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OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY



UNDEEHILL'S LAW OF TKUSTS.



BUTTERWOETH'S

STANDARD LAW BOOK SERIES.

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No. 10.— Underbill's Trusts and Trustees.



BUTTERWORTH & CO., Bell Yard, Temple Bar.



THE LAW RELATING



TRUSTS AND TRUSTEES.



ARTHUR UNDERHILL, M.A., LL.D.,

ONE OF THR CONVEY.* XCIXO COUNSEL TO THE OOUKT ;

Soiiwtime Header of the Lair of Property to tlw. Council of Leijnl EdiuvUion. ; Author of

"2'he Law of Partnership," '^ A Summary of the Lav; of Torts," etc.. Joint Author

of " Unilerhill and Strtthan's Principles of the Interpretation of Wills and

Settlemi'nt.^," and General Editor of "The Enn/dopfedia of Forms

and Precedi'nts," etc.



SEVENTH EDITION

IRevtseD anb Bnlaroet).



LONDON :

BUTTERWOPtTH & CO., Bell Yard, Temple Bar.
Xaw ipublisbere.



Sydney :

BuTTERWORTH & Co. (Australia), Ltd.,

76, Elizabeth Street.



Calcutta :

BuTTEKWORTH & Co. (India). Llil.,

8/2, Hastings Street.



1912.



\ CX\1



BRADBrRY, AONKW, & CO. LD. , I'ltlNTKUS
LONPOS ANIi TOIJBKIDOF.






-1

I



TO



THE RIGHT HONOURABLE HARDINGE STANLEY



EARL OF HALSBURY, P.C.



SOMETIME LORD HIGH CHANCELLOR OF GREAT BRITAIN



Ibis Wiovk



IS



BY HIS LORDSHIP'S PERMISSION



:M0ST RESPECTFULLY DEDICATED



PREFACE.



IN writing this treatise, it has been the author's
desire to produce a book bearing the same
relation to Mr. Lewin's elaborate work as Lord
Justice Faewell's treatise on Powers bears to that
of the late Lord St. Leonards; that is to say, a book
of a really practical, but concise, character.

The law libraries are rich in great works of reference,

the store-houses, so to speak, of the Law ; but they

are, too often, merely collections of " that codeless

myriad, that wilderness of single instances," from

which it requires many years of study and experience

to extract general principles. That this is so w^as

vigorously expressed by the late Sir James Fitzjames

Stephen in the preface to his Digest of the Law of

Evidence, where he said : " It becomes obvious, that if

a lawyer is to have anything better than a familiarity

with indexes, he must gain his knowledge in some

other way than from existing books on the subject.

No doubt such knowledge is to be gained. Experience

gives by degrees, in favourable cases, a comprehensive

acquaintance with the principles of the law with which

a practitioner is conversant. He gets to see that it is

shorter and simpler than it looks, and to understand that

the innumerable cases, which at first sight appear to

constitute the law, are reallij no more than illustrations of

a comparativehj small number of prineiples."

That great lawyer, the late Sir Geokge Jessel, also
pointed out that " the only use of authorities or decided



viii Preface.

cases is the establishment of some principle which
the judge can follow out in deciding the case before
him " (a).

In this Work the author has endeavoured to follow-
out the thought expressed by these great lawyers
by extracting and formulating the principles of the
law of Private Trusts in the form of a Code. By
way of illustration all the important modern decisions,
and such of the more ancient ones as are retained in
the Revised Reports, are cited ; so that the reader is
enabled to see, at a glance, what the author conceives
to be the law {i.e., the principle) governing any particular
point ; he is then further presented with a series of
decided cases which prove, illustrate, and explain the
application of that principle ; and further, in the foot-
notes, he is referred to other authorities if he desires
to make an exhaustive search.

For the examples, modern cases have been chosen in
preference to ancient ones, because, as has been truly
said, " the rules of Courts of Equity are not, like the
rules of the Common Law, supposed to have been
established from time immemorial. It is perfectly
well known that they have been established from time
to time — altered, improved and refined from time to
time. The doctrines are progressive, refined, and
improved ; and if icc irant to know wliat the rules of
Efjnitij ((re, ICC must look rather to the more vioclcrn than
the more ancient cases " (h).

For reasons above stated, it is hoped (and perhaps
in this Preface to the Seventh Edition it may be
l)ermissible to say, believed) that this Work has proved
of some use to practitioners.

Like most law books this one has grown larger in

(a) 13 Ch. D. 712.

(h) Per Sir Georgk Jessel, M.K., iu lie Eallett, Knatchbull v.
llnlU'U, 13 Ch. D., at p. 710.



Preface. ix

each successive edition. Up to and including the
last edition the author attempted to make it a book
fitted not only for the requirements of the practitioner
bat also for those of the student. He has, however,
nov^ come to "the parting of the v^ays," and having to
choose one path or the other, has elected to devote
it to the practitioner. If, however, there should be
any demand by students for an abridgment, the author,
(while unable to undertake such a work himself), has
consented to an abridgment being written by some
other qualified person.

Since the last edition was published an attempt has
been made to codify the law of trusts, the Bill being
admittedly founded to a large extent on this work.
The author cannot help thinking that the gentlemen
responsible for this Bill would have done better to
devote their superfluous energy to the amendment of
the law of trusts, rather than to crystallising into
hard statute law the existing decisions with all their
imperfections, anomalies, and absurdities left intact.
As matters stand, the elastic nature of Equity (as
above pointed out by Sir G. Jessel, M.R.) enables
modern judges to "refine and improve," i.e., to brush
aside the more monstrous decisions of the past, by
making astute distinctions which would be impossible
were they bound by a Statutory Code. The law of
trusts is anomalous in this, that it imposes upon a
gratuitous agent (who in practice is very often quite
unable to refuse the office) a degree of care and a
responsibility for the acts and defaults of himself and
others, which no other gratuitous agent is called upon
to bear. Founded originally on conscience, by the
Clerical Chancellors, it is even now unduly severe
upon the natural failings of ordinary men. The law
is, however, still undergoing a process of evolution.



X Preface.

and trustees are no longer dealt with in the merciless
fashion of a century ago. But much still remains
to be done. For instance, how can the rule be
defended, which gives beneficiaries the right of
making a protit out of a breach of trust committed
by a perfectly honest trustee (perhaps some old lady
utterly ignorant of business) who has inadvertently
invested in a wrong stock, by giving them the option
either to recover the amount required to purchase
the exact sum of right stock which would have been
acquired if the trustee had obeyed the trust, or, if the
r'ujht stocl- Juts dcprcciatt'cl, to call upon the trustee to make
good the full original amount of the trust fund? Vvhy,
too (seeing that the measure of a trustee's liability is
the loss to the estate), should not an honest trustee be
allowed to set off a gain on one breach of trust against
a loss on another ? The difficulties and dangers that
beset a benevolent trustee who consents (for no benefit
to himself) to purchase the interests of one of his bene-
ficiaries, might also w^ell be mitigated ; while (having
regard to the principle that the wishes of a settlor are
not regarded, but merely the rights which he has con-
ferred on the beneficiaries), what reasonable argument
is there against candidly authorising the Court, where
all adult beneficiaries are unanimous, to make orders
binding the interests of infants or unborn persons
if convinced that they will be benefited, just as it
may now bind the interests of a married woman
restrained from anticipation ? Surely the judgment
of a Chancery judge on such a question, after the
event, is incontestal)ly superior to the crude and
im])erfect foresight of some ignorant testator or his
unskilful adviser, or even of those most competent
jackals of the Chancery practitioner, the local curate
or the parish clerk. No doubt of late years learned



Preface. xi

judges are tentatively enlarging their jurisdiction as to
this, by purporting to sanction so-called compromises
on behalf of infants, even where it is clear that if the
case were argued there would be nothing to compro-
mise. But that is only adding one more legal fiction ;
and is not always available, especially where land is
concerned. Lastly, a good Bill on repairs of trust
property would be a Godsend, if it put an end to the
subtleties, uncertainties, and unreasonable anomalies
of the existing law.

It is therefore humbly suggested that would-be
legislators on Trusts would do well to put the law
on a reasonable business footing, before adventuring
upon Codification.

The authorities in this edition are noted up to and
including the April, 1912, numbers of the Law
Keports.

ARTHUK UNDERHILL.

Lincoln's Inn,

20th April, 1912.



TABLE OF CONTENTS.



PAGE

Preface vii

Table of Contents xiii

Table of Statutes Cited xix

Table of Cases Cited xxvii



DIVISION I.— PRELIMINARY DEFINITIONS.

Art. page

1. — Definitions of Trust, Trustee, Trust Propertj', Beneficiary,

and Breach of Trust .....
2. — Definitions of Legal and Equitable Estates
3. — Definitions of Express and Constructive Trusts
4. — Definitions of Simple and Special Trusts .
5. — Definitions of Executed and Executory Trusts



DIVISION II.— EXPRESS OR DECLARED TRUSTS.

Chapter I. — Introduction.
6. — Analysis of an Express or Declared Trust 13

Chapter II. — Matters Essential to the prim^? facie
Validity of an Express Trust.

7. — Language evincing an Intention to Create a Trust . . .15
8. — How far Valuable Consideration is necessary to bind the

Settlor or his Representatives ...... 38

9. — What Property is capable of being made the Subject of a

Trust u-i

10.— The Legality of the Expressed Object of the Trust . . .60
11. — Necessity or otherwise of Writing and Signature ... 78

Chapter III.— Validity of Declared Trusts in
Eelation to Latent Matters.

12.— Who may be a Settlor 87

13. — ^Who may be Beneficiaries 91



xiv Table of Contents.

Akt. page

14. — When a Trust is Voidable for Failure of Consideration, Mistake,

ur Fraud .......... 92

15. — Effect of the Bankruptcy of the Settlor on the Validity of a

Settlement 101

It;. — "When a Trust is Void as against Settlor's Creditors under

1:3 Eliz. CO 101

IT. — When a Trust is Void as against Subsequent Purchasers from

Settlor 114

CiLVPTEu IV. — The Inteupketatiox of Executoky Trusts.

18. — Executory Trusts not construed so strictlj' as Executed Trusts . 119
19. — Distinction between Executory Trusts arising respectively

under Marriage Ai'ticles and Wills 122

20. — How far the Wife is bound by Covenants to settle Property . 129
21. — Property which ii prima facie excluded from a Covenant to

settle Other or After-acquired Pro i^erty 133

22. — What Property is comprised in a General Covenant to settle

Property to which the Wife is presently entitled . . .138
23. — What is comprised in a Covenant to settle After-acquired

Property of the Wife, or of the Husband in her Eight . . 1 38
24. — Covenants to settle a Definite Interest in Property . . . 142
25. — Covenants to settle Property exceeding a Certain Value . .144



DIVISION III.— CONSTRUCTIVE TRUSTS.

Chapter I. — Introductiox.
26. — Analysis of Constructive Trusts 147

Chapter II. — Resulting Trusts.

27. — Where Equitable Interest not wholly disposed of . • . 149
28. — Resulting Trusts, where Trusts declared are Illegal . .155
29. — Resulting Trusts, where Purchase made in Another's Name . 159
30. — To whom Property results IGG

Chapter III. — Constructive Trusts which are not
Resulting.

31. — Constructive Trusts of Profits made bj' Persons in Fiduciary

Positions . . . . . . . . . .175

32. — Consti-uctive Trusts where Equitable and Legal Estates are not

united in the same Person ] 79



Table of Contents. xv

DIVISION IV.— THE ADMINISTRATION OF A
TRUST.

Chapter I. — Disclaimer and Acceptance of Trusts.
Art. page

33. — Disclaimer of a Trust 187

34. — Acceptance of a Trust 190

Chapter II. — The Estate of the Trustee, and its
Incidents.

35. — Cases in which the Trustee takes any Estate . . . .193
36. — The Quantity of Estate taken by the Trustee of Lands . .196
37. — The EiSect of the Statutes of Limitation on the Trustee's Estate 202

38. — Bankruptcy of the Trustee 205

39. — The Incidents of the Trustee's Estate at Law .... 206
40. — Trustee's Estate on Total Failure of Beneficiaries . . . 207



Chapter III. — The Trustee's Duties.



211



214
222

228

233

246
258



41. — Duty of Trustee on Acceptance of Trust ....

42. — Duty of Trustee to obey the Directions of the Settlement

unless Deviation sanctioned by the Court
43. — ^Duty of Trustee to act impartially between the Beneficiaries
44. — Duty of Trustee to sell Wasting and Reversionary Property
45. — Duty of Trustee, as between Tenant for Life and Eemainder

man, in Relation to Property pending Conversion .
46. — Duty of Trustee in Relation to the Payment of Outgoings OTit

of Corpus and Income respectively. ....
47. — Duty of Trustee to exercise Reasonable Care .
48. — Duty of Trustee in Relation to the Investment of Trust Funds 269
49. — Duty of Trustee to see that he paj's Trust Moneys to the Eight

Persons ........... 287

50. — Duty of Trustee not to Delegate his Duties or Powers . . 292
51. — Duty of Trustees to act jointly where more than one . . 305
52. — Duty of Trustee not to set u-pJKs tertii ..... 309

53. — Duty of Trustee to act gratuitously . . . . . .311

54. — Duty of Trustee not to traffic with or otherwise profit by Trust

Property 315

55. — Duty of Trustee to be ready with his Accounts . . . 323

Chapter IV. — The Powers of the Trustee.

56. — General Powers of Trustees ....... 327

57. — Power of Trustees to Sell or Mortgage the Trust Property . 335

58. — Power of Trustees in Relation to the Conduct of Sales . . 341

59. — Power of Trustees to give Receipts ...... 346



xvi Table of Contents.

Art. page

GO. — Power to compound and to settle Disputes . . . 340

Gl. — Power to allow Maintenance to Infants 348

62, — Power of Trustees to pay to Attornej' appointed by Beneficiary 352
63. — Suspension of the Trustee's Powers by Administration Action . 353

Chapter V. — Power of the Beneficiaries.

G4. — Power of a Sole Beneficiary or of the Beneficiaries collectively

to extinguish the Trust 355

Go. — Power of one of several Beneficiaries partially interested in a

Special Trust ... 361

Chapter VI. — The Death, Eetiremext, or Eemoval of
Trustees, axd the Appointmext of New Trustees.



GG. — Survivorship of the Office and Estate ....
67. — Devolution of the Ofiice and Estate on Death of the Survivor
68. — Eetii'ement or Eemoval of a Trustee ....

69. — Appointment of New Trustees

70. — Vesting of Trust Property in New Trustees



365
366
373
376
39G



Chapter VII. — Appoixtmext of a Judicial Trustee.
71. — Statutory Power of the Court to appoint a Judicial Trustee . 407

Chapter VIII. — The Public Trustee.

72. — The Nature and Eunctions of the Public Trustee and the
Guarantee of the State to be answerable for his Breaches of
Trust 411

73. — The Appointment of the Public Trustee as an Ordinary Trustee 416

74. — The Appointment and Eemoval of the Public Trustee or certain

Corporate Bodies as mere " Custodian Trustee " . . . 419

75. — The respective Duties, Eights, and Liabilities of Custodian

Ti-ustee and Management Trustees 420

76.— Special Eules relating to the Public Trustee .... 422

Chapter IX. — Admixistratiox of New Trusts created
under Limited Powers in the Original Settlement.

77. — By whom New Trusts created by Appointments are to be

carried out 425

Chapter X. — The Eights of the Trustee.

78. — Eight to Eeimbursement and Indemnity 429

79. — Eight to Discharge on Completion of Trusteeship . . . 440
80. — Eight to pay Trust Funds into Coui-t under certain Circum-
stances 442



Table of Contents. xvi

Chapter XI. — The Eight of Trustees and Beneficiaries

TO SEEK THE ASSISTANCE OF THE PUBLIC TRUSTEE OR

THE Court in Auditing ok Auministeuing the Trust.

Art. page

81. — Eiglit of Trustee or lii'iicficiiiry to Ollicial Audit of the Tru.st

Estate through the Public Trustee ...... 445

82. — Eight of Trustee or Peneticiary to take the Direction of the

Court or a Judge in Eeh;tion to Specific Questions . . 417

83. — Eight tinder certain Circumstances to have the Trust adminis-
tered under the Direction of the Court ..... 455



DIVISION v.— THE CONSEaUENCES OF A BREACH
OF TRUST.

Chapter I. — The Liability of the Trustees.

84. — The Measure of the Trustee's Eesponsibility .... 459

85. — The Liability, Joint and Several ...... 468

86. — No Set-off allowed of Gain on one Preach against Loss on

another ........... 469

87. — Property Accxuired either wholly or partly out of Trust Pro-
perty becomes Liable to the Trust . . . . . .471

88. — Any of the Trustees or Beneficiaries may ajiply to the Coui't
by Interlocutory Motion to safeguard the Trust Property if
endangered . . . . . . . . . .476

89. — Fraudulent Breach of Trust is a Crime ..... 479

Chapter II. — Protection accorded to Trustees in
Case of Breach of Trust.

90. — General Protection where they have acted Eeasonably and

Honestly 481

91. — Statute of Limitations ........ 484

92.— Concurrence of or Waiver or Eelease by the Beneficiaries . 492
93. — Protection against the Acts of Co-trustee .... 498

94. — Trustees generally entitled to Contribution infer sc, but may bo
entitled to be Indemnified by Co-trustee or Beneficiary who
instigated Breach ......... 500

Chapter III.— Liability of Third Parties and
Beneficiaries.

95. — Liability of Third Parties or Beneficiaries who are Parties to a

Breach of Trust 509

96.— Following Trust Property into the Hands of Third Parties . 518



INDEX.
T.



TABLE OF STATUTES CITED.



PAGE
27 Hen. 8, c. 10. (Statute of Uses, 1535) .... li).'?, 195, 427

13 Eliz. c. 5. (B'raudulent Conveyances Act, i:>7i) . 102, lo4, 105,

106, 110, 43(1

c. 20. (Benefices Act, 1571) 58

27 Eliz. c. 4. (Fraudulent Conveyances Act, 1584) . . . 114

s. 4 124

22 ct 23 Car. 2, c. 2. (Statute of Distribution, 1670) . . . . 21

29 Car. 2, c. 3. (Statute of Frauds, 1677) —

s. 4 78, 79

s. 5 79

s. 7 ....... . 78, 79

s. 8 150

1 Ja. 2, c. 17. (Statute of Distribution, 1685) .... 21

I Geo. 2, c. 14. (Navy Act, 1727)—

s. 7 58

39 & 40 Geo. 3, c. 98. (Thellusson Act, 1800) . . . 65. 6(), 67, 73, 74
47 Geo. 3, sess. 2, c. 25. (Pensions Act, 1807)—

ss. 1—14 58

57 Geo. 3, c. 99. (Benefices Act, 1817) 58

I I Geo. 4 & 1 Will. 4, c. 20. (Navy Act, 1830)—

s. 47 59

s. 54 59

c. 40. (Administration of Estates Act, 1830) . . 208

3 & 4 Will. 4, c. 27. (Real Property Limitation Act, 1833) . . 183, 203,

204, 484, 486, 487, 490, 491, 495,
502, 508, 510, 512, 513

s. 7 203

s. 12 205

s. 25 8, 485, 486, 487, 490, 492

s. 40 492

c. 74. (Fines and Recoveries Act, 1833) . . .81, 496

4 i: 5 Will. 4, c. 76. (Poor l^aw Amendment Act, 1834) . . . 355

s. 57 3.33

5 &6 Will. 4, c. 76. (Municipal Corporations Art, 1835) ... 90

s. 94 90

7 Will. 4 & 1 Vict.c. 28. (Real Property Limitation Act, 1837)— . . 183
1 Vict. 0. 26. (Wills Act, 1837) . . . 152, 197, 199 200, 202

s. 9 79

ss. 30, 31 197, 198

1 & 2 Vict. c. 110. (Judgments Act, 1838)—

s. 11 105

6 & 7 Vict. c. 18. (Parliamentary Voters Registration Act, 1843) —

s. 74 207

c. 73. (Solicitor's Act, 1843) —

s. 39 431

8 kO Vict, c, 18. (Lands Clauses Consolidation Act, 1845) . 218, 338

s. 7 338

s. 9 338

s. 69 338

s. 71 338

c. 106. (Real Property Act, 1845) -

s. 6 55

s. 7 187

9 & 10 Vict. c. 101. (Public Money Drainage Act, 1846) , . 275, 287

b2



10& 11 Vict,


, c. 11.
c. -62.


11 1- 12 Vict,
13 .V: 14 Vict.


c. !)(>.
c. 119.
c. 31.
c.60.


K; A: 17 Vict.


c. 51.


18 k 19 Vict.

19 A: 20 Vict.


c. 43.
c. 9.


20 & 21 Vict.


c. 57.


22 i: 23 Vict.


c. 35.



XX Table of Statutes.



PAGE
(Public Mojicy Drainage Act, 1847) . . 275, 287
(Landed Property Inipruvenieiit (Ireland) Act,

1847) 275

(Trustee Relief Act, 1847) 354

(Pul)lie Money Drainage Act, 1848) . . 275, 287
(Public Money Drainage Act, 185U) . . 275, 287

(Trustee Act, 1850) 399, 401

s. 4() 206

(Succession Duty Act, 1853) —

s. 44 340

(Infant Settlements Act, 185.5) ... 88, 89
(Public Money Drainage Act, 1850) . . 275, 287
(Mercantile Law Amendment Act, 1856) . . 500
(Married Women's Reversionary Interests Act,

1857) 89, 90, 355, 496

(Law of Property Amendment Act, 1859) , . 339

s. 11 216

s. 14 195, 339

s. 15 339

s. 16 339

s. 26 289, 353

s. 31 293, 498

c. 61. (Matrimonial Causes Act, 1859) —

s. 5 93, 154

(Infants Marriage Act, 1860) .... 88

(Lands Clauses Act, 1860) 248

(Trustee Act, 1860) 386

ss. 1, 2, 34 342

s. 27 380

(Larceny Act, 1861) —

s. 80 479

s. 86 479

(Companies Act, 1862) —

s. 30 306, 307

Table A., clause 1 306

(Confirmation of Sales Act, 18()2) . . . 344

(India Stock Certilieate Act, 1863) . . .270
(Improvement of Land Act. 1864) . . 183, 274,

275, 286

s. 24 332

28 k 29 Vict. c. 78. (Mortgage Debenture Act, 1865) .... 275

30 (.t 31 Vict. c. 144. (Policies of Assurance Act, 1867) . . , .55



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