which govern courts in making appointments of trustees as follows:

"First, the court will have regard to the wishes of the persons by whom the trust has been created, if expressed in the instrument creating the trust or clearly to be collected from it. I think this rule may be safely laid down, because if the author of the trust has in terms declared that a particular person, or a person filling a particular character, should not be trustee of the instrument, there cannot, as I apprehend, be the least doubt that the court would not appoint to the office a person whose appointment was so prohibited; and I do not think that upon a question of this description any distinction can be drawn between express declaration and demonstrated intention. The analogy of the course which the court pursues in the appointment of guardians affords, I think, some support to this rule. The court in those cases attends to the wishes of the parents, however informally they may be expressed.

"Another rule which may, I think, safely be laid down, is this, that the court will not appoint a person to be trustee with a view to the interest of some of the persons interested under the trust, in opposition either to the wishes of the testator, or to the interests of other of the cestuis que trust. I think so for this reason, that it is of the essence of the duty of every trustee to hold an even hand between the parties interested in the trust. Every trustee is in duty bound to look after the interests of all, and not of any particular member or class of members of his cestuis que trust.

"A third rule which may be safely laid down is that the court, in appointing a trustee, will have regard to the question whether his appointment will promote or impede the execution of the trust, for the very purpose of the appointment is that the trust may be better carried into execution." 1

1 In re Tempest, L. R. 1 Ch. 487.

§ 40. The sovereign may sustain the character of a trustee. He has a legal capacity to take and hold the estate, and to execute the trust, but there is a difficulty in every country in executing the judgments and decrees of a court against the sovereign power of the country. In England it is said that the Court of Chancery has no jurisdiction over the king's conscience, for the Lord Chancellor only exercises the equitable authority of the king himself in judging between his subjects. But the greater difficulty is in enforcing the decrees of a court against the sovereign power; for "the arms of equity are very short against the prerogative.”2 The subject may have a clear right, but no remedy either at law or equity against the Crown; in such case his only resource is an appeal to the king by a petition of right, and it cannot be supposed that he would be refused. The question is now of less importance; for by statute, if trust property vests in the Crown by escheat, the king is enabled to grant it to trustees for the purpose of executing the trust. And by an amendment, it is further provided that property held in trust shall not escheat or be forfeited to the Crown by the failure or forfeiture of the trustee ; and it is still further provided, that in such cases trust property shall be under the control of the Court of Chancery for the use of the parties beneficially interested, and that new trustees shall be appointed. Under these statutes it is said that an equity will be enforced against the Crown. The only cases where the 1 Lewin on Trusts, 27.

2 Pawlett v. Attorney-General, Hard. 467; Burgess v. Wheate, 1 Ed. 255; Kildare v. Eustace, 1 Vern. 439; Wike's Case, Lane, 54; Penn v. Lord Baltimore, 1 Ves. 453; Reeve v. Attorney-General, 2 Atk. 224; Hovenden v. Lord Annesley, 2 Sch. & L. 617; Hodge v. Attorney-General, 3 Yo. & Col. 312; Briggs v. Light-boats, 11 Allen (Mass.), 157, where all the authorities are commented on.

8 39 & 40 Geo. III. c. 88.

4 4 & 5 Wm. IV. C. 23.

5 13 & 14 Vict. c. 60, §§ 15, 46, 47.

• Hughes v. Wells, 9 Hare, 749; 13 Eng. L. & Eq. 389.

question is still open, whether a trust can be enforced against the Crown, is where the person of the sovereign takes by descent as heir, or by representation, or where he may have held as trustee previously to his acquiring the crown, or where a grant or bequest is made to him as a trustee.1

§ 41. The United States, and each one of the separate States, may sustain the character of trustee. They have legal capacities to take and execute trusts for every purpose.2 But a court cannot execute its judgments and decrees against a sovereign State with any more effect than the courts of England can enforce their orders against the king. The arms of equity in America are as short against the sovereign power as they are in England against the prerogative. Mr. Justice Gray has clearly shown that a State cannot be sued in law or equity against its consent, or unless there is some general or special statute authorizing the suit. A subject may have a clear right, but no remedy; in such case he must petition the legislative power, and there is no reason to suppose that his right would be refused. If a State accepts a trust by grant or bequest, it must act through its legislative powers in administering the trust, or in creating and appointing agents or officers to perform the duties which it assumes; as the United States acted in relation to the bequest of James Smithson in trust for the establishment of the Smithsonian Institution for the increase and diffusion of knowledge among men. A limitation over of a charitable devise to the States of Maryland and Louisiana in case of

1 Hill on Trustees, 50.

2 See Mitford v. Reynolds, 1 Phill. 185; Nightingale v. Goulbourn, 2 Phill. 594; 5 Hare, 484. It was denied, however, that the United States could take in trust in Levy v. Levy, 33 N. Y. 97; Shoemaker v. Commrs. 36 Ind. 176.

Briggs v. Light-boats, 11 Allen, 157.

U. S. Stat. 1836, c. 252, Vol. V. p. 64 (L. & Bro. ed.); also, Stat. 1846, c. 178, Vol. IX. p. 102.

forfeiture by the first takers was held not to vitiate the bequest.1

3

§ 42. It was formerly laid down that corporations could not be seized of lands to the use of another, and could not be trustees.2 The reason assigned for this rule was that no trust or confidence could be reposed in them; that they could not be compelled to execute a use or perform a trust, for courts of equity, in decreeing the execution of a trust, lay hold upon the conscience; and it is impossible to attach any demand upon the conscience of a body so artificially created that it cannot in the nature of things have a conscience. Again it was said that they could not be imprisoned, if they refuse to obey the decrees of the court. But the technical rules upon which it was held that corporations could not be trustees have ceased to operate; and at the present day corporations of every description may take and hold estates, as trustees, for purposes not foreign to the purposes of their own existence; and they may be compelled by courts of equity to carry the trusts into execution. If they misapply the trust fund, or refuse to obey the decrees of the court, the proper remedy is by distringas, sequestration,

1 McDonogh's Ex'rs v. Murdoch, 15 How. 367.

2 Bacon on Uses, 57; 1 Cruise, Dig. p. 340.

Sugd. V. & P. p. 417.

4 Attorney-General v. St. John's Hosp. 2 De G., J. & Sm. 621; Attorney-General v. Landerfield, 9 Mod. 286; Dummer v. Chippenham, 14 Ves. 252; Green v. Rutherforth, 1 Ves. 468; Attorney-General v. Whorwood, 1 Ves. 536; Attorney-General v. Stafford, Barn. 33; Attorney-General v. Found. Hosp. 2 Ves. Jr. 46; Attorney-General v. Clarendon, 17 Ves. 499; Attorney-General v. Caius Coll. 2 Keen, 165; Attorney-General v. Ironmongers' Co. 2 Beav. 313; Jackson v. Hartwell, 8 John. 422; Trustees Phillips Academy v. King, 12 Mass. 546; Attorney-General v. Utica Ins. Co. 2 Johns. Ch. 384; Vidal v. Girard, 2 How. 187; Miller v. Lerch, 1 Wal. Jr. 210; Columbia Bridge Co. v. Kline, Bright. N. P. 320; Greenville Acad. 7 Rich. Eq. 476; McDonogh v. Murdoch, 15 How. 367; Green v. Dennis, 6 Cow. 304; Dublin Case, 38 N. H. 577.

or injunction, or by removal and appointment of new trustees.1

§ 43. It must be understood, however, that corporations are the creatures of the law, and that as a general rule they cannot exercise powers not given to them by their charters or acts of incorporation.2 For this reason they cannot act as trustees in a matter in which they have no interest, or in a matter that is inconsistent with, or repugnant to, the purposes for which they were created. Nor can they act as trustees if they are forbidden to take and hold lands, as by the statutes of mortmain, nor if they are not empowered to take the property. But if the trusts are within the general scope of the purposes of the institution of the corporation, or if they are collateral to its general purposes, but germane to them, as if the trusts relate to matters which will promote and aid the general purposes of the corporation, it may take and hold, and be compelled to execute them, if it accepts them. Thus towns, cities, and parishes may take and hold property in trust for the establishment of colleges,5 for the purpose of educating the poor, for the relief of the poor, though not paupers, by furnishing them fuel at a low price, and for the support of schools. So also overseers of the poor, supervisors of a

1 Mayor of Coventry v. Attorney-General, 7 Bro. P. C. 235; 3 Mad. Ch. 77, 209.

2 In Matter of Howe, 1 Paige, 214.

8 In Matter of Howe, 1 Paige, 214; Jackson v. Hartwell, 8 Johns. 422.

4 Story, J., Vidal v. Girard, 2 How. 188-190; McDonogh v. Murdoch, 15 How. 367; First Cong. Soc. of Southington v. Atwater, 23 Conn. 34; Wetmore v. Parker, 7 Lansing, 121.

154.

Vidal v. Girard, ut supra. But see Perin v. McMicken, 15 La. An.

• McDonogh v. Murdoch, ut supra.

Webb v. Neal, 5 Allen, 575; McIntire Poor School v. Zanesville Canal Co. 9 Ohio, 217.

8 First Parish in Sutton v. Cole, 3 Pick. 232.