table, as over the legal estate. And if the infant died without having avoided the trust, the court will still investigate the transaction and see that no unfair advantage was taken.1 But if the infant is still alive, no one but himself can object to his deed.2

§ 34. The effect of a marriage settlement by a female infant, by which her real and personal estate is conveyed to trustees, has been frequently mooted in courts. It has been decided that as infants may contract marriage, a settlement made by the consent of their parents and guardians in consideration of a marriage to be afterwards solemnized, should be binding, inasmuch as if the marriage afterwards takes place, the situation of the parties is altered, and the interests of third persons, or children born of the marriage, may be affected. Lord Macclesfield and Lord Hardwicke upon these considerations refused to disturb such settlements. But Lord Thurlow dissented from these opinions; and the law is now settled, that a deed, executed by a female infant in consideration of marriage, does not bind her real estate, unless, having come of age, she assents to it after the death of her husband. There is no reason why the marriage settlement of a male infant should not be governed by the same

1 Lewin on Trusts, p. 25; 4 Cruise, Dig. p. 130; Starr v. Wright, 20 Ohio St. 97.

2 Ingraham v. Baldwin, 12 Barb. 9, 19.

8 Cannel v. Buckle, 2 P. Wms. 243; Harvey v. Ashley, 3 Atk. 607; Tabb v. Archer, 3 Hen. & M. 399; Healy v. Rowan, 5 Grat. 414; Lester v. Frazer, Riley, Ch. 76; 2 Hill, Ch. 529.

4 Durnford v. Lane, 1 Bro. Ch. 106.

5 Milner v. Lord Harewood, 18 Ves. 259; Trollope v. Linton, 1 Sim. & Stu. 477; Simson v. Jones, 2 Russ. & My. 365; Temple v. Hawley, 1 Sand. Ch. 153; Dominick v. Michael, 4 Sand. 374; Levering v. Levering, 3 Md. Ch. 365; Shaw v. Boyd, 5 S. & R. 312; Wilson v. McCullogh, 19 Pa. St. 77; Healy v. Rowan, 5 Grat. 414; In re Waring, 12 Eng. L. & Eq. 351; Cave v. Cave, 15 Beav. 227, 19 Eng. L. & Eq. 280; Field v. Moore, 7 De G., M. & G. 691; 35 Eng. L. & Eq. 498; Lee v. Stuart, 2 Leigh, 76.

rule, except that he could confirm the same after he became of age, and before the death of his wife. The settlement will bind the husband if he is of full age. It has been settled, however, after considerable conflict, that a female infant may bar herself of dower and of a distributive share in her husband's estate, by accepting a jointure before marriage.2 And she may, before marriage, make a binding settlement of her personal estate, for such a settlement will be for her benefit, as otherwise it would vest in the husband, and it would in effect be his settlement and not hers; but such settlement is not good of chattels that would not go to the husband. It is now settled in England by statute that a male infant over twenty years of age and a female over seventeen may make a valid marriage settlement of their real and personal estates, under the sanction of the Court of Chancery.4

§ 35. It was a maxim of the common law, that no man of full age could be allowed to stultify himself; hence the acts, deeds, and feoffments of idiots and lunatics were held to be binding, and not voidable by the party himself, though they could be avoided by his heirs, executors, or administrators.5 This maxim never prevailed in the United States, and is not now the law of England. The conveyance of a lunatic is not, however, absolutely void, but only voidable by himself as well as by his friends and representatives. But after inquisition

1 Whichcote v. Lyle's Ex'rs, 28 Pa. St. 73; Levering v. Heighe, 2 Md. Ch. 81.

2 Drury v. Drury, 2 Eden, 39; Buckinghamshire v. Drury, 2 Eden, 60-75; McCartee v. Teller, 2 Paige, 511.

3 Durnford v. Lane, 1 Bro. Ch. 111; Levering v. Levering, 3 Md. Ch. 365; Field v. Moore, 7 De G., M. & G. 691; Ainslie v. Medycott, 9 Ves. 19; Stamper v. Barker, 5 Mad. 134; Williams v. Chitty, 3 Ves. 551; Johnson v. Smith, 1 Ves. 315; Simson v. Jones, 2 Russ. & My. 365; Succession of Wilder, 22 La. An. 219.

4 18 & 19 Vict. c. 43. 1855.

5 Co. Litt. 247 b.

• Allis v. Billings, 6 Met. 415; Breckenridge v. Ormsby, 1 J. J. Marsh.

declaring him incompetent, all contracts made by him, until restored to the control of his property, are void.1 It follows that a conveyance by a lunatic upon a trust will be good until it is avoided, and a court of equity would not set it aside, if it was fair and reasonable,2 and if the parties could not be restored to their original condition; nor would the court interfere against bona fide purchasers without notice of the lunacy.3

§ 36. An alien may take real estate by devise or purchase, though he cannot take by operation of law, as by descent, or as tenant by curtesy. If an alien takes land by purchase, he may hold it until office found; and if he conveys it in trust or otherwise, his grantee will hold it until office found. An alien can therefore create a trust of real estate only until the State interposes. An alien may exercise all rights of ownership over personal property, consequently he can create a valid trust in it.4

§ 37. By the bankrupt law of England all the property which the bankrupt is entitled to up to the date of the certificate of his discharge vests in his assignees; 5 and he can create no trust in it, except in the surplus that may remain after the payment of all his debts. Under the bankrupt laws of

239; Price v. Berrington, 3 Mac. & G. 486; Moulton v. Camroux, 2 Exch. 487, 4 Exch. 17; Milner v. Turner, 4 Monr. 245; Ballew v. Clark, 2 Ired. 23; Owing's Case, 1 Bland, 370; Elliot v. Ince, 7 De G., M. & G. 488; Campbell v. Hooper, 3 Sm. & Giff. 153; Wait v. Maxwell, 5 Pick. 217; Mitchell v. Kingman, ib. 431; Snowden v. Dunlavey, 11 Pa. St. 522.

1 L'Amoureux v. Crosby, 2 Paige, 422; Pearl v. McDowell, 3 J. J. Marsh. 658.

2 Niell v. Morley, 9 Ves. 478; Story, Eq. Jur. § 228.

Carr v. Halliday, 1 Dev. & Batt. 344; Price v. Berrington, 3 Mac. &

G. 486; Greenslade v. Dare, 20 Beav. 285.

42 Kent, pp. 1-36; Lewin on Trusts, p. 25; Hill on Trustees, p. 47. 12 & 13 Vict. c. 106, §§ 141, 142.

• Lewin on Trusts, p. 26; Hill on Trustees, p. 47.

the United States and the insolvent laws of the various States, only the interests of the bankrupt existing at the date of the assignments vest in his assignees; 1 he may, therefore, create a valid trust in property acquired after the assignment and before the certificate.

II. Who may be a Trustee.

§ 38. It is a rule that admits of no exception, that equity never wants a trustee, or, in other words, that if a trust is once properly created, the incompetency, disability, death, or nonappointment of a trustee shall not defeat it.2 Thus, if property has been bequeathed in trust, and no trustee, or a trustee disabled from taking, or one who is dead, or refuses to take, is appointed, the court will decree the execution of the trust by the personal representatives, if it is personal property, and by the heirs or devisees, if it is real estate. Property once charged with a valid trust will be followed in equity into whosesoever hands it comes, and he will be charged with the execution of the trust, unless he is a purchaser for value, and without notice. The holder of the legal title and the absolute interest in property may convert himself into a trustee by making a valid declaration of trust upon good consideration; 5

1 In Matter of Grant, 2 Story, 312; Mosby v. Steele, 7 Ala. 299; Ex parte Newhall, 2 Story, 360.

2 Co. Litt. 290 b, 113 a, Butler's note (1); Story, Eq. Jur. §§ 98, 976; McCartee v. Orph. Asy. Soc. 9 Cow. 437; Crocheron v. Jaques, 3 Edw. 207; Bundy v. Bundy, 28 N. Y. 410; Dodkin v. Brunt, L. R. 6 Eq. 580.

3 Piatt v. Vattier, 9 Pet. 405; Gibbs v. Marsh, 2 Met. 243; Withers v. Yeadon, 1 Rich. Eq. 325; King v. Donnelly, 5 Paige, 46; Dawson v. Dawson, Rice, Eq. 243; Cushney v. Henry, 4 Paige, 345; De Barante v. Gott, 6 Barb. 492; Malin v. Malin, 1 Wend. 625; McIntire v. Zanesville, C. & M. Co. 9 Ham. 203; Kerr v. Day, 14 Pa. St. 114; Attorney-General v. Downing, Amb. 550; Bennet v. Davis, 2 P. Wms. 316; Sonley v. Clockmakers' Co. 1 Bro. Ch. 81; Treat's App. 30 Conn. 43; White v. Hampton, 13 Io. 259.

Ibid.; Shepherd v. McEvers, 4 John. Ch. 136.

5 See notes to Woollam v. Hearne, 2 Lead. Cas. Eq. 404; Mackreth v. Simmons, 1 Lead. Cas. Eq. 235; Adams v. Adams, 21 Wall, 186.

1

or if he conveyed the property by some conveyance which was inoperative in law, equity would hold him to be a trustee; as if a as if a man conveys property directly to his wife, a transaction inoperative in most of the States, equity would uphold the act, and decree the husband to be a trustee.2

§ 39. It may be stated, in general terms, that whoever is capable of taking the legal title or beneficial interest in property, may take the same in trust for others. Whatever persons or corporations are capable of having the legal title or beneficial interest cast upon them by gift, grant, bequest, descent, or operation of law, may take the same subject to a trust, and they will become trustees. But it does not follow that whoever is capable of taking in trust, is capable of performing or executing it. The inquiry, then, is not so much. who may take in trust, as it is who may execute and perform a trust. If a trust is cast upon a person incapable of taking and executing it, courts of equity will execute the trust by decree, or they will appoint some person capable of performing the requirements of the trust. Mr. Lewin says that "in general terms, a person to be appointed trustee should be a person capable of taking and holding the legal estate, and possessed of natural capacity and legal ability to execute the trust, and domiciled within the jurisdiction of the court."4 Sir George J. Turner, L. J., laid down the general rules

1 McKay v. Carrington, 1 McLean, 50; Kerr v. Day, 14 Pa. St. 114; Crawford v. Bertholf, Saxt. Ch. 458; Malin v. Malin, 1 Wend. 625; Tyson v. Passmore, 2 Barr, 122; Ten Eick v. Simpson, 1 Sand. Ch. 244; Waddington v. Banks, 1 Brock. 97; Atcherley v. Vernon, 10 Mod. 518; Davie v. Beardsham, 1 Ch. Ca. 39; Green v. Smith, 1 Atk. 572; Pollexfen v. Moore, 3 Atk. 272; Wall v. Bright, 1 J. & W. 474.

2 Huntly v. Huntly, 8 Ired. Eq. 250; Livingston v. Livingston, 2 John. Ch. 537; Garner v. Garner, 1 Busb. Eq. 1.

Fonb. Eq. 139, n.; Hill on Trustees, 48; Commissioners v. Walker, 6 How. (Miss.) 146.

4 Lewin on Trusts, 27.