1839.-Greenwood v. Wakeford.

cessarily prolix, in stating the descriptions as well as the names of the parties, and otherwise ;[1] but considering it not to be impertinent to state the names of the parties, and applying the rule laid down in Wagstaff v. Bryan, I am of opinion that all these exceptions must be overruled.

1839: June 28, 29.

*GEENWOOD v. WAKEFORD.

Exceptions overruled.(a)

[*576]

The trustee of a marriage settlement concurred in a breach of trust, by lending the fund to the husband on a security not warranted by the settlement: Held, that the representatives of such trustee could maintain a bill against the husband and the other cestuis que trust, for the restitution of the fund.

Trustees are not entitled, as against the trust estate, capriciously to refuse to continue; but if they find the trust estate involved in complicated questions not in contemplation when they undertook the trust, they have a right to come to this court to be relieved from it.

Devise by testator "of all the lands and hereditaments vested in him as trustee or mortgage in fee," held to pass trust estates vested in the testator, but not in fee.

By the settlement made on the marriage of the defendants, Mr. and Mrs. Wakeford, some freeholds and money in the funds were settled upon Mrs. Wakeford for life, with remainder to Mr. Wakelord for life, with remainder to the children of the marriage; and the settlement contained a power for the trustees, with the direction in writing of Mr. and Mrs Wakeford, to lend the trust moneys to Mr. Wakeford, on the security of his bond alone.

The limitations of the freehold property were as follows; it was granted and released by the husband to the trustees, their heirs and assigns, to the use of the husband and his heirs until the solemnization of the intended marriage; and after the solemnization thereof, to the use of the said trustees their heirs and assigns during the life of the intended wife, upon trust to re

[1] "The safer check against abuse in length is in costs;" Leach, V. C., Lowe v. Williams, 2 Sim & Stu. 577. 10 Sim. 217, n. 1.

(a) As to what amounts to impertinence, see Pr. Reg. (Wyatt,) 383; Gilb. For. Rom. 209; Fenhoulet v. Passavant, 2 Ves. Sen. 23; Alsager v. Johnson, 4 Ves. 217; Coffin v. Cooper, 6 6 Ves. 514; Lord St. John v. Lady St. John, 11 Ves. 526; Norway v. Rowe, 1 Mer. 347; French v. Jacko. 1 Mer. 357, n.; Seeley v. Boehm, 2 Mad. 176; Beaumont v. Beaumont, 5 Mad. 51; The Earl of Portsmouth v. Fellows, 5 Mad. 450; Sluck v. Evans, 7 Price, 278, n.; Mc Morris v. Elliot, 8 Pri. 674; Parker v. Fairlie, 1 S. & S. 295; [S. C. Turn. & Russ. 362 ;] Lowe v Williams, 2 S. & S. 574; Del Pont v. De Tastet, 1 Turn. & R. 486; Bally v. Williams, 1 M'Clel. & Y. 334; Corbet v. Tottenham, 1 Ball & B. 59; Gompertz v. Best, 1 Y. & Coll. 114; Wagstaff v. Bryan, 1 Russ. & M. 28; Anon. 1 Myl. & Cr. 78; and see Beames' Orders, 69, 165; [1 Russ. & M. 30, n. 1, 31, n. 1; 1 Sim. & Stu. 301, n. 1; 2 Sim. & Stu. 577, n. 1; Devaynes v. Morris, 1 Myl. & Cr. 213; Ellice v. Goodson, 3 Myl. & Cr. 659: Woods v. Morrell, 1 Johus. Ch. Rep 103, 106; Sloan v. Little, 3 Paige, 115; Powell v. Kane, 5 Paige, 265; Ex parte Palmer, 4 Russ., 188; Woods v. Woods, 10 Sim. 197, 217, n. 1; Langley v. Fisher, id. 345, 348, n. 1; Attorney General v. Foster, 2 Hare, 89, 92.]

1838.-Greenwood v. Wakeford.

'ceive the rents and pay the same to her for her separate use; with remainder to the use of the husband for life; with remainder to the use of the same trustees during the life of the husband, in trust to preserve contingent remainders; with remainder to the use of the children of the marriage, with certain limitations over.

The trustees lent a part of the trust moneys to Mr. Wakeford on [*577] his promissory note, and without obtaining *the consent in writing required by the terms of the settlement. The trustees afterwards died: John Bowle was the survivor of them.

John Bowle, the surviving trustee, by his will, appointed the plaintiffs his executors; and by a codicil, after declaring that the devise in the said will contained, of the residue or remainder of his real estate was not intended to include any estate vested in him as a trustee or mortgagee in fee, the testator gave and devised unto the plaintiffs, their heirs and assigns, "all the lands and hereditaments vested in him as trustee or mortgagee in fee."

On the death of the surviving trustee, the trust money was still in the hands of the defendant, Mr. Wakeford; several irregularities existed as to the trust estate, and the settlement contained no power to appoint new trustees applicable to the existing state of circumstances. This bill was filed by the executors and devisees of the will of the surviving trustee, John Bowle, to have the trust fund in the hands of Mr. Wakeford restored, for the correction of the irregularities existing as to the trust estate, and for the appointment of new trustees.

Mr. Pemberton and Mr. Bird, for the plaintiffs, contended, that the plaintiffs were justified by the state of the trust estate in coming to the court; that the estate of the plaintiffs' testator was subject to liability; and that it was impossible to administer that estate, until that liability had been disposed of.

Mr. Kindersley and Mr. Willcock for Mr. Wakeford, contended, that the plaintiffs had no equity, estate or interest to entitle them to support this bill;

that the testator having concurred in the breach of trust, was equally [*578] liable with the defendant, Mr. Wakeford, and, *therefore, that it was

not competent for him in his lifetime, and it was not competent for his representatives now, to apply to this court to be relieved from the consequence of his breach of trust. (a) [THE MASTER OF THE ROLLS :-Can there be any doubt that if two persons concur in a breach of trust, and one alone derive the profit, the other has a right to relief against him?] The proper remedy in this case would be on the security which the plaintiffs' testator has taken from the defendant, namely, an action to recover on the promissory note; the plaintiffs had no right to come into equity, making the cestuis que trust parties.

It is attempted to sustain this bill, on the ground that it was necessary for the appointment of new trustees. If the plaintiffs are trustees, they have

(a) See Jacob v. Lucas, ante, 439.

1839.-Greenwood v. Wakeford.

no right to relieve themselves from their duties at the expense of the estate, for they might, on the death of their testator, have repudiated the trusts and disclaimed the trust estate; if they are not trustees, they have no right, as strangers, to institute a suit for the appointment of new trustees. The codicil of the testator did not pass the trust estate to the plaintiffs.

Mr. Temple and Mr. Hinds, for Mrs. Wakeford and her daughter, concurred in the opposition to the plaintiffs' bill.

Mr. Whitmarsh, for the co-heiresses of the surviving trustee who had been made parties.

Mr. Pemberton in reply, cited Coventry v. Coventry ;(a) and see Howard v. Rhodes.(b)

THE MASTER OF THE ROLLS (after stating the settlement): [*579] Mr. John Bowle died on the 25th of April, 1836, and the present plaintiffs becoming his representatives, had the duties and the responsibilities of their testator cast upon them. Application was made to them by Mr. Wakeford, or some member of his family, to appoint new trustees; this application necessarily induced an inquiry respecting the trust, and the consequence of that inquiry was, to find that there was nothing relating to the trust in the condition in which it ought to have been, pursuant to the deeds by which the trust was created; the consequence also was, to find that there had been various dealings with the trust property between the trustees and Mr. Wakeford, the tenant for life. It is quite unnecessary to go into a detail of the various circumstances that have happened; it is sufficient to say the trust property was very much altered in condition, and that the alteration had been made in a manner inconsistent with the trusts. From this situation of things these parties found that the estate of their testator was necessarily subject to very great responsibility: referring for instance to the one case as to the stock, as to which there was a power of advancing money to the husband upon his bond, with the consent in writing of his wife: the stock it appears had been sold out, and the produce had been advanced to the husband, without any consent in writing of the wife, and without the bond. The state of the family was, that there was one child, an infant, and the legal possibility of future issue of the marriage. The stock having been sold out for the purpose of the produce being advanced to the husband in a manner not warranted by the settlement, this infant had, beyond all doubt, a right to insist that a breach of trust had been committed, and to require the stock to be replaced. The representatives of the surviving trustee, find- [*580] ing themselves in this situation, were naturally desirous of relieving

the estate of their testator from the responsibility which they found it thus subjected to. There was a clear demand arising from a breach of trust, in which their testator, it is true, had concurred, but in which he had concurred for the use and convenience of Mr. Wakeford, the husband. I own I am

(a) 1 Keen, 758.

(b) 1 Keen, 581.

VOL. I.

45

1839.-Greenwood v. Wakeford.

rather surprised to find it alleged, even in argument, that persons placed in the situation of these plaintiffs, are not entitled to apply to this court for relief; at any moment, a bill might have been filed against them by the wife or daughter by their next friends, calling on them, as representing the estate of the testator, to replace that which had been lent to Mr. Wakeford, the husband; and I conceive it to be clear, that they had a right to proceed against the husband, for the purpose of having this matter set right. Even if the bill had been filed by the wife and daughter, and the husband together with the estate of the deceased trustee had been called on to answer the breach of trust, the estate of the deceased trustee would have had a right to indemnity from the husband. The plaintiffs finding this and the other irregularities which have been stated,-finding the trust in such a situation that it was impossible for them to clear the estate of their testator from responsibility without the assistance of this court, accordingly file their bill, stating these circumstances, and desiring to have the stock replaced; and on their motion the money is brought into court. At the time the bill was filed, the daughter was an infant; she has now come of age, and can exercise her own discretion on the subject; and the only persons now interested in the property, are the husband, the wife, and the daughter, who has now attained her age

of twenty-one. Though there is a possibility of future issue in con[*581] templation of law, yet Mrs. Wakeford is now of such *an age as to

make it appear satisfactorily enough that there will be no future issue, and that no further interest can arise. The wife and daughter now appear by their counsel, and do not desire these funds to be restored, the consequence of which is, that the plaintiffs are, by that act, relieved from the responsibility to which they were liable; this renders it unnecessary for them to prosecute the suit further than for the purpose of being relieved from future responsibility. In respect of the personal estate, the fund, having been brought into court, is safe, and nothing is therefore asked with respect to it. In respect of the real estate the plaintiff's still ask relief; the security for the mortgage money is vested in them, and they desire to be relieved from it; what is wanted, is somebody to whom they can safely convey that legal estate; and they have a right to be relieved from further responsibility in this respect.

With respect to the devised estates, it appears to me on the construction of the codicil, that the devisees take the legal estate :[1] they are, therefore, entitled to have somebody to whom they can safely convey it.

Then comes the question as to the costs of the suit. The opinion I entertain on this subject is this, and I have often stated it, that if a trustee undertakes the performance of a trust, he is not entitled, as against the estate he

[1] This construction seems to proceed upon the principle, that where there are inconsistent clauses in a will, the latter shall govern; as to which see Parks v. Parks, 9 Paige, 110. 10 Sim. 601, n. 1.

1839.-Oliver v. Burt.

has undertaken to protect, to exercise a mere caprice, and without any assignable reason say that he will no longer continue a trustee. On the other hand, if the trustee finds the trust estate involved in intricate and complicated questions, which were not and could not have been in contemplation at the time when the trust was undertaken, he has, in consequence of that change of circumstances, a right to come to the court to be relieved; and the court will judge whether the *circumstances were such as to make it [*582] fair for him to decline acting longer upon his own responsibility.[1] There is certainly some difference between the person who has undertaken the trust and the representatives of such person; but in this case I am of opinion, that even if Mr. John Bowle had come here and had desired to be relieved from this trust, in the situation into which it had got by his acts or concurrence, but for the benefit and accommodation of Mr. Wakeford, he would have been entitled to the favorable consideration of the court in this respect. I have, therefore, no doubt about the costs in this suit. It is not fit that the trustee should have the trust estate involved in complication and difficulty for the accommodation of one of the cestuis que trust, and then not to be able to get relieved from it without paying the whole costs of the suit to which the same cestui que trust is a party resisting the relief. The bill must be dismissed with costs against the co-heiresses of the testator, to whom the legal estate would have descended if it had not passed by the devise in the codicil. I am of opinion it did pass by the codicil, but I think that it was by no means a question perfectly clear; and I therefore think it was right for the plaintiffs to bring the co-heiresses here to have it settled. The plaintiffs are entitled to have their costs, either against the fund or against the husband.(a)[2]

*OLIVER V. BURT.

[*583]

1839; June 24.

The proper mode of obtaining money out of court is by petition: but the rights of the parties having been ascertained by arbitration, and no decree having been made, the court in this case ordered payment of money out of court upon motion.

In this case a sum of money had been paid into court, and the matters in difference having been referred to arbitration, the arbitrator made his award determining the rights to the money.

There had been no decree in the cause, and

(a) By arrangement, the costs of all parties were ordered to be paid out of the trust fund.

[1] As to the resignation of trustees, see Rev. Stat. N. Y. vol. 1, (2d ed.) p. 724, § 69. 1 Keen, 760, n. 1.

[2] Vide Fyler v. Fyler, 3 Beav. 550.