Jairus Ware Perry.

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

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where husband and wife and all their issue must be joined, 874, 880,

when an agent may sue alone, 874.
who must be parties to suits between cestuis que trust and the trustees,

when third persons must be joined, 877.
where one trustee may be sued alone, 879.

where intermediate trustees or assignees need not be joined, 878.
all the cestuis que trust must be parties, 881.
where cestui que trust has assigned his share, 882.
where cestui que trust is entitled to a distinct and aliquot share,

suits among cotrustees for breach of trust may be maintained with-
out joining cestuis que trust, 884.
but if cestuis que trust or some of them procured the breach, they

must be joined, 884.
where parties are numerous, a few may sue in behalf of the whole

number, 885.
practice in that respect, 885.
when husband and wife must join, 889.
where husband must be made defendant, 889.
trustees should join in their answer, 888.
when they may separate in their answer, 888.
trustees and cestiiis que trust should join in answers, 887.
in what order parties should be joined as plaintiffs or defendants,

887, 889.
representatives of deceased trustees need not be made parties, 877.
who may be, 28-66.

power to sell does not authorize partition, 769.

INDEX. 643


cannot renew a lease in his own name, 196.

creditors of a partner cannot receive partnership property in pay-
ment, 814.

when a purchase by, with partnership funds creates a resulting trust,

partnership assignment for creditors, 599.

no such thing, 266.

may be conveyed in trust, 68.

what payment must be made to create a resulting trust, 134.

trusts for payment of debts under a will, 557-567.

trusts for payment of debts under an assignment for creditors, 585-

order of payment under an assignment, 602.

to infjint, liow made, 624, 930.

to married woman, 930.

to partnership, 930.

to trustees, 930.

trustees always justified in bringing money into court, 630.

when may be ordered, 824.

when ordered to be made forthwith, 825.

and when in a reasonable time, 825.

what title the plaintiff must show for, 825.

what misconduct must be shown, 472, 825,

what allegation must be made in a bill to entitle the plaintiff to an
order for, 827.

upon what admissions in the answer it may be ordereil, 827.

whether it must be made with interest, 827.

stops interest, 468.

whether statute of uses executes trust to, 305, 808.

wliether a trust is perfected- or not, a question of fact, 99.

whetiier it must be converted or not, 450, 451, 547, 548..

whether a resulting trust in, 130.

where there is a specific gift of it, 547.

644 INDEX.


conviction of an agent of perjuring in denying his agency does not
authorize the court to establish a resulting trust upon parol evi-
dence, 135.

where the words will create an estate which the statute of uses exe-
cutes or not, 306, 307.

description and definition of, 377.

limitations by Avay of executory devise, 378.

of shifting and springing uses, 378.

when they must vest or be void, 378.

equitable estates subject to the same rule, 378.

future interests are protected, 378.

but they are not allowed to transcend certain limits, 378.

the origin and development of the rule against perpetuities, 379.

extent, limitation, and application of the rule, 380.

the question upon the rule is not whether the estate actually vests
within the time, but whether it may not, 381.

an equitable estate that may not vest within the time is void, 383.

instances of the application of the rule to trusts, 383, 384.

trusts for public or charitable uses not within the rule, 384.

a trust to raise a sura of money limited contrary to the rule, 385.

contingent remainders in equitable estates do not follow the rule,

alienation of equitable estates cannot be restrained, 386.

restraints upon alienation illegal, 386, 555.

exception to the rule, case of settlements upon married women,

but property may be limited to a person until bankruptcy or aliena-
tion, and then over, 388, 555.

it may be limited for a particular purpose, 386 a, 386 h.

what will be an alienation, 388.

a limitation of personal property upon the same trusts as real estate
in strict settlement to such tenant in tail as first attains twenty-one,
is void, 389.

how such limitation may be good, 389.

an executory trust intended to create a perpetuity is void, 390.

but if such is not the intention, but the illegality is incidental, the
trust win be carried into effect cy pres, 376, 390.

alteration of the rule against perpetuities in the several States, 391,

trustees cannot extend private trusts by new limitations beyond the
time allowed for a perpetuity, 384.

INDEX. 645

PERPETUITY, — continued.

and the settlor cannot give them power to limit the estate to new

uses, beyond the time of a perpetuity, 384.
■whether a perpetuity can be created under a power of sale, 385,

See Powers.

trustee cannot invest in, 453.

trust in, may be shoAvn by parol, 86.
whether a trust results in, 130.

trustees may be removed and appointed upon, 280, 282.
when the court will order maintenance upon, G17.
when a settlement upon wile may be made upon, 629.

no trust results to wife from purchase in the nanie of husband with

savings from wife's pin-money or allowance, 127.
savings out of, belong to husband, 66-4.

in charity suits, 746.

bill must contain a clear allegation of a resulting trust, 137, 226.
and all the facts from which a resulting trust arises, 137, 226.
■what a purchaser must answer to repel a resulting trust, 216, 219.
what allegations should be made in diHerent suits against trustees,

if a bill proceeds upon the ground of default in the trustees, specific
acts must be alleged, 275, 800.

resulting trust cannot be set up against, 131.

where relief is refused from lapse of time as contrary to the policy of
the law, 869-871.
POOR OF A PARISH. See Cuauitaule Uses.
POOR RELATIONS, 255, 256, 699.

See Relations.

character of portions and of trusts to raise or secure them, 577.
whether jjortions can be raised upon tlie happening of a particular
event by a sale or mortgage during the lifetime of the parents or
tenants for life, 578-5S0.
is generally a question of intention, 578.

what expressions will govern the construction in such cases, 579.
how settlements are drawn, 580.

646 INDEX.


when trustees to raise portions will have a power of sale, or of mort-
gaging, although not given in terms, 581.
where a sale may be made, although there is a direction to raise the

portion out of the rents and profits, 581.
how trustees may raise portions in various cases, 581.
whether portions must be raised in gross when the first one is paya-
ble, or whether they are to be raised severally as each becomes
payable, 582, 772.
when the trustees neglect to raise portions as directed, 583.
when interest is payable upon portions, 58-1.

when possession is notice of an equitable interest, 223, 239.

who entitled to the possession of a trust estate, 329.

when the court will imply that trustees are to have the possession, and

when the cestui que trust, 329.
of personal estate, 330, 331.

duty of trustees as to taking possession of the trust property, 438-440.
when they must give notice of an assignment of clioses in action, 438.
trustees cannot claim an adverse, 433, 863, 864.

may be conveyed in trust, 68.

will not excuse laches or delay, 230.
weakens the presumption of a release, 867.
power in trust, 334.
POWERS, 248, 258.

general description of, and division into dist^retionary and imperative

powers, 248.
mere powers are discretionary, 248.
imperative powers are trusts, 248, 473, 503.
if the trustee neglects to execute imperative powers, the court will

execute them, 248, 249, 473, 503.
imperative powers created for the benefit of others do not fail by the

neglect of the trustees, 248, 249, 503.
illustrations of this rule, 250, 251.
where a direct gift is made to one subject to some discretion in

another, it is a trust, 250, 251.
cases where powers are not trusts, 252, 253.
powers which are trusts must be executed as they are given, or they

will remain to be executed by the court, 251, 254.
how the court will execute such power or trust, 255.
where the power is to divide among poor relations or the most neces-
sitous of the family, 255.

INDEX. 647

POWERS, — continued.

how a power of selection is to be exercised, 256.

Low a power of distribution must be exercised, 256.

whetlier distribution will be made jyer stirpes or per capita, 257.

whether amonfr those livins; at testator's death, or those living at the
time the distribution is to be made, 258.

general divisions of discretionary powers into general and special
powers, 473.

general powers belong to the office of trustee, 473.

how powers are executed if the administration of the trust is before
the court by suit, 474.

power of the trustee when he is to permit the cestui que trust to occupy
the estate, 475.

a trustee's powers are measured by his duties, 475.

the duty and power must be strictly performed, 475.

where a trustee may exercise a discretionary power, though none is
given to him, 476.

considerations which govern such cases, 476.

where trustees may repair, 477, 526, 540, 552.

the extent to which they can make repairs, 477.

power of repairing when there is an equitable tenant for life, 477.

power of opposing legislation detrimental to the property under their
protection, 478.

cannot expend the fund in procuring legislation, 478.

power of executors may close up tlie establishment of the testator, 479.

power to collect or appropriate a legacy without suit, 480.

power to expend money for the protection of the cestui que trust, 480.

power to waive the general statute of limitations, 481.

no power to extend the special statute of limitations for the protec-
tion of executors, 481.

power to compromise or compound debts and claims, 482.

care in the exercise of such power, 482.

when they have power to release an equity of redemption, 483.

no power to release a security for the convenience of a third person
with no advantage to tlie estate, 483.

have a general power of leasing lands, 484, 608.

what kind of leases they can make, 484, 608.

when the cestui que trust is entitled to tlie possession, thev cannot
lease, 484.

trustees may reimburse themselves for money advanced for the bene-
fit of the estate or the cestui que trust, 485.

powers of the trustees of a trading company, 486.

power of insuring, 487.

division of special powers into legal powers and equitable powers, 488.

how equitable powers operate, 488.

6-18 INDEX.

POWERS, — continued.

legal powers are recognized at law, 488.

equitable powers may be appendant to an interest or collateral,

a power is collateral when the person to whom it is given has no

interest, 489.
married women may exercise such a power, 489.
and infants, 489.

special powers divided into strict and directory, 490.
how strict powers must be executed, 490.
directory powers are monitory, and may be executed with some

latitude, 490.
illustrations of strict and monitory powers, 490.
by whom powers may be exercised, 491, 505.
distinction between the gift of an estate to trustees and their heirs,

and the gift of a naked power, 491.
estates may be granted by the donees, or devised by the survivor if

it is a joint tenancy, 491.
but a naked power cannot be assigned by both or devised by the sur-
vivor, 491.
when a naked power of sale was given to three and their heirs and

one died, 492.
when a power is limited to " executors " or " sons-in-law," what sur-
vivors may execute it, 493.
a power annexed to the office may be exercised by survivor or sur-
vivors, 273, 493.
a power given to several cannot be exercised by a part of the number

if the others are qualified to act, 493.
when powers are to be exercised with the consent of others or third

persons, 493.
a power given to trustees and "their heirs" without the word

" assigns " cannot be exercised by assignees ; nor by devisees, as a

devise is an assignment, 494.
but if " assigns " is inserted, assignees and devisees may execute the

power, 494, 495.
where a power of sale cannot be exercised by assignees, though the

word assigns is used In the limitation, 495.
who may exercise powers of sale in a mortgage, 495, 499.
where the powers conferred are matters of special confidence in the

trustees they cannot be exercised by persons not embraced in the

limitation of them, 273, 496.
where powers are given to four trustees or the survivors cannot be

exercised by less than two, 497.
but if the power is to be exercised by the survivor, it may be executed

by the last one, 497.

INDEX. 649

POWERS, — conlinued.

a power of sale can be exercised only by the person to whom it is
given, 499.

if given to two without words of survivorship, it cannot be exercised
by one upon the death, or refusal to act of one, 499.

but a power of sale given to a class or the office of trustee with or
without the mention of the names, will continue, so long as there
are more than one, 499.

in the United States such power may be exercised by a single sur-
vivor, 499.

trustees are joint-tenants, and if the title is in them the survivor takes
it and has power to convey, 499.

statutes of the various States, 499.

construction of the statutes, 499.

questions upon the statutes, 499.

powers given to executors cannot generally be exercised by adminis-
trators with the will annexed, unless the will authorizes it, 500.

statutes upon the subject, 500.

husbands cannot execute powers given to their wives, 500.

when a power of sale is created, but not limited to any one, the per-
son who is to receive and administer the proceeds, may execute the
power, 501.

who may execute such power in other cases, 501.

where it cannot be executed at all, 501.

where a trustee refuses to accept, the acting trustees may exercise
the powers of the office, 502.

when new trustees may exercise the powers of the old trustees, and
when not, 503.

when an assignment of the estate does not transfer the power, it may
destroy the right of the original trustee to exercise it, 504.

illustrations, 504.

in charities one may have the estate, and another exercise a power,

powers annexed to the trust survive with the trust, 505.

but mere jjcrsonal powers not connected with the trust, do not sur-
vive, 505.

but powers given to trustees by name will go to the survivor, if he
takes the estate coupled with the duty of performing the trusts,

at what time powers can be exercised, 498.

must be during the continuance of the trust, 49S.

trustees cannot prolong their powers by negligence, 498.

whether powers of sale are void lor remoteness. 506.

whether they may tend to a perpetuity, oOG.

powers purely discretionary, 507.

650 INDEX.

POWERS, — coniinved.
what are, 507.

when the discretion is iniph'ed, 507.

a discretionary power to renew leases is construed to be an impera-
tive power, 532.
discretionary powers divided into four classes, 508.

(1) where trustees have power to make or withhold a gift or ap-
pointment at their discretion, 50r.

such discretion cannot be controlled by courts, 508.
unless it is used corruptly, 508.

the discretion will be construed into a trust to be executed if possi-
ble, 508.

(2) where an interest vests in the cestui que trust, and the trus-
tees have a discretion as to selection, 248, 473, 508.

these powers are trusts which the court will exercise or execute if the
trustees neglect, 248, 249, 473, 503, 508.

(3) when the trustees have a discretion as to some ministerial act
to be performed for the benefit of the estate, 508.

these powers may be exercised by the court upon inquiry into the
facts, 508.

courts will not allow them to be exercised by the trustee in an arbi-
trary manner, 608.

(4) when the discretion is a matter of personal judgment upon a
personal matter, 508.

trustees alone can exercise such discretion, 508.

courts cannot control such discretion, 508.

but trustees must exercise discretion in a reasonable manner, 508.

powers to vary securities are discretionary, 509.

powers to vary securities confer the power to give receipts for pur-
chase-money, 509.

how such powers must be exercised, 509.

where the power is imperative, courts can compel the execution of it,

whether courts can control the exercise of a discretionary power, 508-

courts may inquire into the motives of the exercise of such powers,

trustees cannot exercise or refuse to exercise discretionary powers
from fraudulent or improper motives, 511.

how courts may give relief in such eases, 511.

absolute, uncontrollable powers not favored, 511 a.

will control them where possible, 511 a.

courts may interfere by injunction, 511 a.

powers must be exercised most beneficially for cestui que trust, 511 a.

must be exercised for the end and purpose designed, 511 a.

INDEX. 651

POWERS, — continued.

cannot be exercised for the benefit of the donee of the power, 511 a.

nor of his fomily unless authorized, 511 a.

distinction between motive of the donee and the purpose of the

donor, 511 a.
how trusts and powers are to be executed, 511 a.
if execution of power fails, may be executed again, 511 a.
a second execution of a power upon the same ground will be set aside,

execution of powers discussed in Tophara v. Duke of Portland (31

Beav. 525 ; 1 De G. J. & S. 517 ; 1 H. L. Cas. 32 ; L. R. 5 Ch. 40,

49), 511a.
Library Co. of Philadelphia v. Williams (73 Penn. St. 249), 511 a.
powers must be executed in the exact manner pointed out, 511 6.
if no formalities pointed out, they must be executed in the usual man-
ner, 511 b.
if by writing, can be exercised in no other way, 511 b.
must be by deed if so required, oil b.
and under seal, 511 b.

if by will, cannot be executed by deed, 511 b.
the required number of witnesses must attest the execution, 511 b.
all notices required must be given, 511 b.
when donee of power must refer to it, in the instrument of execution,

when he need not, 511 c.
rules which govern on the subject, 511 c.
reasons of the rules, 511 c.
distinction between the execution of a power and a conveyance or

devise of the trust estate, 511 c.
how powers must be exercised when the trust is in the hands of the

court by a suit, 293, 474, 508, 511, 764.
personal powers, 512-519.

power to assent to the marriage of the cestui que trust, 512.
when such power is valid, and when void, 512-517.
how it may be given, 512-517.
construction of such powers, 512-517.
when such powers are exhausted, 514.
how such powers may be exercised, 517-519.
who may exercise such powers, 518.
what control courts have over such powers, 519.
powers to appoint new trustees, 287-297.
form of such power, 288.

when or upon what occasions such power may be exercised, 290-293.
where suit is already pending in court, 293.
who may be appointed, 297.

652 INDEX.

POWERS, — continued.

by whom power to appoint new trustees may be exercised, 294-296.

courts will not control the exercise of the power to appoint, 297.
PRACTICE. See Pleading.

as to joining parties, 873-889.

as to absent trustee, 878.

as to absent cestui que trust, 883.

■where a few may sue for many, 885.

who should join in answers. 886, 888, 889.

in what order parties should join as plaintiffs or defendants, 887.

■what allegations should be made against trustees, 890.
PRECATORY WORDS. See Implied Trusts.

■what are and what are not, 112, 113, 117, 119.

construction of, 112-116, 119.

in assignments for creditors, 586.

trustees may accept, 438.

arising from lapse of time, 259, 866-869.

parol evidence may sustain or rebut a, 150.

of the acceptance of a trust, 259-267.

of a surrender, 319-356.

of the regular exercise of powers, 782.
PRESUMPTIVE TRUST. See Resulting Trust.

where one fraudulently prevents a deed or will from being made, 181,

contracts with agent, 206.

notice to agent may be notice to principal, 222, 229.

■when suits may be in the name of, without joining cestuis que trust,

private books must be produced if the trust accounts are entered in
them, 821.

if suits are pending between trustee and cestui que trust., the cestui
que trust has no right to see the oiiinion of the trustee's counsel,

of trustees, 331.

who are in privity, 15, 346.

INDEX. 653

PRIVITY, — cnntinned.

all who take the estate from a trustee, except purchasers for value
without notice, and disseisors, take subject to the trust, 346.

effect of proljate of wills, 96, 182.

wills have no elFect before probate, 96, 182.

remedy in case of a mistake or fraud in the probate of wills, 182.

regulation of, in the various States, 182.

as to probate of wills lost or destroyed, 183.

equity no jurisdiction over, 182, 183.

all books in which the trust accounts are kept must be produced, 821.

all documents and opinions of counsel must be produced, 822.

trustee not compelled to produce until his relation is established,

and when there is litigation between trustee and cestui que trust, pri-
vate papers of the trustee cannot be inspected, 823.
PROFIT. See Advantage.

trustees can make no profit, 427, 428.

with trust funds all belong to cestui que trust, 427.

how the account of, is made up, 430.

partners must account for profits of trade, 481.

a stranger receiving the fund not accountable for profits, 431.

all standing in a fiduciary relation are accountable for, 432, 838.

evidence of debt, but no security, 453.

trustees cannot invest in, 453.

of debts against a bankrupt, must be by trustee, 332, 412,

where cestui que trust may be required to concur, 332.

what will be inserted in executory trusts as proper powers, 375.

whether powers of sale are proper powers, 717.

what may be the subject of a trust, 67-70.

hoAV far trusts can be enforced against property in a foreign jurisdic-
tion, 70-72.

of the trustee, 928.

of future estates, 378.

whether the acceptance of a trust, 262-264.

the acting of trustee by pro.xy is not a delegation of the trust, 409.

654 INDEX.

PUBLIC POLICY. See Policy op the Law.

when relief will be refused upon the ground of, 869, 870.
PUBLIC TRUST. See Charitable Uses.
PURCHASE. See Resulting Tkust.

from trustee with notice of the trust creates a constructive trust, 217-

vendor's lien for, 231-239.

who is a honajide, 217-219, 239, 828.

notice to a purchaser, what is, 222, 223.

when notice must be given, 221, 222, 828-830.

protection of jiurchaser, 219, 828.

what consideration is sufficient for his protection, 220.

constructive notice to, 223.

what is constructive notice to, 223.

must not commit a breach of trust to protect himself, 217, 218, 829.

what he must show in his answer, 219.

becomes a trustee for the vendors, for the purchase-money, 122, 231.

a purchaser in the name of another may show all the facts and cir-
cumstances, and his intention in making the purchase, to rebut a
resulting trust, 1-17.

purchaser in the name of another to defraud creditors, 149.

prima facie a purchaser of trust estates must see to the application
of purchase-money, 790.

how the rule may be controlled, 791-801.

an innocent purchaser cannot get in outstanding titles after notice,
221, 829.

purchaser of cliose in action is subject to all the equities and rights
between the parties, 831.

purchaser of cliose in action should give notice, 438.

purchaser bound by notice of doubtful equities, 833, 834.

Online LibraryJairus Ware PerryA treatise on the law of trusts and trustees (Volume 2) → online text (page 62 of 64)