the trust he would be liable for a breach of contract, as for a simple contract debt (a). If he execute the deed, it is not necessary, in order to make it a covenant, that there should be the word covenant, but the word agree and declare (b), or the word declare alone will suffice (e). There is no magic in words, and it is simply a question of intention whether the execution of the deed was for the purpose of creating a specialty debt or alio intuitu (d). In the case of a trustee covenanting for himself and his heirs, a remedy lay at common law against the heir in respect of estates descended; and by 3 W. & M. c. 14, the like remedy was given against the devisee of the debtor: but this was only where the specialty would have supported an action of debt, as in the case of a bond, and did not apply to a covenant, by which, not a debt, was created, but damages were recoverable (e); but 11 G. 4, & 1 W. 4, c. 47, perfected the remedy by extending it to the case of a covenant [or other specialty. By the Conveyancing and Law of Property Act, 1881, unless a contrary intention is expressed, a covenant and a contract under seal, and a bond or obligation under seal, made, or implied by virtue of the Act, since the 31st December, 1881, though not expressed to bind the heirs, operate in law to bind the heirs and real estate, as well as the executors and administrators, and personal estate, as if heirs were expressed (ƒ). The effect of this section seems to be to extend the remedy given by 11 G. 4, & 1 W. 4, c. 47, to all specialty creditors, whether the heirs are named or not. By 3 & 4 W. 4, c. 104, it was] declared that the lands of a debtor should be liable

to all his debts, whether on simple contract or on specialty;

Bryan, 5 Ir. Ch. Rep. 119; Marryat v. Marryat, 6 Jur. N. S. 572; Courtney v. Taylor, 6 M. & Gr. 851; Wynch v. Grant, 2 Drew, 312. It appears from the latter case, that in Adey v. Arnold, the trustee had executed the deed, a circumstance not mentioned in the report of Adey v. Arnold.

(a) Richardson v. Jenkins, 1 Drew. 477; Vincent v. Godson, 1 Sm. & G. 384.

(b) Westmoreland v. Tunnicliffe, W. N. 1869, p. 182.

(c) Richardson v. Jenkins, 1 Drew. 477; and see Saltoun v. Houston, 1 Bing. N. C. 433; Cummins v. Cummins, 3 Jones & Lat. 64; 8 Ir. Eq. Rep. 723; Jenkins v. Robertson, 1 Eq. Rep. 123.

(d) Isaacson v. Harwood, 3 L. R. Ch. App. 225.

(e) Wilson v. Knubley, 7 East. 127. [(f) 44 & 45 Vict. c. 41, s. 59.]

but specialties, where the heir was bound, were still made to take precedent of simple contract debts, and specialties where the heir was not bound. A subsequent statute (g) has now abolished the distinction between simple contract debts and specialty debts, and directed all debts to be paid pari passu in the administration of estates of testators or intestates who may have died on or after the 1st of January, 1870.

As soon as a trustee

20. Duties consequent on acceptance. has accepted the office, he must bear in mind that he is [*207] not to sleep upon it, but is required to take an * active part in the execution of the trust. The law knows no such person as a passive trustee. If, therefore, an unprofessional person be associated in the trust with a professional one, he must not argue, as is often done, that because the solicitor is better acquainted with business and with legal technicalities, the administration of the trust may be safely confided to him, and that the other need not interfere except by joining in what are called formal acts. If he sign a power of attorney for sale of stock, or execute a deed of reconveyance on repayment of a mortgage sum, he is as answerable for the money as if he were himself the solicitor and had the sole management of the transaction.

21. A trustee on acceptance must inform himself of the state of the trust. Again, when a trustee has entered upon the trust, he is bound at once to acquaint himself with the nature and particular circumstances of the property, and to take such steps as may be necessary for the due protection of it (a). Thus he is not liable for the defaults of any predecessor in the trust, but if the fund is in danger and not in the state in which it ought to be, the Court will presume him to have made proper inquiries, and will hold him responsible if he does not take such measures as may be called for (b).

(g) 32 & 33 Vict. c. 46.

[(a) A trustee who brings an action for the protection of the trust property under the advice of counsel, is not absolutely indemnified by such advice from liability to the costs of the action

as between himself and his cestuis que trust, though such advice would go a long way to justify the proceedings, if instituted bonâ fide: Stott v. Milne, 25 Ch. D. 710.]

(b) See Taylar v. Millington, 4 Jur.

---

But where a per

22. Covenant to settle future property. son was appointed new trustee of a marriage settlement, which contained a covenant by the husband for the settlement of the wife's future property, it was held that he was entitled to assume that the covenant had been duly performed up to the time of his becoming trustee, if he had no reason to suspect the contrary (c).

23. Inventory.A trustee of chattels personal for the separate use of a wife must take care, on accepting the trust, to have the effects ascertained by a proper inventory, or in a suit for an account of the trust estate he may be deprived of his costs (d).

24. A trustee by mistake. We may add in conclusion, that if a person by mistake or otherwise assume the character of trustee, when it really does not belong to him, and so becomes a trustee de son tort, he may be called *to account by the cestuis que trust, for the monies [*208] he received under colour of the trust. Thus, where

a testator devised an estate to W. Thompson upon certain trusts, with a power of sale to him, his heirs and assigns, and the trustee devised all his real estate to his sister Grace Thompson, charged with 50l. to his friend Watson, and died leaving his brother Jonas Thompson his heir-at-law, and, on the death of the trustee, Grace Thompson assuming herself to be the devisee, sold the estate and received the money and paid it wrongfully to the tenant for life; in a suit against the representative of Grace Thompson, the Court held that, although she was neither heir nor devisee, yet as she had acted as trustee and received the money in that character, she was accountable for it to the cestuis que trust (a).

N. S. 204; Townley v. Bond, 2 Conn. & Laws. 405; James v. Frearson, 1 Y. & C. C. C. 370; Ex parte Geaves, 25 L. J. Bank. 53; 2 Jur. N. S. 651; Youde v. Cloud, 18 L. R. Eq. 634; and see Malzy v. Edge, 2 Jur. N. S. 80; but this decision seems opposed to the current of authorities.

(c) Geaves v. Strahan, 8 De G. M. & G. 291.

(d) England v. Downs, 6 Beav. 269; see 279.

(a) Rackham v. Siddall, 16 Sim. 297; affirmed by the Lord Chancellor on appeal as to the point under consideration, 1 Mac. & G. 607; Pearce v. Pearce, 22 Beav. 248; Life Association of Scotland v. Siddal, 3 De G. F. & J. 58; Hennessey v. Bray, 33 Beav. 96; Yardley v. Holland, 20 L. R. Eq. 428.

[*209]

*CHAPTER XII.

OF THE LEGAL ESTATE IN THE TRUSTEE.

UPON this subject we propose to treat, First. Of vesting the legal estate in the trustee; Secondly. Of the properties and devolution of the legal estate; and Thirdly. What persons taking the legal estate will be bound by the trust.

SECTION I.

OF VESTING THE LEGAL ESTATE IN THE TRUSTEE.

I. With reference to the Statute of Uses.1

1. Statute of uses. -In the case of a simple trust, as the statute of 27 Henry the Eighth operates upon the first use, whether designated in the instrument as a use or trust, if a conveyance or devise be to A. and his heirs "in trust" for B. and his heirs, the possession will be executed in B. (a); and

(a) As in Austen v. Taylor, 1 Eden, 361; Robinson v. Grey, 9 East, 1; Williams v. Waters, 14 M. & W. 166,

&c. See Broughton v. Langley, 2 Salk. 679; Chapman v. Blissett, Cas. t. Talb. 150.

1 Statute of Uses. - Even where direct words of trust are used, it may be that the trustee will receive no title, the statute causing both the equitable and legal title to vest immediately in the cestui que trust; Witham v. Brooner, 63 Ill. 344; Thatcher v. Omans, 3 Pick. 521; Upham v. Varney, 15 N. H. 466; Bayer v. Cockerill, 3 Kan. 282; Parks v. Parks, 9 Paige, 107; Ramsay v. Marsh, 2 McCord, 252; Jackson v. Fish, 10 Johns. 456; Moore v. Shultz, 13 Pa. St. 98; the intervening estate being immediately terminated; Hutchins v. Heywood, 50 N. H. 495: the statute is in force in most of the states; for its history in America, see 4 Kent Com. 299; 2 Wash. Real Prop. 152. See also the statutes of the various states; and their practical application may be followed through numerous decisions; Marden v. Chase, 32 Me. 329; Dennett v. Dennett, 40 N. H. 498; Sherman v. Dodge, 28 Vt. 26; Baptist Soc. v. Hazen, 100 Mass. 322; Johnson v. Johnson, 7 Allen, 197; Nightingale v. Hidden, 7 R. I. 132; Bryan v. Bradley, 16 Conn. 474; Jackson v. Cary, 16 Johns. 302; Prince v. Sisson, 13 N. J. Eq. 168; Deibert's App. 78 Pa. St. 296; Earp's App. 75 Pa. St. 119; Matthews v. Ward, 10 Gill. & J. 443; Bass v. Scott, 2 Leigh. 359; Smith v. Lookabill, 76 N. C. 465; Ramsay v. Marsh, 2

the statute must operate, notwithstanding the intention of the settlor to the contrary, for the will of the subject cannot control the express enactment of the legislature (b). In order, therefore, to prevent the legal estate from being executed in the cestui que trust, it is necessary to vest in the trustee not only the ancient common law fee, but also the primary use, as, by conveying or devising "to the trustee and his heirs to the use of the trustee and his heirs (c)," or “unto and to the use of the trustee and his heirs (d)"; for although by the latter form of *limitation the [*210] trustee will be in by the common law, yet, as the

possession and the use are both vested in the trustee, the trust over, as not being the primary use, will not be affected by the statute.

(b) See Cawardine v. Carwardine, 1 Eden, 36. In Gregory v. Henderson, 4 Taunt. 772, Judges Chambre and Gibbs laid a stress on the testator's intent, but Judge Heath referred the case to the true principle, viz. that the trustees having a duty to perform, it was a trust special, and so out of the statute.

(c) Robinson v. Comyns, Cas. t. Talb. 164; Attorney-General v. Scott, id. 138; Hopkins v. Hopkins, 1 Atk. 589, per Lord Hardwicke.

(d) Doe v. Passingham, 6 B. & C. 305; Doe v. Field, 2 B. & Ad. 564; Harris v. Pugh, 12 Moore, 577; S. C. 4 Bing. 335; Rackham v. Siddall, 1 Mac. & G. 607.

McCord, 252; Adams v. Guerard, 29 Ga. 676; You v. Flinn, 34 Ala. 411; Williams v. Church, 1 Ohio St. 497; Nelson v. Davis, 35 Ind. 474; Witham v. Brooner, 63 Ill. 344; Ready v. Kearsley, 14 Mich. 228; Guest v. Farley, 19 Mo. 147; Bayer v. Cockerill, 3 Kan. 292. The statute does not execute the use in case of active trusts, and if anything remains for the trustee to do, the legal title remains in him; Leggett v. Perkins, 2 Comst. 297; Norton v. Leonard, 12 Pick. 152; Meacham v. Steele, 93 Ill. 135; Adams v. Perry, 43 N. Y. 487; Morton v. Barrett, 22 Me. 261; Wood v. Mather, 38 Barb. 473; Nickell v. Handly, 10 Gratt. 336; but see McNish v. Guerard, 4 Strob. Eq. 66. If several trusts are set forth together, some of which would be immediately executed and some not, the trustee holds the legal title; Stockbridge v. Stockbridge, 99 Mass. 244, but see Leonard v. Diamond, 31 Md. 536.

If the trust be for a married woman to her separate use, or to permit and suffer her to receive the rents, the legal title will vest in the trustee; Richardson v. Stodder, 100 Mass. 528; Ayer v. Ayer, 16 Pick. 330; Rogers v. Ludlow, 3 Sandf. Ch. 104; Franciscus v. Reigart, 4 Watts. 109; it has sometimes been held that property to "the sole and separate use" will not be recognized; Westcott v. Edmunds, 68 Pa. St. 34; Roberts v. Moseley, 51 Mo. 282; and Ware v. Richardson, 3 Md. 505. Commenting on the case of Williams v. Waters, the trust certainly would fail unless the woman was married, or in contemplation of marriage; Yarnall's App. 70 Pa. St. 339; Hamersley v. Smith, 4 Whart. 129; for sole use of C. and her children, not executed until possibility of children is extinct; Brady v. Walters, 55 Ga. 25.