in action which he has assigned, he holds the proceeds in trust for the assignee. So, if one sells the property of another and deposits the money in bank in his own name, upon notice to the bank, by the owner of the property, of the facts, and a demand for the money, the bank becomes a quasi or constructive trustee for the true owner.2

1 Post, § 438; Fortescue v. Barnett, 3 Myl. & K. 36.

2 Bank of Wellsborough v. Baake, 71 Pa. St. 213; Arnold v. Macungie Bank, 71 Pa. St. 287; Twitchell v. Drury, 25 Mich. 393; Campan v. Campan, ib. 127.

CHAPTER VIII.

TRUSTS THAT ARISE BY CONSTRUCTION FROM POWERS.

§ 248. The nature of powers that imply a trust.

§ 249. Court will execute such powers as trusts.

§§ 250, 251. Instances of powers which the court will execute as trusts.

§ 252. Instances of powers that are not trusts.

§ 253. Where the power is too uncertain.

§ 254. The power must be executed as given, or it will remain a trust to be executed by the court.

§§ 255, 256. In what manner the court will execute a trust arising out of a power. § 257. Whether courts will distribute per stirpes or per capita.

§ 258. And whether to those living at the death of donor or of the donee.

§ 248. PROPERTY is sometimes given to a person with a power to dispose of it for a particular purpose, or to a particular class of persons, or to certain persons to be selected or designated by the donee from a particular class. If the donee executes the power and disposes of the property, or designates or selects the persons who are to take under the gift, it goes as directed, and there is no great room for doubt or question; but if the donee refuses or neglects to execute the power it becomes a grave inquiry whether the persons in whose favor the power might have been executed have any interest in the property, or any remedy for the non-exercise of the power by the first taker or donee. In dealing with the cases that have arisen upon these inquiries, courts have distributed powers into mere powers, and powers coupled with a trust, or powers which imply a trust. Mere powers are purely discretionary with the donee: he may or may not exercise or execute them at his sole will and pleasure, and no

1 Brown v. Higgs, 8 Ves. 574; White v. Wilson, 1 Drew. 298.

court can compel or control his discretion, or exercise it in his stead and place, if for any reason he leaves the powers unexecuted. If the donee executes the powers, but executes them in a defective manner, courts may aid the execution and supply the defects, but they cannot exercise or execute mere naked powers conferred upon a donee.2 It is different with powers coupled with a trust, or powers which imply a trust. In this class of cases the power is so given that it is considered a trust for the benefit of other parties; and when the form of the gift is such that it can be construed to be a trust, the power becomes imperative, and must be executed. Courts will not allow a clear trust to fail for want of a trustee; nor will they allow a trust to fail by reason of any act or omission of the trustee; therefore, courts will not allow a trust to fail, or to be defeated by the refusal or neglect of the trustee to execute a power, if such power is so given that it is reasonably certain that the donor intended that it should be exercised. There are mere powers and mere trusts. There are also powers which the party to whom they are given is intrusted with and required to execute. Courts consider this last kind of power to partake so much of the character of a trust to be executed, that they will not allow it to fail by the failure of the donee to execute it, but will execute it in the place of the donee.3 Lord Hardwicke

1 Greenough . Welles, 10 Cush. 576; Eldredge v. Heard, 106 Mass. 582.

2 Wilkinson v. Getty, 13 Io. 157; Arundell v. Philpot, 2 Vern. 69; Tompkyn v. Sandys, 2 P. Wms. 228 n.; Bull v. Vardy, 1 Ves. Jr. 272. And even if a party intended to execute a power, but is prevented by sudden death, the court will not execute the power. Pigott v. Penrice, Com. 250; Gilb. Eq. 138; Sugd. on Powers, 392.

8 Burgess v. Wheate, 1 Wm. Black. 162; Sugd. on Pow. 393-398; Lucas v. Lockhart, 10 Sm. & M. 466; Harrison v. Harrison, 2 Gratt. 1; Greenough v. Welles, 10 Cush. 576; Erickson v. Willard, 1 N. H. 217; Harding v. Glyn, 1 Atk. 469; Cruwys v. Colman, 9 Ves. 319; Forbes v. Ball, 3 Mer. 437; Witts v. Boddington, 3 Bro. Ch. 95; Walsh v. Wallinger, 2 R. & My. 78; Grieveson v. Kersopp, 2 Keen, 654; Jones v. Torin, 6 Sim. 255; Martin v. Swannell, 2 Beav. 249; Fenwick v. Greenwell, 10

observed, that such powers ought rather to be called trusts than powers.1 In all cases these powers or trusts must be construed according to the intention of the parties, to be gathered from the whole instrument.2

§ 249. In all cases where parties have an imperative power or discretion given to them, and they die in the testator's Beav. 412; Fordyce v. Brydges, 10 Beav. 90; 2 Phill. 497; Burrough v. Philcox, 5 My. & Cr. 73; Falkner v. Wynford, 15 L. J. Ch. 8, 9 Jur. 1006; Penny v. Turner, 15 Sim. 368; 2 Phill. 493; Alloway v. Alloway, 4 Dr. & War. 380; Salusbury v. Denton, 3 K. & J. 535; Joel v. Mills, ib. 474; Reid v. Reid, 25 Beav. 469; Brown v. Higgs, 8 Ves. 574; Babbitt v. Babbitt, 26 N. J. Eq. 44. In this case Lord Eldon said, if the power be one which it is the duty of the party to execute, made his duty by the requisition of the will, put upon him as such by the testator, who has given him an interest extensive enough to enable him to discharge it, he is a trustee for the exercise of the power, and not as having a discretion whether he will exercise it or not; and the court adopts this principle as to trusts, and will not permit his negligence, accident, or other circumstances to disappoint the interest of those for whose benefit he is called upon to execute it. In Attorney-General v. Downing, Wilm. 23, Ld. Ch. J. Wilmot said, as to the objection that those powers are personal to the trustees, and by their death become unexecutable, they are not powers but trusts, and there is a very essential difference between them. Powers are never imperative: they leave the acts to be done at the will of the party to whom they are given. Trusts are always imperative, and are obligatory upon the conscience of the party intrusted. The court supplies the defective execution of powers, but never the non-execution of them; for they are not meant to be optional. But a person who creates a trust means it shall be executed at all events. The individuals named as trustees are only the nominal instruments to execute that intention, and if they fail, either by death, or by being under disability, or by refusing to act, the constitution has provided a trustee. Where no trustees are appointed at all, the court assumes the office. There is some personality in every choice of trustees, but this personality is res unius ætatis, and if the trust cannot be executed through the medium which was in the primary view of the testator, it must be executed through the medium which the constitution has substituted in his place. Brook v. Brook, 3 Sm. & Gif. 280; Withers v. Yeadon, 1 Rich. Ch. 324; Miller v. Meetch, 8 Barr, 417; Gibbs v. Marsh, 2 Met. 243; Grimke v. Grimke, 1 Des. Eq. 375 n.

1 Godolphin v. Godolphin, 1 Ves. 23.

2 Kerr v. Verner, 66 Pa. St. 326; Guion v. Pickett, 42 Miss. 77.

lifetime,1 or decline the trust or office, or disagree as to the execution of it,3 or do not execute it before their death, or if from any other circumstance, the exercise of the power by the party intrusted with it becomes impossible, the court will imply a trust, and will put itself in the place of the trustee, and will exercise the power by the most equitable rule. And the court will act retrospectively in executing these powers as quasi trusts; and although there may be great difficulties and impracticabilities in the way, yet the court will exercise the power and enforce the trust:7 for, if the trust or power can by any possibility be exercised by the court, the non-execution by the party intrusted shall not prejudice the party beneficially interested, or the cestui que trust. Thus a power to sell given to tenant for life as cestui que trust may be executed after his death by trustees under a decree of a court of equity.9

1 Maberly v. Turton, 14 Ves. 499; Attorney-General v. Downing, Wilm. 7; Amb. 550; Attorney-General v. Hickman, 2 Eq. Ca. Ab. 193.

2 Izod v. Izod, 32 Beav. 242; Doyley r. Attorney-General, 2 Eq. Ca. Ab. 194; Gude v. Worthington, 3 De G. & Sm. 389.

8 Wainwright v. Waterman, 1 Ves. Jr. 311; Moseley v. Moseley, t. Finch, 53.

♦ Harding v. Glyn, 1 Atk. 469; Croft v. Adam, 12 Sim. 639; Hewett v. Hewett, 2 Eden, 332; Flanders v. Clark, 1 Ves. 10; Grieveson v. Kirsopp, 2 Keen, 653.

222.

Attorney-General v. Stephens, 3 M. & K. 347.

Maberly v. Turton, 14 Ves. 499; Edwards v. Grove, 2 De G., F. & J.

7 Pierson v. Garnet, 1 Bro. Ch. 46.

8 Brown v. Higgs, 5 Ves. 505.

• Faulkner v. Davis, 18 Gratt. 651. Where the discretionary power is such as would not belong to the court by virtue of its jurisdiction over the subject-matter, independent of the will, as for instance a power of selecting the beneficiaries of testator's bounty, the court will not execute it, and under the rules cannot confer it upon an appointee. In such cases it is executed equitably by distributing equally among the distributees. But where the discretion applies to some ministerial act, as leasing or selling land, felling timber, and the like, the court will exercise control. Druid Park Heights Co. v. Oettinger, 53 Md. 63.