of the trust fund by his companion, he shall be charged with the amount". And so in other cases, where, upon the proofs or circumstances, the court is satisfied that there is dolus malus, or any evil practice, fraud, or ill intent in him that permitted his companion to receive the whole profits, he may be charged, though he receive nothing. So also, if there are two trustees, and one of them without warrant of the party that trusts him, or of a court of equity, assigns his estate, and the assignee receives the profits, and becomes insolvent, he that made the assignment shall answer it for him; but the other original trustee shall answer for no more than what he receives, because the assignee comes not in by him, or by his assent or appointment; and in case such original trustee, who did not make the assignment, receive the whole profits, and become insolvent, neither the assignor or assignee shall be answerable for them P. But there is a difference between joint-trustees and executors; for executors may act separately, if they think fit; but if a trust estate is to be sold, the trustees must join in conveying, and also in receipts, otherwise, no one will purchase, and since one trustee has equal power, authority, and interest, with the other, the one cannot in reason insist or desire to receive more of the consideration-money than the other, or be more trustee than his co-partner or co-trustee. TRUSTS. alter the nature Further, it has been determined, that a bare trustee cannot Trustee cannot alter the nature of the trust, by turning land into money, of the trustor money into land, so as to make it vest in different estate. persons, by his act, than it would otherwise have done. TRUSTS. So, where an executor in trust for an infant of a lease for ninety-nine years, determinable on three lives, upon the lord's refusing to renew but for lives absolutely, complied with the lord, and changed the years into lives; this, upon the infant's dying under twenty-one and intestate, was adjudged to be a trust for his administrator, and not for his heirs. But, where a feme purchased a church lease to her and her heirs for three lives, and died, leaving an infant daughter, two of the lives died, and the guardian renewed the lease, it was holden, that this renewed lease was a new acquisition, and should go to the heirs on the part of the father'. However, in general, it is true, that a guardian or trustee, shall not alter the nature of an infant's property, so as to change the right of succession to it in case of the infant's death, unless by some act manifestly for the advantage of the infant at the time". In considering the power of a trustee to change the nature of a trust estate, it may therefore be material to distinguish those cases in which the cestui que trust is sui juris, from those in which he is not sui juris. For though in those cases in which the cestui que trust is sui juris, it seems to be clear that the trustee cannot change the nature of the estate; as by converting money into land, or land into money, at least, so as to bind and exclude the cestui que trust from remedy against the trustee personally. Yet, in those cases in which the cestui que trust is not sui juris, it is very frequently necessary to the interests of such a cestui que trust, that the trustee should be armed with such a power; and the true criterion in such cases appears to be, whether the interest of the cestui que trust required the TRUSTS. conversion (1). And as a trustee cannot, without an express authority Trustee cannot given him for that purpose, alter the nature of the trust alter securities. property (2), by converting land into money, or investing money upon land; so, neither, where money is once vested in stock or in other funds, can they change the security, unless expressly authorized by the trust to do so. If, therefore, they take upon themselves to use a discretionary power in this respect, they will be personally answerable for any loss which it may occasion to the trust estate; and it will be in the election of the cestui que trust, either to have the like stock restored, or the money paid to him for which it was sold. And it is here to be remarked, that although there be a power for trustees to change the trust fund, at their discretion, and invest the money upon " other good securities," neither Bank stock, nor South Sea stock, will, it seems, be considered as securities upon which they ought to make the investment, as those funds depend, for their eligibility, in the good or bad management of the governors or directors, and are, from their nature, subject to losses as well as to advantages. But it is otherwise of South Sea or Bank * See ante; and Eardom v. Saunders, Ambl. 241; Rook v. Warth, 1 Ves. 461; Tullit v. Tullit, Amb. 370. y Harrison v. Harrison, 2 Atk. 121; Bostock v. Blake- Ibid. a Per Hardwicke, Cha. in Trafford v. Boehm, 3 Atk. 444. (1) For the distinctions upon this point, see 1 Fonb. Eq. b. 1, c. 2, s. 1, note; 2 Ib. c. 7, s. 2; and Mason v. Day, Prec. Cha. 319; Pierson v. Shore, 1 Atk. 480; Witter v. Witter, 3 P. Wms. 100, 101; Rook v. Warth, 1 Ves. 460; Oxendon v. Lord Compton, 4 Bro. Cha. Rep. 231; 2 Ves. jun. 69, 261. (2) Lord Thurlow, Ch. J. is however, reported to have said, that an executor has an honest discretion to call in a debt if he conceives it to be in hazard. See Newton v. Bennet, 1 Bro. Cha. Ca. 361. Sed vid. Taylor v. Gerst, TT3 TRUSTS. annuities, which rest for their support upon the government itself. VI. OF TRUST TERMS AS ATTENDANT ON THE TERMS for years are either, such as were created for particular purposes, as for raising childrens portions, &c. and are still subsisting for those purposes (in which case they are denominated terms in gross, and are treated of in a preceding volume) or such, of which the purposes for which they were created are satisfied, when they are called attendant terms, i. e. terms holden by those in whom the legal interest for the term subsists upon an express and declared, or an implied trust, to attend upon the reversion or inheritance expectant on the expiration of the term. The attendancy of terms on the inheritance is unknown at law. There, all terms while they subsist, in whomever the beneficial ownership may be, continue terms in gross separated from the inheritance, as a distinct and separate species of property; because the law in strictness takes no notice of any ownership distinct from the legal estate. But in equity, another kind of ownership is recognized, namely, an equitable or beneficial ownership, as distinguished from the mere legal title, the former being frequently in one, whilst the latter is vested in another. This is the case wherever one person has an estate vested in him by the rules of the common law, whilst another is entitled to the benefit and advantage of it. Now when charging lands through the medium of raising terms was invented, and made use of to answer particular ends, as to secure jointures, or portions, or money on mortgage, (which we have seen was about the time of Queen Elizabeth) it was found expedient, when the object of such terms was answered, to take assignments of them to persons to whom b See opinion of Mr. Fearne, 2 Coll. Jur. 297. (1) See some practical observations as to the term or terms proper to be assigned to attend the inheritancè, 1 Mod. Prec. N° XXVII. R the inheritance was not limited, to protect it against intervening charges, and then such terms were considered in courts of equity, (who in order to preserve as near a conformity as possible between the rules of legal and equitable estates, and avoid that perplexity and inconvenience which would necessarily result from the application of two different systems of property to the same subject, generally regulate the latter by analogy to the established rules and regulations, which at law govern and prevail in respect of the former) as consolidated with, and part of, the inheritance, and as belonging to the heir, being but as shadows kept on foot for particular purposes. But when the practice of carving out terms for particular purposes became general, it followed as a necessary consequence that some ragulation was needful with respect to the application of such terms after the purposes of their creation were answered, in cases where they were not expressly assigned to attend the inheritances: for it is to be remembered, that when terms for years are created for securing jointures, or other purpose, they do not, without an express proviso for that purpose, determine by the performance of the trusts for which it was created, but the legal existence of this term, remains the same after, as before the performIt was plain that the legal owner of such term was not intended to derive any benefit from it. The exclusion any ance. of the legal holder from all benefit was clearly in the contemplation of all parties. The specific trust of the term being declared, any purpose beyond that was, by consequence, excluded. This afforded a ground for the interposition of courts of equity, who, from the principle of general analogy between the rules of legal and equitable property before mentioned, drew this conclusion, that where the beneficial or equitable ownership of a term, and that of the inheritance, met in the same person, " undivided by any intervening beneficial interest in another person," there an equitable union took place, and the term, which before was personal property, became annexed to the inheritance, TRUSTS. |