib.
Where there is an express trust for accumulation, ib.
Trustees how charged when they have improperly dealt with trust moneys, ib.
Cannot set off gains against losses by improper investments, ib.
Trustees directed to invest on government or real securities, doing neither, how
charged, iii. 452, L53.
ible to a future loss traceable to improper investment, iii. 454.
Executor, when ordered by the Court, neglecting to invest money, ib.
Trustee not liable fur the acts or defaults of a co-trustee, iii. 454, 468, 469.
Same rule applicable as between executors, ib.
Trustee or executor liable if lie permits or enables co-trustee or co-executor to
commit a breach of trust, iii. 455, 468-470.
As by paying or assigning to him the money or securities of the trust, iii. 470.
( >r leaving a debt due from him to remain outstanding, iii. 455, 468-470.
< >r permitting him to receive assets without investing them, iii. 456, 457, 470.
A trustee or executor will be answerable for everything that lie receives, and cannot
/>â– from liability by handing itovt r to another for investment or safe leeepinq.
iii. 172, 173.
Tl hether a trustee who joins in a sale will be answerable for the proceeds, though
In does not actually receive them, iii. 468, 471.
Executor under a decree for common accounts, liable only for actual or constructive
receipts, iii. 457.
Trustee joining in receipts for mere conformity not liable for misapplication of the
money by his eo-trustee, iii. 457, -172.
But he must prove that his co-trustee received the money, iii. 458, 470.
By extrinsic < vick nee, and not merely by his mon oath in answer to the bill, in. 470.
And he will be liable if he joins in a receipt unnecessarily, iii. 458.
Or allows his co-trustee to keep and deal with trust moneys contrary to the trust, ib.
And he should inquire for what purpose trust moneys are wanted, iii. 459.
Executor joining with his co-executor in a receipt, answerable for the application
of the money, iii. 459, 472.
Unless the receipt has not the effect of putting the money in the hands of his co-
executor, ib.
As where he has received the money previously, iii. 459, 460.
Lord Kldon's account of the distinction between the liability of an executor and a
trustee, from joining in receipts, iii. 460.
Lord Redesdale's explanation of the distinction, iii. 460, 461.
Where it is necessary that an executor should join his co-executor in a receipt, the
rule as to trustees is applicable, iii. 461.
As the indorsement of a bill by two executors, ib.
Or their joining in a sale of stock, ib.
But executor liable if he neglects to inquire for what purpose sale is required, ib.
Executor paying assets over unnecessarily to co-executor, liable, iii. 462, 463, 472.
As by joining in indorsing a bill, iii. 463.
Or drawing a bill, ib.
VOL. III. — 18
746 INDEX.
TRUSTEES AND EXECUTORS, LIABILITIES OF, continued.
Or by agreeing that each shall receive a certain part of the estate, ui. 463 ; see 469.
But not°where executor necessarily pays money to co-executor, m. 403, 464.
As to pay debts in his own neighbourhood, ib.
Or to carry on a business directed by the testator, ib.
Or where executor had no legal right to retain the fund from the other, ib.
Nor if, after disclaimer and renunciation, he applies money as agent, ib.
Secus, if he has once acted, ib. ...
Distinction between legatee and creditor seeking to charge executor for joining in
a receipt, iii. 464, 4(;."j.
Effect of usual indemnity clause as to joining in receipts, ib.
A receipt or release by one of -several trustees not valid m equity without the con-
currence of the rest, iii. 472. .
And they witt consequently not be rendered answerable by concurring, unless the
money comes to their hands or they arc in default for not having received it, m.
470 472.
But as executors need 7iot join in receipts, they xc ill be made answerable by join-
ing, ib.
Butjoiningin a receipt, is prima facie evidena against trustees,and ma;/, as it
would seem, be explained or rebutted in the cast of executors, ib.
The union of trustees or executors in a joint account, or their <td„nssmn oj ajoint
liability in accounting, will operateas an estoppel, and render themjomUy re-
sponsible for the whole, iii. 471.
Husband during coverture liable for devastavit of his wife, ill. 46 I. 165.
Law as laid down by Lord KM. ..-lair in Adair v. Shaw, ib. _
Liability for devastavit committed daring coverture both at law and inequity, in. 400.
Though wife be living separate from her husband, ib.
Assets admitted may !"â– proved as a debt on husband's bankruptcy, ib.
At law, liability of husband for devastavit of wife ceases on her death, ib.
Unless judgment has been obtained against him and his wife, ib.
Or goods remain in specie, ib.
Liability under 30 Car. 2, c. 7, on taking out letters of administration to his wite,ib.
In equity, husband liable for assets which cam.' to bis bands, ib.
Estate of the husband discharged if Ins wife as executrix has assets more than
sufficient to answer demands, ib.
Wife surviving her husband, liable for devastavit, ib.
Though she was covert when administration was taken out, ib.
Responsible at law only to creditors, ib.
In equitv, to legatees also, ib. .......
Acquiescence by cestui que trust in improper investment, binding, in. 467.
If made with his full knowledge, ib.
Without concealment on the part of trustees, ib.
Cestui que trust in such case primarily liable, ib.
Not liable when he derives no profit, because be makes no complaint for a long
time, ib.
Infants cannot acquiesce, ib.
Nor married women, ib.
Except as to separate property, ib.
Or where she has an absolute power of appointment over such property, ib.
Trustees may institute suit against cestui que trust who has profited by a breach
of trust, ib.
Acquiescence of person entitled in remainder, ib.
As to the punishment of trustees for fraudulent breaches of trust, ib.
In some of the states of this country, trustees are bound to inns! in era! or .'/;"'"'";
ment securities, and not in hank or rail-road stock, or in personal security, iii.
473.
But in others they may range through the whole field of investment without respon-
sibility except for negligt nee, iii. 473, 474.
Effect of directions by testator in limiting or extending the powers and responsibili-
ties of trustees and executors, iii. 471, 474.
When a trustee or executor may refrain from calling in or changing investments
INDEX. - 747
TKUSTKES AND EXECUTORS, LIABILITIES OF, continued
t^y^tZ^^^ ""^ tU ^ ****~
fc' "'^";' ;/ "! i ^,°" / ofthe Weemmt or understanding of the parties ib
Bjrt j^ 6e muri ly parol evidence ofthe source or nat^r^ftkiZnllde^ation,
too/ the relation subsisting between (ft j„rffc. erf the time of the conveyance, ii.
^;t;'i,r rcW * wmfZe&z/ "^ *'**»* *• ^ «««.</<*« ^ ,
^itLn^tn^it thepart ofthe **"**» «• **** *
^ 'V"''/""','" / /". """" 9/om man paid for with the money of another will awe
rise to a trust m favor oj the latter, ii. 712, 713. See vol 1 ' ^
Bu ^ e ^^ mustb6c °rdernporaneomwith and. not subsequent to the pur-
^n'Zmt'ir*'''':''' ' ">"''" With thc m ° ne y °f the cesiui <L™ lmst, or principal
J /"■'•/'"■v wttt mo^ o/>,„ W h n a trust for partnership, ii. 713, 714
^a'iTu. ? C 06??ot nf^ 0/ / """ / ^ * " J V/W"te>, % .o
fitrf may of {he cas ( s gofurth r, and after allowing the fraud to be proved bv the
V^mmL admit the agreement on tti ground ofthe fraud, .1. <;:tS J **
But a resulting trust will not arise from proof of the want of consideration for a
K v ::':::: t ix™.* 1 "™ possessim ^ ^^ «* &** *«* by ^
d purpling to be made for a valuable consideration cannot be shown to be a
aitejy deed, for the purpose of raising a trust in favor ofthe grantor, ii. m,
Ul tZ ""', ) ''" i ;i "';' r ,h '\ "' ,f " re and existence ofthe consideration is shown to have
been introduced fraudulently or by mistake into the deed, ib. '
Whi thi r a deed purporting to be made absolul, /,, and for value to the grantee can
be converted into a trust for the grantor, in PenmylVania, by prof/ that suTh
was fa understanding or agreement ofthe parties at the time o/ils Lcutn,£
UNDU E INFLUUNCU. See Voluntary Donations.
iii 124 [\ C 2 °^ tracts i )r0CU) - ed h V ** exercise of undue influence, set aside by equity,
But a deed or will not set aside because the grantor or testator has been influenced
unless he has ben, influi nod unduly, iii. 125. 148, 149 "jmencea,
ZV l V' dai i° n h l! Km the P? r { ie * is such as t0 9 ive an opportunity for the ex-
ercise of undue inflm nee, and the result stick as it would have beenhad undue
Tfl"uZ ' ^ ^^ WW he Pâ„¢ umed and relief given by eqUly,^
Inadequacy of consideration or weakness of mind arising from ac/e, intoxication
or other causes, not sufficient to warrant the interference of equity, iii m
But wh^j^ess and inadequacy of consideration are f bund together; the one
wMbereferred to an undue advantage taken ofthe other, and relief accorded,
In general, each contracting party is presumed to be the best judge of his own in
/â– rests, and neither is bound in law to take care of those ofthe other, iii! W.
748 INDEX.
.III
UNDUE INFLUENCE, continued. 7 . . 7 , 7
But 'when one party is relatively or absolutely unable to prot ct himself, the other
will be bound not to injurt him, and equity may restrain onproofoj undue ad-
vantage, even in the absence of deceit or undue inflm nee, iii. 137-140, 142.
Grants or contracts made gratuitously or without an adequate consideration, to, or
with those who stand in a confidential relation, set aside on the ground of eon-
structm fraud or undue influence, iii. 138, Ul-143.
Unless the inadequacy or gratuity has its origin in a real and unto niton
to confer a benefit On the donee, either avowedly or in the guise of a contract,
iii. 141, 144. j7
And the relation between the parties is such as to permit one to profit by the gene-
rosity of the other, iii. 139, 140.
Application of these principles to wills, iii. 144-150.
A testamentary gift may be good, wh n it would hav I inU r vivos, in. 145.
And a b qv f ,or devise will not be set a it is i *f a ? or 'â–
for whom thetestator felt an extremt and unreasonable, or even an iuicii affection,
'iii. 145, 1 16. . . , , ...
Or is the result of the advice or persuasion of those by whom he is surrounded, ui.
148,1 19.
•/',. mental and physical condition of thetestator, th state of his feelings and affec-
tions, "ml the res .</< stce .</< m rally, rebvA the
exercise of undue influence, iii. 1 IT, 148.
And admissible as ex lis mental and physi-
cal condition, iii. 1 til, 147.
And even to show that he was influenced unduly, ib.
But not to contradict the will, for wh n fobeim 'â– oant, ib.
Deeds and contracts vitiated oy constru arid*
.mly so far as may b( requisiti for the purposes of justice, iii. 152, 163.
Secus, in cases of actual fraud, ib.
Equity will not inU rfi re as b< tun • n the parti* s toaj â–
even for thepurp< < (he part
of the other, iii. 153.
I Unless the complainant has bt i n m isl d by the alb g . fthe def n-
dant, ib.
VENDOR AND PURCHASER. See Nohob— Ptoohaseb Box.v Fide without
Notice — Specific Perfobhani e.
VENDOR'S LIEN. See Mabshallihq.
VOLUNTARY DONATIONS.
Obtained by undue influence set aside, iii. Ill, 125, 126.
By person having a spiritual ascendancy, ib.
As> to validity of gifts from nuns to their convents, ib.
Voluntary agreement executed without undue influence, neither enforced nor set
aside, ib. ; see vol. 1, p. 32 1.
How far onus thrown upon donee of showing that donation is valid, iii. 112.
Where voluntary donations, on the ground of public policy, prima facie presumed
fraudulent from the relation of tin parties, iii. 113.
As in the case of the relation of parent and child, iii. 113, 127-134.
Of person in loco parentis, ib.
Transaction between parent and child, when valid, iii. 114, 127, 144.
Of the relation of guardian and ward, iii. 114, 126.
< If the relation of trustee and cestui que trust, iii. 11G.
Of the relation of attorney and client, ib.
Donations from client to attorney, pending a suit. iii. 116, 141, 142.
Or whilst connection subsists between them, iii. 116, 143.
Evidence admissible to show that consideration expressed in a deed from client to
attorney, is fictitious, iii. 117.
When attorney may take a benefit by will, iii. 117, 142, 143.
INDEX. 749
VOLUNTARY DONATIONS, continued.
Professional man cannot profit bv his not having given full information to his
client, iii. 117, 142, 143.
Attorney cannot take security for future costs, ib.
Security for costs good only for costs then due, ib.
Settled account between attorney and client, iii. 118.
Acquiescence in security, ib.
Gift to attorney good where no cause pending and no undue influence, ib.
Lord Brougham's summary of the law as to voluntary gifts to persons standing in
these relations towards the donor, ib.
Applicable to all relations where undue influence may be' exercised, iii. 119, 127,
135.
Circumstances from which undue influence mav be inferred, iii. 119, 120, 126, 127,
135, 136.
As when parties stand in fiduciary relation, iii. 119, 138, 143.
Must be proved where no fiduciary relationship exists between the parties, iii. 120.
But when ignorance, imbecility, or intoxication is shovmto have existed on one side.
and advantage has been taken of it on the other, fraud or undue influence wilt
In presumed ''ml tin deed <</ contract set aside b)/ (quit)/, iii. 136-138, 139, 140.
Decision, of Lord Brougham, in Hunter v. Atkins, iii. 120, 121.
Where great advantage obtained by a parly he must show transaction to be fair, iii.
122.
Third parties cannot profit by donation fraudulently obtained, iii. 123, 151.
Case of bona fide purchaser without notice, iii. 124.
Acquiescence and confirmation, ib.
WARD OF COURT. See Infants.
WILL. See Undce Influence.
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