in the performance of the trust, he will be held to have accepted, though he has not executed, the deed, and he may be liable for a breach of the trust; but if the deed contains special covenants, the trustee cannot be sued upon them, if he has not executed it, though he may have accepted the deed. Nor will the execution of the deed amount to a covenant to execute the trust, if it does not contain words that can be construed into such a covenant at law.3 But the word covenant or agree is not necessary for that purpose; the word declare will suffice. If there is a breach of the trust, but no execution of the deed other than by an acceptance of it, a simple contract debt only is created against the trustee or his estate, but a breach of covenants under the hand and seal of the trustee creates a specialty debt, which in some jurisdictions takes precedence of simple contract debts.

& Cr. 300; Leffler v. Armstrong, 4 Io. 482; Buckridge v. Glasse, 1 Cr. & Ph. 131; Bixler v. Taylor, 3 B. Mon. 362; Field v. Arrowsmith, 3 Humph. 442; Smith v. Knowles, 2 Grant, Ca. 413; Roberts v. Moseley, 51 Mo. 284.

1 Ibid.; Redenour v. Wherritt, 30 Ind. 485.

2 Richardson v. Jenkins, 1 Drew. 477; Vincent v. Godson, 1 Sm. & Gif. 384.

8 Wynch v. Grant, 2 Drew. 312; Courtney v. Taylor, 6 M. & Gr. 851; Newport v. Bryan, 5 Ir. Ch. 119; Adey v. Arnold, 2 De G., M. & G. 433; Marryatt v. Marryatt, 6 Jur. (N. s.) 572; Holland v. Holland, L. R. 4 Ch. 449.

4 Richardson v. Jenkins, 1 Drew. 477; Saltoun v. Hanston,'l Bing. N. C. 433; Cummins v. Cummins, 3 Jon. & La. 64; 8 Ir. Ch. 723; Jenkins v. Robertson, Law R. 1 Eq. 123.

5 Jenkins v. Robertson, 1 Eq. R. 123; Lockhart v. Reilly, 1 De G. & J. 464; Vernon v. Vawdry, 2 Atk. 119; Barn. 280; Cox v. Bateman, 2 Ves. 19; Kearnan v. Fitzsimon, 3 Ridg. P. C. 18. If the trustee execute the deed, and it is a simple acceptance of the trust on his part, the breach of the trust is a simple contract debt, for there is no breach of any express covenant. Holland v. Holland, L. R. 4 Ch. 449.

Gifford v. Manley, For. 109; Mavor v. Davenport, 2 Sim. 227; Benson v. Benson, 1 P. Wms. 131; Deg v. Deg, 2 P. Wms. 414; Turner v. Wardle, 7 Sim. 80; Bailey v. Ekins, 2 Dick. 632; Cummins . Cummins, 3 Jon. & La. 64; Primrose v. Bromley, 1 Atk. 89; Wood v. Hardisty, 2 Coll. 542, commented upon in L. R. 1 Eq. 125.

This distinction is of no effect in the United States, as, in every State, probably the real estate of a deceased person is equally liable for his debts, however contracted or evidenced. If the trustee executes the deed, he should see to it that the recitals are all correct, otherwise he may be held liable to make them good.1

3

§ 261. Parol evidence of the conversations, acts, and admissions of a party are admissible to prove his acceptance of a trust.2 Thus if a person, with notice of his appointment to a trust, receives the income of the trust estate; or executes a power of attorney; or signs a joint draft, order, or receipt, to enable some other person to act in administering the estate or the trust;5 or gives notice to a tenant of the estate to pay rent to him; or brings an action on the footing of the trust; or interferes generally by ordering the trust property to be sold, or by being present at the sale, or by giving any directions implying ownership, or by frequently making inquiries of the acting trustee as to the affairs of the trust, or by not objecting when the instrument of trust is

1 Gore v. Bowser, 3 Sm. & Gif. 6; Chaigneau v. Bryan, 1 Ir. Ch. 172; 8 Ir. Ch. 251; Story v. Gape, 2 Jur. (N. s.) 706; Bliss v. Bridgewater (cited Lewin on Trusts, 166, 5th ed.). But in Fenwick v. Greenwell, 10 Beav. 418, the Master of the Rolls refused to allow the recital of a representation to bind the trustees.

2 Urch v. Walker, 3 My. & Cr. 703; James v. Frearson, 1 N. C. C. 375; 1 Y. & C. Ch. Ca. 370; Doe v. Harris, 16 M. & W. 517; Redenour v. Wherritt, 30 Ind. 485.

Conyngham v. Conyngham, 1 Ves. 522.

4 Harrison v. Graham, 1 P. Wms. 241, n.; 1 Wms. Ex'rs, 151; Hanbury v. Kirkland, 3 Sim. 265; Christian v. Yancey, 2 P. & H. (Va.) 240. 5 Broadhurst v. Balguy, 1 Y. & C. Ch. Ca. 16; Sadler v. Hobbs, 2 Bro. Ch. 114; Doyle v. Blake, 2 Sch. & Lef. 231.

Montfort v. Cadogan, 17 Ves. 487.

Ibid.; O'Neill v. Henderson, 15 Ark. 235; Pond v. Hine, 21 Conn. 519; Penny v. Davis, 3 B. Mon. 314.

8 James v. Frearson, 1 Y. & C. Ch. Ca. 375; Shepherd v. McEvers, 4 Johns. Ch. 136; Crocker v. Lowenthal, 83 Ill. 579.

read to him, all these acts may be shown by parol, as evidence tending to prove an acceptance, and the evidence will be more or less conclusive according to the circumstances of each case. The general rule is, that every voluntary interference with the trust property will stamp a person as an acting trustee, unless such interference can be plainly referred to some other ground of action than to an acceptance of the trust, as by showing that such a person acted, in interfering, as the mere agent of an acting trustee. The mere fact that a person named as trustee in a deed takes the custody of the deed until another trustee can be appointed is not an acceptance, because his acts are plainly referable to another ground of action.4 While parol evidence is competent to show whether a supposed trustee has or has not accepted the trust, it is not competent, in behalf of the trustee, to prove by such evidence the conversations or declarations of the settlor, in order to show what property was subject to the trust.5 A trustee should take care that his acts in relation to the trust fund are plainly referable to some certain ground of action; for if his acts are ambiguous, or it is doubtful whether he intended to accept, or to act in some other capacity, the doubt will be against him, and he will be construed to have accepted the trust and all its responsibilities."

1 James v. Frearson, 1 Y. & C. Ch. Ca. 375; Chidgey v. Harris, 16 M. & W. 517; Butler v. Baker, 3 Co. 26 a; Hanson v. Worthington, 12 Md. 418; Roberts v. Moseley, 64 Mo. 507.

2 White v. Barton, 18 Beav. 192; Harrison v. Graham, cited Churchill v. Hobson, 1 P. Wms. 241 n. (y); Cummins v. Cummins, 8 Ir. Eq. 723; Doyle v. Blake, 2 Sch. & Lef. 231; Malzy v. Edge, 2 Jur. (N. s.) 80; Lewis v. Baird, 3 McLean, 56; Maccubbin v. Cromwell, 7 Gill & J. 157; Penny v. Davis, 3 B. Mon. 313.

Stacy v. Elph, 1 M. & K. 195; Lowry v. Fulton, 9 Sim. 115; Dove v. Everard, 1 R. & M. 281; Taml. 376; Orr v. Newton, 2 Cox, 274; Balchen v. Scott, 2 Ves. Jr. 678; Carter v. Carter, 10 B. Mon. 327; Judson r. Gibbons, 5 Wend. 224.

4 Evans v. John, 4 Beav. 35; Smith v. Knowles, 2 Grant, Ca. 413.

5 Doyle v. Blake, 2 Sch. & Lef. 240.

6 Read v. Truelove, Amb. 417; Chaplin v. Givens, 1 Rice, Eq. 154;

§ 262. At common law an executor was said to derive his authority from the will, and not from the appointment of the Probate Court.1 Therefore most of the acts of persons nominated to execute wills were valid before the probate of the will.2 Thus persons appointed by a testator in his will to administer his estate, and execute the trusts created by such will, might assume the trusts and proceed in the execution of them, without presenting the will for probate;3 and the same evidence might be used to show that a trustee under a will had accepted such trust, and had assumed its responsibilities, as was admissible to show that a trustee under a deed had accepted the office. But in nearly all the United States there are statutes upon the subject which require that wills shall be presented for probate, and that executors and trustees under them shall give bonds for the faithful discharge of their duties. Where such statutes are in force, executors or trustees have no power or authority to act without appointment by the Probate Court, and a refusal or neglect to qualify by giving bonds will be considered a refusal and disclaimer of the trust. In the absence of such statutes, if a person

Doe v. Harris, 16 M. & W. 517; Lowry v. Fulton, 9 Sim. 115; Conyngham v. Conyngham, 1 Ves. 522; Montgomery v. Johnson, 11 Ir. Eq. 476. 1 Toller's Ex'rs, 95.

2 Easton v. Carter, 5 Exch. 8; Venables v. East Ind. Co. 2 Exch. 633; Toller's Ex'rs, 46, 47; Mitchell v. Rice, 6 J. J. Marsh. 625.

• Ibid.; Vanhorne v. Fonda, 5 Johns. Ch. 403.

4 Conyngham v. Conyngham, 1 Ves. 522; Doyle v. Blake, 2 Sch. & Lef. 231; James v. Frearson, 1 Y. & C. Ch. Ca. 370; Maccubbin v. Cromwell, 7 Gill & J. 157; Godwin v. Yonge, 22 Ala. 553; Latimer v. Hanson, 1 Bland, 51; Flint v. Clinton Co. 12 N. H. 432; Chaplin v. Givens, 1 Rice, Eq. 133; Baldwin v. Porter, 12 Conn. 473.

5 Luscomb v. Ballard, 5 Gray, 403; Monroe v. James, 4 Munf. 195; Trask v. Donaghue, 1 Aik. (Vt.) 373; Carter v. Carter, 10 B. Mon. 327; Mitchell v. Rice, 6 J. J. Marsh. 625, Robertson v. Gaines, 2 Humph. 381; Johnson's App. 9 Barr, 416; Simpson's App. ib.; Wood v. Sparks, 1 Dev. & Bat. 396; Miller v. Meetch, 8 Barr, 417; Roseboom v. Moshier, 2 Denio, 61; Williams v. Cushing, 34 Me. 370; Deering v. Adams, 37 Me. 265; Hanson v. Worthington, 12 Md. 418; Knight v. Loomis, 30 Me. 208;

named as executor procures probate of the will, he will thereby constitute himself executor with all the liabilities attached to the office, and if the same person is appointed executor and trustee, probate of the will by him will be an acceptance of the trusts.2 But the same person may be appointed both executor and trustee under a will in such a manner that he may accept one of the offices and decline the other. As if a man is appointed executor, and as executor is to act as a trustee, in such case the probate of the will, and qualification as executor, will be an acceptance of the trust. But if from the will it appears that the testator intended to give his trustees a distinct and independent character, probate of the will by the executors will not make them trustees, unless they also accept the trust and qualify themselves according to law. If the executor is not expressly appointed

Groton v. Ruggles, 17 Me. 137; Sawyer's App. 16 N. H. 459; Gaskill v. Gaskill, 7 R. I. 478; Mahony v. Hunler, 30 Ind. 246. In many of the States there are statutes that authorize the judges of probate to appoint executors or trustees under wills, without requiring bonds with sureties, if the testator request it in his will, or if all the parties in interest, being sui juris, request it in writing. In such cases the court proceeds with great caution, and it may at any time require security if the circumstances seem to require it. Gibbs v. Guignard, 1 S. C. 359. The omission to give the bond required does not divest the trustee of the legal title. Gardner v. Brown, 21 Wall, 36.

1 Booth v. Booth, 1 Beav. 125; Ward v. Butler, 2 Moll. 533; Styles v. Guy, 1 Mac. & G. 431; Scully v. Delaney, 2 Ir. Eq. 165; and see Balchen r. Scott, 2 Ves. Jr. 678; Peeble's App. 15 Serg. & R. 39; Worth v. McAden, 1 Dev. & Bat. Eq. 209; Cummins v. Cummins, 3 Jon. & La. 64; Hanson v. Worthington, 12 Md. 418.

2 Mucklow v. Fuller, Jac. 198; Williams v. Nixon, 2 Beav. 472; Clarke v. Parker, 19 Ves. 1; Cummins v. Cummins, 3 Jon. & La. 64; Hanson v. Worthington, 12 Md. 418; Baldwin v. Porter, 12 Conn. 473.

8 De Peyster v. Clendining, 8 Paige, 295; Hanson v. Worthington, 12 Md. 418; Williams v. Conrad, 30 Barb. 524; Mucklow v. Fuller, Jac. 198; Booth v. Booth, 1 Beav. 125; Williams v. Nixon, 2 Beav. 472; Ward v. Butler, 2 Moll. 533; Wilson's Estate, 2 Pa. St. 325.

* De Peyster v. Clendining, 8 Paige, 295; Worth v. McAden, 1 Dev. & Bat. 209; Judson v. Gibbons, 5 Wend. 226; Williams . Cushing, 34 Me. 370; Deering v. Adams, 37 Me. 265; Hanson v. Worthington, 12 Md.