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A treatise on the law of trusts and trustees (Volume 2) online

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the sales of land, and such further allowances for expenses as are reasonable.
2 Rev. Stat. 1219, March 3, 1845, § 36. But trustees receive no compensa-
tion except under a special stipulation. Constant v. Matteson, 22 111. 54G.

In ]\Iissouri, executors are allowed commissions not exceeding six per
cent on the personal estate and the sales of land. A gross sum m.iv be
allowed. Fisher v. Smart, 7 Mo. 581.

In Iowa, see First National Bank v. Owen, 23 Iowa, 185.

In California, professional services of the trustee must be paid for out of
the income of the property. Filing v. Naglee, 9 Cal. 683.

In Arkansas, see Briscoe v. State, 23 Ark. 592.

' Northern Central ll.R. Co. v. Keighton, 29 Md. 572; Mason v. Rose-
velt, 5 John. Ch. 534.


fund, and another commission allowed at the close of the
trust for the care of the fund and for paying it over or distrib-
uting it to the persons entitled.^ Care is taken that double
commissions are not allowed. In many States the commis-
sions and compensation of the trustees depend upon their
fidelity in the administration of the trust. If they are guilty
of any breach of trust, or of any vexatious or improper con-
duct, the courts can withhold all compensation, or they can
allow such compensation as will pay for the value of their ser-
vices so far as they have been beneficial to the estate. In some
instances, compensation has been allowed and retained towards
making good a breach of the trust.^ In other States, it has
been held that the trustees have a vested right to the com-
missions or compensation given by the statutes. But if the
rate is named in the instrument of trust, it cannot be increased.^

' In Pennsylvania, one and one half per cent was allowed. Luken's App.
47 Penn. St. 356.

* Belknap v. Belknap, 5 Allen, 472.

^ Briscoe v. State, 23 Ark. -092; College of Charleston v. Wellington,
13 Rich. Eq. 195.





§ 920. Trusts may be terminated by decree upon the consent of all parties.

§ 921. How the responsibility of a trustee may be terminated.

§ 922. Whether trustees are entitled to a release and discharge. ,

§ 923. Effect of a release or discharge.

§ 924. Where the fund is distributed under a decree.

§ 925. If trustees pay to new trustees, they may insist upon a release.

§ 926. Trustees must see that the fund reaches the proper persons.

§ 927. Trustees are responsible for any mistake in that respect.

§ 928. Right of the trustees to a decree of the court.

§ 929. Trustees ma_v pay the fund to agents and attorneys, but they must see to the

validity of their authority to receive it.
§ 930. To what persons they may pay.

§§ 931, 932. Remedies in case they pay to the wrong parties.
§ 933. The costs of distributing the trust property must be paid out of the fund.

§ 920. There are two modes in which a trust may be ter-
minated. (1.) It may terminate upon the accomplishment of
the jmrposes for which it was created. When the time expires
during wliich a trust is to exist, or when the event happens
upon wliich a trust is to cease, and the trustees have performed
all their duties and distributed the fund as directed, the trust
is at an end. It has been previously stated, that when the
purposes of a trust are accomplislicd, conveyances from the
trustees will be presumed after a sufficient lapse of time.^ If
a trust ceases by expiration of time, and trustees are to divide
real estate equally among the cestuis que trust entitled to the
same, a conveyance to them as tenants in common is a per-
formance of their duties and powers, and ends the responsibility
of the trustees.^ (2.) Although a trust may not have ceased

» Manice v. Manice, 43 N, Y. 203 ; Deering v. Tucker, 55 Me. 284.
* How V. Waldron, 98 IVIass. 281; Emerson v. Cutler, 14 Pick. 114;
Fisher v. Wigg, 1 P. Wm. 14.


by expiration of time, and although all its purposes may not
have been accomplished, yet if all the parties, who are or may
be interested in the trust property, are in existence, and sui
juris, and if they all consent and agree thereto, courts of equity
may decree the determination of a trust and the distribution of
the trust fund among those entitled. The same rule applies if
it become impossible to carry out the trust.^ It was for some
time doubtful whether a trust could be thus determined prior to
the time contemplated by a testator; but it is now well settled
that where all the parties are capable of acting, and desire to
terminate the trust, courts can decree its determination.^ There
can be no doubt upon principle, that, when all those who have
the entire legal and beneficial interest in property agree to dis-
pose of it in a particular manner, courts will give effect to their
agreements. And so in case of a marriage settlement of a
woman's property in trust for herself and her issue and her hus-
band, and there are issue, and the marriage has been dissolved
upon the libel of the wife, the court decreed the termination of
the trust and the payment of the trust fund to the wife.^ But
in settlements where there are cross remainders or contingent
interests which cannot be determined and adjusted until the
happening of certain events, the trusts cannot be terminated,
nor can the share of either one of the cestuis que trust be paid
over to him.^ If a trust is created for the life of one, it can-
not be terminated before his death, although there are other
words that imply that it may be terminated earlier.^ If it is
clear, however, that part of the principal of a fund is to be

' Hawthorn v. Hog^G Bush, 501.

* Ante, §§ 304, 520/ Bowditch v. Andrew, 8 Allen, 339; Smith v. Har-
rington, 4 Allen, 566, 568; Norris v. Thompson, 4 Green Ch. 314; Inches
V. Hill, 106 Mass. 577 ; Taylor v. Huber, 13 Ohio St. 288; Short v. Wilson,
13 John. 53. But see Walker v. Sharp, 68 N. C. 363.

3 Fussell V. Dowding, L. R. 14 Eq. 423; Wells v. Malbon, 31 Beav. 48;
Wilkinson v. Gibson, L. R. 4 Eq. 162 ; Swift v. , L. R. 10 Eq. 15.

* Prentice v. Hall, 106 Mass. 597.

* Schaffer v. Wadsworth, 106 Mass. 19.

§§ 920, 921.] DISCHARGE OF THE TRUSTEES. 557

paid over to one of the ceshds que trust upon his arriving at
the age of twenty-one, or upon any other eTcnt, the trust will
terminate as to that part and continue as to others.^ But a
part of the cestuis que truU cannot terminate the trust.^

§ 921. The trustee may be discharged from the office and
from future liability in several different ways. (1.) The ex-
piration or full performance of all the trusts, and a convey-
ance or transfer of the trust property according to the terms
of the trust, is a discharge of the trustee.'^ (2.) The trustee
may be discharged by a decree of the court declaring, with
the assent of all parties in interest, the trust at an end,
and that the trustee shall distribute the fund.^ (3.) Although
the trust is not determined, the trustee may be discharged
from his office with the concurrence of all the cestuis que
trust, if sui juris ; and the appointment of a new trustee is
not absolutely necessary to give validity to the discharge.^
(4.) A trustee may be discharged, and a new one appointed, by
virtue of a power to that effect contained in the instrument of
trust.^ (5.) The death of a trustee operates to discharge his
estate from all responsibility for acts done by his cotrustees or
others after his decease.'^ (6.) A trustee may be discharged
by a decree of court, appointing another trustee, or giving such
other directions to the trust as it sees fit.^ (7.) The sale of
the trust estate under a prior incumbrance, or taking it from
the trustee under a title paramount, puts an end to his duties
and responsibility.^ So a release by the trustee to the assignor,
in an assignment for creditors, puts an end to the trust ; '^^ and

1 Walker v. Beal, 106 Mass. 110.
^ Bancroft v, Lepieur, 48 Mo. 418.

^ Goodson V. Ellison, 3 Russ. 593 ; Halford v. Phipps, 3 Beav. 434 ;
Tavenner v. Robinson, 2 Rob. (Va.) 280.

* See ante, § 920. » Ante, §§ 274, 285.

« Ante, §§ 288, 297. ^ Ante, § 426.

» Ante, §§ 282, 283.

» De Bevoise r. Sandford, 1 HofT. Cii. 195.
'0 Huckabee v. Billingsly, 10 Ala. 414.


a purchase of the trust estate by the trustee ends the trust, if
the trustee is duly authorized to make the purchase.^ A con-
veyance by the trustee to the cestui que trust merges the titles
and determines the trust, where it is proper that such convey-
ance should be made ; but if the cestui que trust is a minor, the
trustee wilP be holden, notwithstanding such conveyance.^ So
if tl>e cestui que trust is a married woman, a conveyance to
her by the trustee will not discharge him ; but after the death
of her husband such conveyance will discharge him.^ A mere
relinquishment of the trust, or of the property, which does not
purport to convey the property to some person authorized to
receive it, does not discharge the trustee.^ But payment by
the trustee to a person entitled to receive the money is a dis-
charge of the trustee.^ Mere neglect for a long time to ad-
minister a trust does not terminate itJ

§ 922. The discharge of a trustee, upon the determination of
the trust, or upon the appointment of another trustee, does not
of itself release the trustee from responsibility for his past con-
duct, and the cestui que trust may still inquire into his adminis-
tration prior to his discharge ; ^ and may require him to account
for all his transactions.^ Therefore it is usual, upon the final
settlement and transfer of the trust property to the parties
entitled, to discharge the trustee by a formal release of all
claims executed by all the cestuis que trust who are sui juris.
It seems to be a reasonable requirement, on the part of the

' Johnson v. Johnson, 5 Ala. 90.

•^ Waugh V. Wyche, 23 L. J. Ch. 823. ^ Ante, § 624.

* Ante, § 652; Parker v. Converse, 5 Gray, 336.

° Dick V. Pitchford, 1 Dev. & Bat. Eq. 480; Richardson v. Cole, 2
Swan, 100 ; Diefendorf v. Spraker, 10 N. Y. 246 ; Waugh v. Wyche, 23
L. J. Ch. 833 ; Thatcher v. Candee, 3 Keyes, 157 ; Webster v. Vander-
venter, 6 Gray, 429; Gilchrist v. Stevenson, 9 Barb. 9.

« Hayes v. Otelly, L. R. 14 Eq. 4.

■^ Tainter v. Clark, 5 Allen, 66.

« Wright's Trusts, 3 K. & J. 419 ; v. Osborne, 6 Ves. 455.

9 Clark V. Devereaux, 1 S. C. 172.

§§ 921, 922.] RELEASE OP TRUSTEES. 559

trustee, wlien he parts with the fund and the muniments of
title, and, in some sort, with the means of defence, that he
should be secured against future litigation ; for although the
cestuis que trust may impeach such a receipt and discharge on
the ground of fraud, accident, or mistake, yet it is prima facie
evidence, and throws the burden upon those seeking to impeach
it.^ It has been determined, however, that where a cestui que
trust has a clear right to a conveyance or transfer of the prop-
erty, the trustee cannot demand a release, and refuse to make
the transfer until it is given.^ It has also been said, that, where
trustees transfer the property in accordance with the terms of
the instrument of trust, they are not entitled to a receipt or
discharge, as a debtor, making a tender of payment of a debt
owed by him, cannot demand a receipt ; " but if they transfer
the trust property to the cestuis que trust, in a manner, or at a
time not contemplated by the instrument, they may require a
receipt and discharge.* Mr. Lewin criticises this distinction
made by Vice-Chancellor Kindersley ; ^ but it is obvious that
the trustees cannot be com})elled to transfer the property, ex-
cept in the exact manner, and upon the terms, and at the time
pointed out, in the instrument of trust ; if, therefore, the cestuis
que trust agree that the trustees may depart from the terms of
the instrument, they may require a release under seal, or even
a bond of indemnity, and they may refuse to part with tlie fund
until such security is given. It has been held, however, that
an executor, in winding up and distributing an estate, is entitled
to a release.^ So wliere the title of the cestui que trust is not
perfectly clear, or there is a possibility that there may be other

1 Fowler V. Wyatt, 24 Beav. 232.

* Fulton V. Gilinour, 8 lieav. 15-1; Hill on Trustees, 580; Cliadwick v.
Heatley, 2 Coll. 137; Wright's Trusts, 3 K. & J. 421 ; Warter v. Ander-
son, 11 Ilare, 303.

' King V. Mullins, 1 Drew. 808.

* IbiiL; Re Cater's Trust, 25; Beav. 366; Wright's Trusts, 8 K. & J.

6 Lewin on Trusts, 289 (5th ed.).

* King V. Mullins, 1 Drew. 311 ; Chadwick v. Ileatley, 2 Coll. 137.


claimants, or that the propriety of the conveyance or payment
may be called in question at some future time, the trustees may
require an indemnity against such future claims, or may refuse
to convey without a decree of the court.^

§ 923. Of course, a person not sui juris, as an infant, cannot
bind himself by a receipt, release, or bond of indemnity .^ If a
release is executed to a trustee by a cestui que trust just after
coming of age, the courts will investigate the transaction, and
require evidence that the trustee took no advantage of his posi-
tion and influence.^ A release by the cestuis que trust will not
be binding, unless the parties are made fully acquainted with
their own rights, and the nature and full extent of the liabili-
ties of the trustee.* Any concealment, misrepresentation, or
other fraudulent conduct, will vitiate such a release.'^ There
should, therefore, be a full statement and detailed explanation
of the accounts, which should be referred to in the receipt, re-
lease, or discharge, especially if there is any thing in the nature
of a breach of trust.^ Even if the accounts are clearly stated,
the release will be set aside, if there is any misapprehension as
to the basis upon which they are made up.'^ As before stated,
a release executed under proper advice, with ample time for
mature deliberation, and "upon full information, is prima facie
valid ; and the burden is upon the party disputing it to im-
peach it.^

1 Goodson V. Ellison, 3 Russ. 583 ; Re Primrose, 23 Beav. 590 ; Talbot v
Radnor, 3 M. & K. 252; Curteis v. Candler, 6 Mad. 123; Knight v. Mar-
tin, 1 R. & M. 70; Taml. 237; Taylor v. Glanville, 3 Mad. 176; Angler
V. Stannard, 3 M. & K. 566 ; Campbell v. Home, 1 Y. «& Col. Ch. 664 ;
Gardiner v. Downes, 22 Beav. 397 ; Merlin v. Blagrave, 25 Beav. 137.

' Overton v. Banister, 3 Hare, 503.

' Walker v. Symonds, 2 Swans. 69 ; Wedderburn v. Wedderburn, 2
Keen, 722; 4 M. & Cr. 41.

4 Ibid. ; Charter v. Trevelyan, 8 Jur. 1015 ; 11 CI. & Fin. 714.

* Ibid. ; Penobscot R.R. Co. v. Mayer, 60 Me. 306.

« Ibid. T Ibid.

8 Be Sherwood, 3 Beav. 338; Portlock v. Gardner, 1 Hare, 594; Millar
V. Craig, 6 Beav. 433 ; Fowler v. Wyatt, 24 Beav. 232.


§ 924. Where tlie trustee pays and distributes the trust fund
under the direction and decree of the court, he is indemnified
by the order itself, and needs no release. It would be impos-
sible to hold any trustee responsible for obeying the orders of
a court. It is, however, his duty to inform the court fully of
all material facts within his knowledge ; for a decree procured
by any concealment or other management would be opened,
and the trustee might be held responsible.^

§ 925. If the cestuis que trust create by agreement a new
trust, and desire the trustees of the old trust to convey the
property to new trustees under a new settlement, the old trus.
tees may insist upon a receipt for the property ; but whether
they can insist upon a discharge from all past liabilities, or
ujjon a general indemnity, is doubtful. Mr. Lewin says, that
this requisition of the trustees is generally complied with,
though it could not be enforced.^

§ 926. Trustees, and all other persons having money in their
hands to distribute and pay over to other persons, must see
that the money reaches the hands of the persons entitled to
receive it ; for if they make any mistake in the person to whom
they pay the money, they are still liable to ])ay it to the proper
person. If a person borrows money of a trustee, and subse-
quently discovers that it is trust money, loaned in breach of
the trust, he cannot safely pay it back, unless the trustee has
the power of signing receipts.^ If the trustee has notice of an

1 Waller r. Barrett, 24 Beav. 3(jC ; Farrell v. Smith, 2 B. & B. 337;
Williams v. Headland, 4 Gif. 495 ; Fletcher v. Stevenson, 3 Hare, 370 ;
Gillespie v. Alexander, 3 Russ. 137; Sawyer v. Birehmore, 1 Keen, 401 ;
David I'. Frowd, 1 U. & K. 209 ; Smith v. Smith, 1 Dr. & Sm. 384; Knateh-
bull V. Fearnhead, 3 M. & Cr. 12G ; Underwood v. Hatton, o Beav. 39 ;
Bennett v. Lytton, 2 John. & Hem. 155 ; Low v. Carter, 1 Beav. 42G ;
Moor's App. 10 Barr, 435; Coventry v. Coventry, 1 Keen, 758; Green-
wood V. AVakeford, 1 Beav. 366.

^ Lewin, 289; Hill, 581; He Cater's Trusts, 25 Beav. .356.

' Sheridan v. Jones, 7 Ir. Eq. 115; Abbott v. Reeves, 49 Penn. St. 494.



assignment by the cestui que trust, lie cannot safely pay to the
assignor either principal or interest, although the assignment
is in the nature of a mortgage only ; ^ for notice to the trustee
of the assignment is equivalent to taking possession by the
assignee under a mortgage.^ Even if the deed is fraudulent
and voidable, the trustee cannot pay to the assignor until it is
avoided. On the other hand, it is said that the trustee may
safely pay to the assignee, until the deed is impeached, espe-
cially if the assignee has the power of signing receipts.^ If the
cestui que trust is dead, payment is to be made to his personal
representatives ; and if the trustee refuses to make such pay-
ment, and involves himself in disputes over the cestui que trust's
estate, he will be ordered to pay the costs of a suit for the
recovery of the fund.* If the cestui que trust is a married
woman, the property, if settled to her separate use, may be
paid over to her ; or if she is divorced, it may be paid to her as
if her husband was dead.^

§ 927. If through any misapprehension on the part of a trus-
tee, he makes a payment to a person not authorized by the
terms of the trust to receive it, he will be held personally
responsible for the misapplication, to the persons W'ho can
establish a better right ; and the advice of counsel will not
protect him in making a wrong payment.^ There is a dictum
to the contrary in Ycz v. Emery ; ' but the general rule pre-
vails. But if trustees act in good faith in such case, and under

1 Cresswell v. Dewell, 4 Gif. 460.

^ Loveriflge v. Cooper, 3 Russ. 58.

3 Beddoes i\ Pugh, 26 Beav. 407.

" Smith V. Bolden, 33 Beav, 262.

* Wells V. Malbon, 31 Beav. 48.

6 Doyle V. Blake, 2 Sch. & Lef. 243; Peers v. Ceeley, 15 Beav. 209;
Urch V. Walker, 3 M. & C. 705; Boulton v. Beard, 3 De G., M. & G.
608; Turner v. IMaiile, 3 De G. & Sm. 497; Be Knight's Trusts, 27 Beav.
49; Neff's App. 57 Penn. St. 91; Miller v. Proctor, 20 Ohio St. 444.

' 5 Ves. 141.


the advice of counsel, the court will not impose costs. ^ If the
payment is to be made according to the laws of the domicile of
the trustees, they must be taken to know the law, and, if they
mistake the law, they are personally responsible ;2 l)ut they are
not bound to know the laws of foreign countries, unless called
to their notice ; if, therefore, they proceed in the ordinary
manner, according to the prima facie line of their duty, they
will be excused if they mistake the laws of foreign lands. ^
But as personal property is regulated by the law of the domicile
of the owner, it is always safer for the trustee to inquire as to
the law, if the cestui que trust is domiciled abroad ; although
he may not be liable for a mistake, if the difference between
the laws of the two countries is not brought to his notice*

§ 928. A trustee cannot be expected to incur the least risk
in tlie distribution of the trust fund. Therefore, where there is
a mere shadow of doubt as to the rights of the parties, he may
require a bond of indemnity. Such a bond, however, is not
very satisfactory, as tlie obligors may decease and their prop-
erty be divided long l)efore there is a call upon them to indem-
nify the trustee ; and if it appears that trustees have committed
a breach of trust under cover of such a defence, the court
shows no mercy .5 Therefore, if a third person makes a claim,
or if he refuses to state whether he has a claim, where the
trustee has a right to know, the trustee may bring such person
before the court by bill ; and if he claims improperly, or has
improperly refused to answer, he will be charged with the
costs.^ So where the equities are not perfectly clear, the trus-

^ Angler v. Stannard, 3 My. & K. 56G ; Dewey v. Thornton, 9 Hare,
232; Field v Donoughmore, 1 Dm. & W. 234.

* Miller v. Proetor, 20 Ohio St. 4-i4.

3 Leslie V. Baillie, 2 Y. & Col. Ch. 91.

* See Chrichton's Trusts. 24 L. T. 2G7 ; In re Blitlmian, L. R. 2 Eq. 23;
Re Helhnatrs Will, L. R. 2 Eq. 363.

^ Lewin, 253 (oth ed.).

« Re Primrose, 23 Beav. o'JO.


tee may decline to act without the sanction of the court ; and
his costs and proper expenses will be allowed.^ The trustee
himself will be protected by the decree of any court having
jurisdiction, and. exercising the jurisdiction regularly, upon
proper notice given ; - but if he appeals from such decree to a
higher court, he may be compelled to pay costs.^ If other par-
ties appeal, he must follow the case wherever it is carried, and
he will be allowed his costs and expenses. The suit in such
cases may be instituted by the trustee himself asking for the
direction of the court ; or parties claiming to be the cestuis que
trust may institute the suit against the trustee, and others
claiming to be the cestuis que trust. If, at the hearing, it
appears that the question was doubtful, and required the inter-
position of the court, all parties may have their costs out of
the trust fund, although the decree may be against some of
them.^ But if parties receive the money who are not entitled,
they are not protected, although the trustee paid the money
to them under a decree of the court, and is protected person-
ally by the decree. In such cases the party really entitled, if
he was not a party to the previous suit, and bound by the
decree, may have his suit against the person to whom the

1 Ante, § 476 a; Petition of Baptist Church, 51 N. H. 424; Wheeler v.
Berry, 18 N. H. 307; Goodhue v. Clark, 37 N. H. 531; Att'y-Gen. v.
Moore, 4 C. E. Green, 503; Vanness v. Jacobs, 2 Green, 153; Wood-
ruflf 0. Cook, 47 Barb. 304 ; Crosby v. Mann, 32 Conn. 482 ; Tillinghast
V. Coggeshall, 7 R. I. 383 ; Wiswell v. First Cong. Church, 14 Ohio St.
928; Talbot v. Radnor, 3 My. & K. 252; Goodson v. Ellison, 3 Russ.
683; Knight v. Martin, 1 R. & M. 70; Tanil. 237; Angier v. Stannard,
3 M. & K. 566; Curteis v. Candler, 6 Mad. 123; Campbell v. Home,
1 Y. & Col. Ch. 664 ; Gardiner v. Downes, 22 Beav. 397 ; Merlin v. Bla-
grave, 25 Beav. 137; Taylor v. Glanville, 3 Mad. 176; Loring r. Steineman,
1 Met. 207.

2 Loring v. Steineman, 1 Met. 207; Tucker v. Horneman, 4 De G., M.
& G. 395; Rowland v. ]\[organ, 13 Jur. 23.

=• Ibid.

" Westcott V. CuUiford, 3 Hare, 274; Turner v. Franipton, 2 Coll. 336;
Merlin v. Blagrave, 25 Beav. 134 ; Boreham v. Bignall, 8 Hare, 134 ; Lee
V. Delane, 1 De G. & Sm. 1.


money was paid, and lie will be held as a quasi trustee in favor
of the person who shows an absolute right to receive the

§ 929. A trustee may pay the money to the parties entitled,
or to an agent authorized to receive it ; and such authority
need not be shown by a power of attorney, nor by a deed, nor
even by an order in writing : but a trustee should not pay over
money without some proof in writing, signed by the parties, of
the authority of the agent to receive it. So the trustee must
see to the genuineness of the authority of the agent to whom
he pays or transfers the property ; for if there is forgery or
fraud, or want of authority in the person to whom the property

Online LibraryJairus Ware PerryA treatise on the law of trusts and trustees (Volume 2) → online text (page 55 of 64)