more liberal principles than uses formerly were. In reference to this point, and also to the question, whether the trustee could hold against the person attainted himself if subsequently pardoned, Sir Thomas Clarke said, "The detaining the estate against the Crown where the cestui que trust dies without leaving a relation was different from detaining it against the cestui que trust himself. The Court would go as far as it could, and he thought the trustee would be estopped from setting up such a claim" (c). Lord Mansfield said, "He could not resolve the case upon principle, for he could find no clear and certain rule to go by" (d). But Lord Henley agreed with Sir Thomas Clarke, and asked, "If the King thinks proper to pardon the felon, what hinders him from suing his trustee?- what hinders him from instantly assigning his trust for the benefit of his family” (e).

22. Whether the author of the trust can assert a claim.— A question was put by Lord Mansfield in Burgess v. Wheate, but was neither answered at the time, nor received any notice from the bench afterwards, viz. whether the right to the estate might not, in particular cases, result to the author of the trust (ƒ). As, if A. infeoffed B. and his heirs, in trust for C. and his heirs, and C. [before the 14th August, 1884, died] without heirs, could the equitable interest result in favour of A.? Such a case has never occurred, and there is no authority upon the subject; but it seems anomalous that a trust can under any circumstances result when the whole beneficial interest has been once parted with.

23. Trustee cannot come into a court of equity for his own benefit. As the trustee when he can claim in these cases advances not a positive, but merely a negative right, he has no ground for coming into a court of equity for the establishment of his right (g). Thus, where A. devised a copyhold estate to B. and his heirs in trust for C. and his heirs, and C. died without heirs, and then B. died, having

(c) 1 Eden, 210.

(d) Id. 236; and see Id. 184.

(e) Id. 255.

(ƒ) Id. 185. As in a gift of land in fee to a corporation, and the cor

poration is dissolved or ceases, Co. Lit. 13 b.

(g) See Id. 212; and see Onslow v. Wallis, 1 Mac. & G. 506.

[*285] entered upon the lands, and having applied the *rents to the trust, but never having been admitted, and the heir of B. filed a bill against the lord for compelling him to grant him admission, Lord Loughborough said, "If a man has got the legal estate, the Court will not take it from him, except for some person who has a claim; but does it follow that the Court will give him the legal estate" (a). [But a Court of law will grant a mandamus to the lord to admit. the heir of the trustee (b), and prior to the late Act the heir when admitted was entitled to hold the lands for his own benefit (c).]

24. If cestui que trust die without next of kin, the trust chattel goes to the Crown.-If a cestui que trust of chattels, whether real or personal, die intestate, without leaving any next of kin, the beneficial interest will not, in this case, remain with the trustee, but like all other bona vacantia will vest in the Crown by the prerogative (d). And the result will be the same where the cestui que trust, though not dying absolutely intestate, has appointed an executor, who by the language of the will itself is excluded from any beneficial interest (e). But an executor not expressly made a trustee by the will, was, before the Act of William IV. (f), entitled prima facie to the surplus for his own benefit, and that statute it is conceived has converted him into a trustee for the next of kin only, and has not altered the old law, as between him and the Crown, in case there be no next of kin (g). 25. Trustee cannot set up title adverse to cestui que trust. A trustee is, under no circumstances, allowed to set up a

(a) Williams v. Lord Lonsdale, 3 Ves. 752, see 756, 757.

[(b) Rex v. Coggan, 6 East, 431.] [(c) Gallard v. Hawkins, 27 Ch. D. 298. See now 47 & 48 Vict. c. 71, 8. 4.]

(d) If the intestate leave a widow and no next of kin the Crown takes a moiety of the personal estate; Cave v. Roberts, 8 Sim. 214.

(e) Middleton v. Spicer, 1 B. C. C. 201; Taylor v. Haygarth, 14 Sim. 8; Russell v. Clowes, 2 Coll. 648; Powell v. Merrett, 1 Sm. & G. 381; Cradock

v. Owen, 2 Sm. & G. 241; Read v. Stedman, 26 Beav. 495; [Dillon v, Reilly, 9 L. R. Ir. 57; Re Mary Hudson's Trusts, 52, L. J. N. S. Ch. 789; and see Re Gosman, 15 Ch. D. 67.] The foregoing were all cases of failure of next of kin of the author of the trust, but the principle of the decisions applies equally.

(f) 11 G. 4 & 1 W. 4, c. 40.

See ante, p. 61; [so now decided Re Knowles, 49 L. J. N. S. Ch. 625.1

title adverse to his cestui que trust (h). But though he may not claim against his own cestui que trust, yet he is not bound to deliver over the property to his cestui que trust if he cannot safely do so by reason of notice of title in another which is paramount to the trust (i).

* 26. Moral rights.-Trustees would not be justi- [*286] fied in doing any act at variance with their trust. If, for instance, they honestly believed that property accepted by them in trust for one belonged of right to another, they would not be justified in communicating to such other that he could successfully claim the estate. Trustees have the custody of the property, but do not keep the conscience of their cestui que trust.

27. Impeachable settlements. It sometimes happens that circumstances raise a suspicion but without any constat, that the trust deed is impeachable, as if the trust be created by a father tenant for life and a son claiming in remainder under an appointment in exercise of a special power, and there are grounds for surmising that the appointment was collusive, but the trustee must assume the validity of the trust until it is actually impeached (a).

(h) See Attorney-General v. Munro, 2 De G. & Sm. 163; Stone v. Godfrey, 5 De G. M. & G. 76; Ex parte Andrews, 2 Rose, 412; Kennedy v. Daly, 1 Sch. & Lef. 381; Shields v. Atkins, 3 Atk. 560; Pomfret v. Windsor, 2 Ves. 476; Conry v. Caulfield, 2 B. & B. 272; Langley v. Fisher, 9 Beav. 90; Reece v. . Trye, 1 De G. &

397

Sm. 279; Newsome v. Flowers, 30
Beav. 461; Frith v. Cartland, 2 H. &
M. 417; Tennant v. Trenchard, 4 L.
R. Ch. App. 537; Neligan v. Roche,
7 I. R. Eq. 332.

(i) Neale v. Davies, 5 De G. M. & G. 258.

(a) Beddoes v. Pugh, 26 Beav. 407.

[*287]

*CHAPTER XIV.

THE DUTIES OF TRUSTEES OF CHATTELS PERSONAL.

WE next advance to the duties of trustees, and as trusts of chattels personal are of the most frequent occurrence, we shall first advert to trustees of property of this description. We may consider this branch of our subject under six heads: 1. The reduction of the chattel into the possession of the trustee. 2. The safe custody of it. 3. The rules of the Court as to conversion. 4. The proper investment of the trust fund. 5. The liability of trustees to payment of interest in cases of improper detainer; and, 6. The distribution of the trust fund.

SECTION I.

OF REDUCTION INTO POSSESSION.

1. Of reduction into possession. The first duty of trustees is to place the trust property in a state of security. Thus if the trust fund be an equitable interest of which the legal estate cannot at present be transferred to them, it is their duty to lose no time in giving notice of their own interest to the persons in whom the legal estate is vested; for otherwise he who created the trust might incumber the interest he has settled in favour of a purchaser without notice, who by first giving notice to the legal holder might gain a priority (a).1

(a) See Jacob v. Lucas, 1 Beav. 436.

1 Trustee taking possession.· The trustee upon his appointment, acceptance

and qualification should proceed to take possession of the trust property. If there are notes, bonds, and other choses in action, the parties in any way interested in them should be notified; Judson v. Corcoran, 17 How. 614; Foster v. Mix, 20 Conn. 395; Barney v. Douglass, 19 Vt. 98; Stewart v. Kirkland, 19 Ala. 162; Murdoch v. Finney, 21 Mo. 138; Ward v. Morrison, 25 Vt. 593; Bank v. Balliet, 8 Watts & S. 311; Fisher v. Knox, 13 Pa. St. 622; but in some states an assignment of a chose in action is complete when the transfer is made, and before notice; Conway v. Cutting, 51 N. H. 408; Garland v.

2. Chose en action. If the trust fund be a chose en action, as a debt, which may be reduced into possession, it is the trustee's duty to be active in getting it in; and any unnecessary delay in this respect will be at his own personal risk (b). A marriage settlement often contains a *covenant by one of the parties for payment of [*288] a certain sum to the trustees within a limited period, and if the Statute of Limitations be allowed to run so that the claim is barred, the trustees are answerable (a); and à fortiori the trustees will be responsible if they execute the settlement and sign a receipt for the money but do not actually receive it (b).

Prepayment. Though trustees may be answerable for delaying after the proper time to get in a chose en action, there can be no objection to their receiving it before the time, if the person liable be willing to pay it (c). [And trustees of a reversionary chose en action may concur with the person entitled to the prior interest in calling for an immediate transfer to themselves of the chose en action (d).]

3. Executors. There is no inflexible rule as to the time within which executors are bound to get in the assets; but in every case the particular circumstances must govern, and the Court allows the executors a large discretion (e). Thus

(b) Caffrey v. Darby, 6 Ves. 488; Platel v. Craddock, C. P. Cooper's Cases, 1837-8, 481; Jones v. Higgins, 2 L. R. Eq. 538; Ex parte Ogle, 8 L. R. Ch. App. 711; McGachen v. Dew, 15 Beav. 84; Wiles v. Gresham, 2 Drew. 258; Waring v. Waring, 3 Ir. Ch. Rep. 335; Tebbs v. Carpenter, 1 Mad. 298; Grove v. Price, 26 Beav. 103; and see Rowley v. Adams, 2 H. L. Cas. 725; Macken v. Hogan, 14 Ir. Ch. R. 220.

(a) Stone v. Stone, 5 L. R. Ch. App. 74.

(b) Westmoreland v. Holland, 23 L. T. N. S. 797; 19 W. R. 302; affirmed W. N. 1871, p. 124.

(c) Mills v. Osborne, 7 Sim. 30; Maskelyne v. Russell, W. N. 1869, p. 184.

[(d) Anson v. Potter, 13 Ch. D.

141.]

(e) Hughes v. Empson, 22 Beav. 183, per M. R.

Harrington, 51 N. H. 409; Warren v. Copelin, 4 Met. 594; Wood v. Partridge, 11 Mass. 488; Littlefield v. Smith, 17 Me. 327; Maybin v. Kirby, 4 Rich. Eq. 105. It has been held, however, that a payment by the debtor without notice will terminate his liability; Reed v. Marble, 10 Paige, 409; but not so if payment is made after notice; Judson v. Corcoran, 17 How. 614; Brashear v. West, 7 Pet. 608. The trustee must collect promptly the bills receivable, or become liable for the delay; Neff's App. 57 Pa. St. 91; Cross v. Petree, 10 B. Mon. 413; Hester v. Wilkinson, 6 Humph. 215.