TRCST AXD TRUSTEE. 



TRUST AND TRUSTEE. 



4 " 



hand* of the trustee, ha ought to take DO stop without the unction of 

 the court. (10 Voa. 104.) 



V. Of ullowances to trustees. 



Hi.* Mttled rule that a tnutee in not entitled to charge for hU time 

 and trouble in the management of the trust-estate, whether he be a 

 professional person or not ; and the rule appliei not only to trustee* 

 expressly nominated, but to all persons bearing a fiduciary character, 

 such u executors, mortgagees, receivers, and committeei of lunatics' 

 atatea. (10 Vea. 103.) Exception* to this rule have been admitted 

 in the caaea of trustee* for the ettate* of absentee* in the Went Indie* 

 and executor* in India ; but the rule against such allowances to trus- 

 tee* is only a general one in the absence of express directions by the 

 settlor to the contrary, and there is no objection to a trustee's receiving 

 remuneration for his services, or to his being allowed to make profes- 

 sional charges, if the intention of the settlor to that effect be clearly 

 expressed. (7 Yes. 480 ; 3 Beav. 338.) A trustee may even bargain 

 with his eahtii out trutt for an allowance, though bargains of this kind 

 are very narrowly watched by the court. Trustees not being allowed 

 to charge for their own trouble, may on proper occasions, and where 

 the business of the trust is troublesome or complicated, call in the 

 assistance of agents at the expense of the estate. 



A trustee, though not allowed to charge for his trouble, is entitled 

 to all his expenses out of pocket; sad even a specific remuneration 

 given by the settlor to the trustees is no reason for their not receiving 

 an allowance for expenses. (7 Ves. 480.) The expenses incurred by a 

 trustee in the management of the trust-estate are considered as a 

 charge upon the estate, to the satisfaction of which the trustee is 

 entitled before he can be compelled to convey. 



The general rule with respect to the costs of trustees incurred in 

 legal proceedings is, that they shall be allowed as between solicitor 

 and client, if there be a fund under the control of the court out of 

 which they may be paid. (1 Swanst. 201.) But this rule is subject 

 to numerous exceptions, depending upon the circumstances of the case, 

 and the propriety or otherwise of the conduct of the trustee, either in 

 the course of the suit itself or in the matters out of which it arose. A 

 trustee who disclaims by answer in chancery is entitled to costs a* 

 between party and party only. (2 M. ft K. 278.) 



VI. Of the relinquUkrnent of office by trustee*. 



A trustee may be discharged from his office by the consent of the 

 eatuit que triut, but for this purpose the consent'of all must be obtained, 

 however numerous they may be ; and if any of the eatuit que triut be 

 incompetent to consent, or be not yet in rue as in the case of a limita- 

 tion to unborn children, no complete discharge can be obtained. 

 A trustee may be discharged in virtue of a special clause to that 

 effect contained in the instrument under which he is trustee. A 

 proviso to this effect is usually introduced into settlement* combined 

 with a power either to the ceitui que Inut, or to the co-trustees, to 

 nominate a new trustee in the event of any of the number happening 

 to die, or being desirous of being discharged from, or refusing or 

 declining, or becoming incapable of acting in the trusts. The transfer 

 of the trust is not complete until the new trustee has been nominated 

 by the donee of the power, and a conveyance or assignment of the 

 property ha* been executed. Powers of appointing new trustee* are 

 strictly construed, and cannot be properly exercised except under the 

 precise circumstances contemplated in the power, and it U always con- 

 sidered that the original number of trustees ought to be maintained. 

 For this reason it would be improper to appoint one trustee to do the 

 duty of two retiring trustees (2 H. ft K. 682) ; and where there is a 

 direction that upon the trustees being reduced to a certain number 

 others should be nominated by the survivors, it has been determined 

 that they might supply vacancies before the numbers were so far 

 reduced, but that then they were compellable to do so. (5 Yes. 825.) 



Two recent acts, known as the " Trustee Relief Acts," have pro- 

 vided facilities for trustees wishing to discharge themselves from the 

 responsibility of administering funds which may have come into 

 their hand*. 



VII. Of the estate and rights of the corn* que trutt. 



1. As to what it consist* of. In cases of the simple trust the whole 

 rights of equitable ownership consist in the right of possession and the 

 right of disposition. 



The equitable owner has in general a right to the possession of the 

 estate, but where there are several parties) interested either contem- 

 poraneously or in succession, it is in the discretion of the court of 

 equity to determine whether possession ought to remain with the 

 trustee or be given up to the rat HI que trial. The right of possession 

 of the mini que triut is recognised in a court of equity only, for at law 

 the trustee U considered as the owner, and the eat a! que triut as tenant 

 at will only. The trustee as tenant of the legal estate may recover in 

 ejectment from his own crtttti que Inut, who has no defence to the 

 action at law, and is only entitled to apply for an injunction in equity. 

 (8 T. R. 122 ; 1 B. ft B. 445.) 



Upon the ground that the ceiiui que fruit is the beneficial owner of 

 the estate, he is entitled, either by the express language or by the 

 equitable construction of statutes, to various privileges connected with 

 real estate. Thus the 2 Hen. V. st. 2, c. S, and the subsequent statutes 

 relating to persons entitled to serve as jurors, have been construed 

 to apply to the crttvit que trutt, and not to the trustee. By 7 & 8 

 Will. III. c. 25, s. 7, the right of voting as a freeholder of a onty 



was conferred on the ratui qut trial, if in possession ; and by the 

 2 Will. IV. c. 45,*. 19, the eesfm que tnat of copyholds or of any 



land* whatever except freehold, of the required yearly value, is 

 entitled to vote at elections of members of parliament whether in pos- 

 session or not. 



The catui que tnat of chattels U also entitled to the use and pos- 

 session of them during the continuance of his interest ; and upon this 

 ground they do not, upon the bankruptcy of the tenant for life, fall 

 under the rules as to goods in the order and disposition of the bank- 

 rupt with the consent of the true owner. (19 Ves. 491.) 



A rrttui out tnat who is entitled to the whole equitable interest may, 

 in virtue of the jut ditpmundi, call upon the trustee for a conveyance 

 of the estate. But he has no such right when the trustee holds upon 

 trust for the benefit of others, or even when he is entitled to the 

 whole usufructuary interest, but the continuance of the estate in the 

 trustee is necessary to answer some ulterior purpose relating to the 

 trust, such as to preserve contingent remainders. (5 Had. 429.) 



In esses of special trust, the right of the rrttui que trutt is to have a 

 specific execution of the intention of the settlor to the extent of that 

 catui que truift interest. If there be but one catui que trutt, and ho 

 capable of consent, the specific execution of the trust may be departed 

 from ; and so where there are several ratuit que trutt, who all agree ; 

 but no variation can be made so as to affect the interest of any ctilui 

 que trial without his consent. 



2. Of the nature and properties of the estate of the catui qut trutt. 



Equitable interests may be assigned, and the assignee may, like the 

 original cettui que trutt, compel a conveyance from the trustee by bill 

 in equity, without making the assignor a party. (3 RUBS. 583.) 



Ptmti covert entitled to equitable interests in lands and equitable 

 tenants in tail, might, before the Fines and Recoveries Act (3 & 4 

 Will. IV. c. 74), have passed their equitable estates by those as- 

 surances, and may now do so under that act by the same modes of 

 assurance and with the same formalities a* If the estates were legal. 



The purchaser of an equitable interest should take care to inquire 

 of the trustee whether he has had notice of any prior incumbrance 

 upon the equity of the vendor, which will give the purchaser a remedy 

 against the trustee in case ot his misrepresentation (10 Ves. 470) ; and 

 the purchaser should also, upon the execution of the conveyance, give 

 notice to the trustee of his own equitable title, whereby he will 

 secure precedence of all prior incumbrances who have not given such 

 notice. (3 Russ. 30.) 



Equitable interests in property are transmissible by devise, and 

 require the same solemnities as legal interests. (1 Viet. c. 26, s. 3.) 

 Possession or receipt of the rente and profits of equitable estates is 

 considered in equity equivalent to seisin at law, and adverse posses- 

 sion of the one is attended with the same effect* on the title as 

 disseisin of the other. (2 J. ft W. 1, 153.) 



A trust of freeholds or copyholds is subject to the courtesy of 

 the husband, but was until lately exempt from dower and freebench : 

 now, however, by the 3 ft 4 Will. IV. c. 105, the title of dower attaches 

 upon equitable in the same manner as upon legal estates, though 

 subject in either case to be defeated by the alienation, devise, or other 

 declaration of intention on the part of the husband. 



The effect of marriage is the same upon equitable as upon legal 

 interest*, and therefore a husband may assign the trust of a term of 

 year* belonging to his wife, in the same manner that he may assign her 

 chattels real at law. (9 Yes. 99.) 



Judgment creditors have, by the Statute of Frauds, sec. 10, execu- 

 tion at law against the equitable freehold estate of a debtor in the 

 hands of his trustee, when the debtor has the whole beneficial interest ; 

 but if he have a partial interest only, or the estate be not freehold, the 

 judgment creditor has no execution at law, but he may in a court of 

 eqtu'ty obtain the same satisfaction out of the beneficial interest as he 

 would be entitled to at law out of a legal estate. (4 Had. 604.) 



The estate of the catui que tnat is governed as to descent by the 

 rules of the common law. 



Trusts of chattel interest* were always considered a* assets in equity, 

 but it was a question whether a trust of a freehold was assets in the 

 hands of the heir until the Statute of Frauds, by the 10th section of 

 which a trust in fee-simple was declared to be assets by descent, in tho 

 same manner as a legal estate. The enactment however applies to 

 simple trusts only, and not to special trusts or equities of redemption 

 (2 Atk. 293) ; but now, by the 3 ft 4 Wm. IV. c. 104, all a persons' 

 alale or interett in lands, tenements, or hereditaments, corporeal or 

 jncorporeol, or other real estate, whether " freehold, customaryhnl.l. .. r 

 copyhold " (which words apply equally to legal and equitable estates), 

 are made assets for the payment of debts as well by simple contract as 

 on specialty. Trusts of chattel interests will be legal assets in the 

 hands of the executor. (Hod. 858; 4 Ves. 541.) Simple trust* of 

 real estate are made legal asset* by the above-mentioned section of the 

 Statute of Frauds ; and it seems that complicated trusts and equities 

 of redemption, which are not within the statute, will be com-i 

 legal asset* as to specialty creditors by analogy to law. (2 'Ch. I: p.' 

 143.) It appears that under the 3 ft 4 Wm. IV. c. 104, real estates 

 are, with respect to simple contract debts, to be taken as equitable 

 asset*, but tnat the act does not alter the mode of administration of 

 trust* of chattels nor of equitable freehold interests, in so far as they 

 were asset* before the act 





