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

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is transferred, the trustee will be responsible.^ If the cestui
que trust is abroad, payments are generally made by the trustee
to an agent under a power of attorney ; the death of the cestui
que trust is a revocation of such agency or power, and the
trustee is personally responsible for payments made afterwards,
although without notice of the death. The cestui que trust may,
how'ever, direct the trustee to pay to a particular person until
further orders ; and such payments will be good, against the
representatives of the cestui que trust, until notice of the death
is given to the trustee : ^ but if tlie cestui que trust is a tenant
for life only, such payments, made after his death, would not
be good as against the remainder-man.* Mr. Lewin suggests
that the safe course, where the cestui que trust is abroad, is for
the trustee to remit the money to some reliable bank, to be

1 Kettleby v. Lamb, 2 Ch. R. 404; O'Brien v. Grierson, 2 B. & B.
328; Farrell v. Smith, 2 B. «& B. 337; Foster v. McMahon, 11 Ir. Eq.

2 Bostock V. Floycr, L. R. 1 Ch. 2(5; Ashby v. Blackwell, 2 Ed. 209;
Eaves v. Iliokson, ."O Beav. 136; Sloman v. Bank of England, 14 Sim. 475;
Harrison v. Pryse, Barn. 324; Kx paric J oWlR', 8 Beav. 1G8.

^ Vance u. Vance, 1 Beav. G05; Harrison v. Ashcr, 2 De G. & Sm. 43G ;
Kiddill V. Farnelt, 3 Sim. & Gif. 428.
* Be Jones, 3 Drew. 679.


drawn out on the personal checks or receipts of the cestui que
trust} The difficulty is remedied in England by Lord St.
Leonard's act, which makes all payments by the trustee to a
properly authorized person good and valid, in the absence of
any notice of the death of the cestui c^ue trust.^

§ 930. Where a trustee was to pay a small sum to a wnfe
wlio had deceased, the court ordered it to be paid to the hus-
band without administration ; ^ and so where the trustee was to
pay a small sum to a husband, the court ordered it to be paid
to his widow, although there was no administration.'^ When
the sum is considerable, the court will not hold the trustee
justified in paying it over without administration, in case the
person is deceased, to whom it was to be paid.^ So if the trus-
tee is to pay to an infant, a guardian must be appointed to
receive it ; but if an infant fraudulently represents himself of
age, and procures the money, the trustee will not be held liable
to pay it again when the infant becomes of age.^ If the trustee
is to pay over to a firm or partnership, he may pay to the sur-
viving partner or partners without the concurrence of the legal
representatives of a deceased partner, although it is better to
have such concurrence." So a trustee may pay over to a single
surviving trustee, although the court in the exercise of its dis-
cretion does not order such payments to be made.^

§ 931. If a trustee by mistake pays the wrong person, and is
compelled to pay again to the proper person, the court will not

' Lewin, 285.

^ •2-2 & 23 Vict. c. 35, § 26.

* Hinniiigs i-. Hinnlngs, 2 Hem. & Mil. 32.
■» Lewin, 286.

* Lewin, 286.

* Overton v. Bannister, 3 Hare, 503 ; Wright v. Snowe, 2 De G. & Sua.
321 ; Nelson v. Stocker, 4 De G. & J. 458.

' Phillips V. Phillips, 3 Hare, 289.

* Re Dickinson's Trust, 1 Jur. (>'. s.) 724.


impose interest.^ If he has overpaid a particular sum to a
cestui que trust, he may recoup himself out of any other interest
of that cestui que trust in the trust funds in his hands.^ Where
a trustee had paid wrong parties upon certificates forged by
one of the cesluis que trust, the court ordered the wrong parties
to repay what each had received, and also ordered the fraudu-
lent cestui que trust to make up to the parties rightfully enti-
tled, to the relief of the trustee, what should not be repaid. ^
In a suit against a trustee for breach of trust, the court ordered
a tenant for life, who was overpaid by the breach of trust, to
pay back the money to the trustee, without the institution of
another suit for that purpose.* A cestui cjue trust may, not-
withstanding the statute of limitations, if there has been no
improper laches, recover from another cestui que trust an over-
payment, erroneously made to him by the trustee."

§ 932. But if an executor overpays a legatee, the court will
not generally order him to refund, but will leave the parties to
their legal rights ; ^ especially if the executor pays voluntarily,
and in spite of doubts expressed by the legatee.' Nor can the
court order a purchaser from the legatee to refund .to an exec-
utor, although the executor may be liable to creditors.^ But
an executor who has been made to pay a creditor, and has
under his control a legacy appropriated by him as such, and
not actually paid over, may be allowed to recoup the debt from
such legacy ; ^ but he is not entitled to his costs for obtaining

' Saltmarsli v. Barrett, 31 Beav. 349.

' Livesay v. Livesay, 3 Russ. 287; Dibbs v. Goren, 11 Beav. 483.

' Eaves v. Hickson, 30 Beav. 136.

* Hood V. Clapham, 19 Beav. 90; Baynard v. Woolley, 20 Beav. oSo;
Downs V. Hodgson, 25 Beav. 177; Griffiths v. Porter, 25 Beav. 23(3; Moore
V. Moore, 1 Coll. 54.

* Harris v. Harris, 29 Beav. 110.

' Downes v. Bullock, 25 Beav. 54; Xeal v. Ma.\well, 40 Miss. 726.
^ Bate V. Hooper. 5 De G., M. «& G. 338.
» Noble V. Brett, 24 Beav. 499.
» Ibid.


such relief.^ A creditor who is not barred by the statute of
limitations, or to whose suit the statute is not pleaded, may
recover assets from a legatee to whom they have been improp-
erly paid by an executor ; ^ although such legatee holds in
trust,^ but he cannot recover them from purchasers for value,
as from persons claiming under a marriage settlement.^

§ 933. The costs of winding up a trust and distributing the
money, and all expenses for documents, deeds, and other papers,
must be paid from the trust fund.

1 Noble V. Brett, 26 Beav. 233.

2 Fordham v. Wallis, 10 Hare, 217.

3 Jervis V. Wolferstan, L. R. 18 Eq. 18.

* Dilkes V. Broadmead, 2 Gif. 113; 2 De G., F. & J. 566.


[The figures refer to sections All before 473 are in Vol. I. ; all after 472 are in Vol. II.]


. trustee cannot discharge himself by abandoning trust, 274.
ABATEMENT. See Disskisin.

adverse holding by a trustee in equity equivalent to, 864.

what is necessary to establish an, 863, 864.

of a legacy in trust, Bancroft v. Bancroft, 104 Mass. 226.
ABATOR, 241. See Dlsskisor.

not bound by a trust, 241.
ABROAD. See Jurisdictio.v.

payment to ceshti que trust abroad, how made, 929.

trust in personal estate abroad may be enforced, 70.

trusts in real estate abroad may be enforced, how, 71, 72.

receiver may be appointed when trustees are, 818, 819.

court can give relief between husband and wife, although the property
is abroad, 631.

whether a trustee being abroad is cause for his removal, 275.

whether may be removed, 275, 276.

how far a suit against will be allowed to proceed, 878.

how far suits against may proceed, 883.

how decrees against may b^e made and how amended, 883.

of trust confers no rights, 835.

and deprives the cestui que trust of no rights, 835.

not necessary of implied resulting and constructive trusts, 259.

no one compelled to accept a trust, 259.

no title vests until acceptance, 259.

an acceptance presumed until the contrary is shown, 289.

570 INDEX.


not to object is to accept, 259.

to act is to accept, 260, 401.

it is not necessary to execute a deed of acceptance, 269.

acceptance by deed may create a specialty debt in case of breach of
trust, 2G0.

but not if there are no covenants, 260.

a simple acceptance creates only a simple contract debt in case of
breach, 260.

what acts constitute an acceptance, 261, 401.

acceptance may be shown by parol, 261, 267.

acts tending to show acceptance may be explained, 261.

if the acts are left doubtful, an acceptance will be presumed, 261, 267,

a trustee's acts may be explained, 261.

mere custody of deed not necessarily an acceptance, 261.

what is an acceptance of trusts under wills at common law, 262.

what is an acceptance under the probate laws of the United States,

whether probate of the will and qualification as executor is an accept-
ance of a trust, 262.

as to whether an executor is acting as trustee, 262, 263.

whether the executor of an executor or trustee becomes a trustee,

acceptance cannot be limited to a particular part of the trust, 264-

acceptance implies active responsibilities, 266, 411.

cannot disclaim after acceptance, 268.

what is acceptance when bonds are required, 262.

acceptance by executor of trustee, 263.

acceptance by mistake, 266.

trustee acting in some things cannot protest that he is not acting gen-
erally, 401.

but a trustee may transmit a bill of exchange to, or deposit money
with, a cotrustee and not accept the trust, 402.

when acceptance of a deed is presumed, 56, 593.

a conveyance by, may create a constructive trust, 184-186.

a trustee responsible for a loss by, occurring during a breach of
trust, 847.

trustee not liable for losses by, if he proceeds regularly, 847.

may be limited to the time of filing bill as a penalty for delay or
laches, 230, 872.

how far back accounts may be ordered, 863, 871, 872.

INDEX. • 571

ACCOUNT, — continued.

in cases of express trusts, 863.

in cases of fraud, 228, 229, 2:30.

in cases of delay and lathes in filing a bill, 2.D0, 872.

trustee must keep accurate accounts, 821.

all persons claiming under the trustee must render true accounts, 821.

for what trustees must account, 209, 427, 431, 454, 538, 787, 847.

trustee must account for all bonuses, 427, 429.

and for all moneys paid to him for retiring from the office, 427.

proper form of accounting, 4G8.

how interest is computed in trustee's accounts, 468.

for all profits from trade, manufacturing, or speculation in which the

money has been directly or indirectly employed, 454.
if trustee receives usurious interest, he must account for it, 468.
trustee must keep an account of his expenses, 911.
what a bill for an account must allege, 890.

how an account must be stated when a trustee has deposited trust
money in bank mixed with his own, 465.

trustees may employ an, 912.
ACCUMULATION. See Perpetuity.

trust for accunmlation must not lead to a perpetuity, 393.

how long an accuniulation may be directed at common law, 394.

the Thellusson act, 394.

construction of the Thellusson act, 395.

construction of similar legislation in the United States, 398.

where the gift to accumulate illegally may be good, and only the

direction to accumulate fails, 396.
where the whole gift fails, 396.
disposition of the income or gift when it fails for an illegal direction

to accumulate, 397.
legislation in the various States upon the subject, 398.
accumulations for charitable purposes, 399, 738.
trusts to accumulate for raising portions, 584.
duty of trustees when an accumulation is directed, 472.
duty of trustees to accunmlate an infant's income, 622.
accumulation will cease at twenty-one, 622.

whether a direction to pay the premiums on a policy of insurance for
life is contrary to the rules against accumulations, 400.

what may prove a trust, 82, 84.
of a deed by a married woman when compelled, 48.

what is, 467, 849, 853, 870.

when it is a bar lo relief, 141, 467, 849, 853, 870.

572 INDEX.

ACQUIESCENCE, — continued.

is in the nature of an estoppel, 849, 853, 870.

persons under disability cannot acquiesce, 467, 849, 853, 867.

nor until they have knowledge of the act, 467, 850.

in an illegal investment, 467.

acquiescence in illegal investments not presumed from mere lapse of
time, 467.

mere expression of opinion, without intention that a trustee shall act
on it, is not acquiescence, 467.

a married woman may acquiesce in a breach of trust in her separate
property, 669.

acquiescence by a cotrustee in a breach of trust, 419.

to recover the trust estate must be in name of trustee, 17, 328, 520.

to be defended by trustee, 328.

to recover damages for trespass, flowing, taking for roads and other
purposes, to be in name of trustee, 328, 520.

when the action may be in name oi" cestui que trust, 17, 328, 520.

when trustee cannot release or discontinue, 520, 886, 900.

such release may be set aside, 520.

trustee may require indemnity for costs, 520, 886.

cestui que timst may be restrained until indemnity is given, 520.

when an action at law may be maintained against trustee, 17, 843.

when for money had and received, 843.

cause of action survives to the surviving trustee and to his executors
or administrators, 343.

husband entitled to, of a wife's clioses in action, 626, 682.

courts may order small sums to be paid without administration, 930.

when constructive trusts arise upon their contracts, 224, 228, 810, 811.

cannot deal with real estate without license of court, 224, 225.

•what a purchaser from, must ascertain, 225.

their right to deal with personal assets, 224, 225, 809, 814.

cannot sell directly or indirectly to themselves, 224, 225.

powers of administrators with the will annexed, 500.

personal property of the last surviving trustee comes to his adminis-
trator, 344.

duties of administrators in case of trust property coming to them, 144.

liability of coadministrators for each other's acts, 421, 526.

administrators with the will annexed, 300.

what is a sufficient, in an answer to justify an order of payment into

court, 827.
of trust, by answer in chancery, 84.

INDEX. 573


bars a wife's right to a settlement out of her life-estate, 634.

purchase in the name of wife or child presumed to be an, 143.
by father in his own and his child's name, 145, 146.
upon successive lives, 145, 146.
in the name of himself and wife, 144.
in name of a child or wife and a stranger, 144.
by grandparent in name of grandchild, 144.
by person in loco jyarentis in name of child, 144.
in name of an illegitimate child, 144.
in other cases, 144.
presumption of an advancement rebuts the presumption of a resulting

trust, 145.
the presumption of an advancement may be rebutted, 146, 147.
what may rebut such presumj)tion, 146, 148.
such advancement cannot prevail against creditors, 149.
whether subsequent creditors can defeat the advancement, 149.
whether trustees can make an advancement to an infant out of his

estate, 612, 615, 617, 618, 619.
not allowed if there is a limitation over, 619.
ADVANTAGE. See Pjjofit.

trustee can derive no advantage or profit from his office, 128, 129,

196, 209, 427-4:52, 433-437, 471.
all the power and influence of trustee must be used for the advantage

of the estate, 427.
trustee cannot buy up debts, 428.

where trustee is an attorney, banker, broker, partner, or other busi-
ness man, 429-432.
if trustee commits a breach of trust, it is immaterial that he gains no

profit by it, 847.
where cestui que trust dies without heirs, 434-437.

trustee cannot set up a title or claim adverse to his cestui que trust,

433, 863, 864.
if he has an adverse claim, he should resign, 863.
qualifications of the rule, 864.

by trustees for sale, 782.
under licenses of sale by courts, 782.

of counsel, elfect of, 901 , 927.
of court, riixht of trustee to, 928.
how obtained, 928.

574 INDEX.

AGENT. See Resulting Trust, 127, 129, 135.

parol proof cannot prove a resulting trust if agent uses his own money
in purchase of property, 135.

where agent convicted of perjury, 135.

fraud of asicnt affects the principal, 171, 180.

contracts hetween principal and agent, 206.

must be free from suspicion, 206.

notice to, affects principal, 222, 223, 259.

agent of trustee is accountable only to his principal, 246, 813.

but he may make himself trustee de son tort and accountable to cestui
que trust, 246, 813, 907.

when may sue in his own name, 874.

tenant for life as agent of trustees, 775.

how trustees for sale may act by agents, 775, 779.

the necessity that justifies the employment of agents by trustees, 404.

trustees need not take security from agents, 404.

the employment of an agent not a delegation of the trust, 409.

husband and wife may be agents for each other, 678.

where one fraudulently professes to act as agent for another, 172.

accountable for all money made from the agency, 430.

trustees responsible for losses by criminal acts of their agents, 441.

for valuable consideration may be enforced as a contract, if not good
as a trust, 95.

an agreement without consideration to make a declaration of trust not
good, 96.

to sell creates implied trust, 112, 122, 231, 342.

to settle lands creates implied trust, 122.

voluntary agreement. See Voluntary Trust ; Voluntary Set-
ALIEN. See Naturalization.

may create a trust, 36.

to what extent he can be a trustee of real estate, 56.

whether he can take by devise or not, 56.

cannot plead alienage to defeat a trust, 56.

how far, may be cestui que trust, 64.
ALIENATION. See Anticipation.

of an equitable estate cannot be forbidden under the form of a trust,
386, 671.

except in trusts for married women, 387, 670.

estates may be limited over upon alienation or bankruptcy, 388, 555.

such limitations are valid, 388, 555.

in such case the cestui que trust loses the property, 388, 555.

what is and what is not an alienation under such limitations, 388.

INDEX. 675

ALIENATION, — continued.

how trusts may be made inalienable, 118, 386 a, 38G b, 555.

what allegations should "he made in bills for diirerent purposes, 890.

trustees will be allowed all their travelling expenses, 910.

and fees for legal advice, 910.

all expenses for litigation properly incurred, 910.

for all salaries paid to necessary assistants, 912.

for all losses by theft, inevitable accidents, and other calamities, if

they use due care, 914.
for all disbursements for the good of the estate, 912, 915.
or for the support and protection of the cestui que trust, 915.
for costs of suits, 910.
and for time, trouble, and skill, 918 n.
practice in England as to allowances for time and trouble, 432, 904,

906, 916.
the English rule not adopted in the United States, 916-918.
■what allowances will be made in the United States for time, trouble,

and skill, 918.
such allowance usually made by a commission, 918 n.
the rate of such commission in the several States, 918 n.
how such commissions are computed, 918, 919.
to entitle a trustee to an allowance for his expenses he should keep an

account of them, 911.
allowances where a fund is created for their payment, 908.
allowances for expenses a lien upon the estate, 907.
if the estate insufficient, cesttii que tnist may be liable, 909.

when trustees should convert, 449, 547.
whether may l)e apportioned, 556.

effect of, in respect to the statute of frauds, 81.
the entire answer must be read, 85.

what an answer must contain to protect a boiiajide purchaser, 219.
disclaimer of trust may be made by, 271.
how a married woman may make, 654, 889.
cotrustees ousrht to join in, 888.
when they may sever in, 888.
costs of answer, 898-900.
ANTICIPATION. See Aliknation; Perpetuities.

in trusts for married women may be restrained, .'587, 646, 670.
what form of words will amount to a restraint upon, 670.
and what not. 671.
whether restrained or not, a matter of intention, 670.

576 INDEX.

ANTICIPATION, — continued.

restraint upon, applies to both real and personal estates, 671.

but the estates are subject to paramount equities, 671.

restraint upon, continues only during coverture, 671.

restraint upon, is ambulatory, 671.

effect of restraint upon, 671.

if a trustee appeals from the decree of a court having jurisdiction, he
may be compelled to pay costs, 928.

appeal by other parties, 928.
APPENDANT POWERS, 503, 765. See Powers.

prima facie, purchaser must see to, 790.

reasons of the rule, 790.

circumstances that control the rule, 791-795.

controlled by the terms of the trust, 791.
by the words of a power, 792.
by an implied intention, 793, 794, 799.
by a direction to pay debts generally, 795, 797.

the intention is implied at the date of the instrument, 801.

in case of charges upon an estate, who can sell and who can sign
receipts, and who must see to the, 802-805.

purchaser need not see to the application of the purchase-money of
personal estate sold by executors or administrators, 809-814.

in case of fraud or collusion, 809-814.

purchasers under assignments for creditors need not see to the appli-
cation of the purchase-money, 598.

considerations that govern the court in appointing trustees, 39, 277.

proceedings for, in court, 282-293.

who may originate proceedings, 282.

who should have notice, 282.

when all parties are sui juris, 283.

when guardians of minors should be appointed, 282.

when appointment is completed, 284.

what conveyances and orders are necessary to complete, 284.

form of a power of, 288 n.

importance of a power of, 288.

power of appointment cannot be delegated, 287.

power of, must be strictly followed, 288.

when power of, may be exercised, 288-293.

by whom power of, may be exercised, 294—297.

what number should be appointed, 275, 286.

when suit is ponding, 292.

regularity of appointment will not be inquired into collaterally, 275.

INDEX. 577


appointment stands until reversed, 275.

of income, rents, annuities, interest, dividends, &c., 556.

of purchase-money, 773.

of income upon a sale for investment, 554.

trustees may apportion their duties, but cannot delegate them, 408,

when a tenant for life is entitled to a proportion of the proceeds of a
sale of an estate upon which he has made permanent repairs, 653.

of legacy by executor or trustee without suit, 480.
ARBITRARY PO\yERS, 506. See Powers.

trustees must not allow rent to be in arrears, 527.

second tenant for life not obliged to pay arrears of interest, 554.

arrears of income of a married woman's separate property belong to

her or go with the principal, 31, 664.
but arrears of pin-money go to husband, 32, 664.
when trustees are liable for arrears of rent, 527.
if tenant for life is insolvent, trustee may release, 528.
arrears may be assigned, although there is a provision against antici-
pation, 388.
ARTICLES, MARRIAGE. See Executory Trusts.

assets not marshalled in favor of charities, 740.

as to marshalling assets for payment of debts in trusts under a will,

as to marshalling assets for payment of legacies, 573.
personal assets must be first applied to the payment of debts, 571.

whether the word assigns in a limitation enables an assignee or devi-
see to execute a trust, 294, 340.
whether assigns can execute powers or not, 294, 494, 495, 503, 504.

of a bankrupt cannot purchase the estate, 209.

bound by the trust, 345, 346.
whether the assignees of a tenant for life take any thing, and what,

in trust for creditors, 585-602.

a trust estate does not pass under general words of, 336, 345.

cestui qne trust who has made an assignment of his interest need not

be made a party, 882.
whether an assignment is complete without notice, 438.
VOL. II. 37

578 INDEX.

ASSIGNMENT, — continued.

general assignment by one partner •will not pass partnership assets,

a general assignment by husband will not pass a wife's choses in
action, 641.
trustees of, 524.
duties of trustees of, 524, 525.

contracts between attorney and client, 202, 203.

rules respecting, 202, 203.

may receive gifts by will from client, 202.

all dealings between attorney and client will be carefully investigated,

202, 205.
clerks of attorneys labor under the same disabilities, 203.
attorney who is trustee cannot charge for professional services, 429,

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