personal estate, and he deals with the personal, he will be deemed to have accepted the entire trust; and so, if the same instrument appoints him to two distinct trusts, he cannot divide them.2

§ 265. If a person wrongfully interferes with the assets of a deceased person, he may become an administrator or executor de son tort. So, if a person by mistake or otherwise assumes the character of trustee, and acts as such, when the office does not belong to him, he thereby becomes a trustee de son tort, and he may be called to account by the cestui que trust for the assets received under color of the trust.3

§ 266. When trustees have accepted the office, they ought to bear in mind that the law knows no such person as a passive trustee, and that they cannot sleep upon their trust. If such trustee remains quiet for any reason, and suffers some other to do all the business, and yet executes formal papers, as a power of attorney for the sale of stock, or a release or discharge of mortgages on payment, he is answerable for the money as if he had conducted the business. And further, the trustee should make himself acquainted with the nature and circumstances of the property; for though he is not responsible for anything that happens before his acceptance of the trust, yet if a loss occurs from any want of attention, care, or diligence in him after his acceptance, he may be held responsible for not taking such action as was called for.5

1 Ward v. Butler, 2 Moll. 533.

2 Urch v. Walker, 3 M. & Cr. 702; Judice v. Prevost, 18 La. An. 601. 3 Pearce v. Pearce, 22 Beav. 248; Life Association v. Siddall, 3 De G., F. & J. 58; Hennessey v. Bray, 33 Beav. 96; Rackham v. Siddall, 16 Sim. 297; 1 Mac. & G. 607.

4 Greaves v. Strahan, 8 De G., M. & G. 291; Prindle v. Holcombe, 45 Conn. 111; Stevens v. Gaylord, 11 Mass. 269; Ips. Manuf. Co. v. Story, 5 Met. 310; Leland v. Felton, 1 Allen, 531; Kinney v. Ensign, 18 Pick. 236.

Б England v. Downes, 6 Beav. 269, 279; Townley v. Bond, 2 Conn. & Laws. 405; James v. Frearson, 1 Y. & C. Ch. Ca. 270; Taylor v. Milling

§ 267. It has been seen that a person named as trustee, either in a deed or will, may decline the office and disclaim the estate.1 If he does so, he ought to execute an effectual disclaimer without delay, for after a long interval of time it will be presumed that he accepted the office.2 If a person knows of his appointment, and lies by for a long time, it is for the court to say whether, under all the circumstances, such acquiescence was an assent to the trust. But if a trustee does no act in the office, there is no rule that requires him to disclaim within any particular time. Thus, he may disclaim after sixteen years if the delay can be so explained as to rebut the presumption of an acceptance. A disclaimer will take effect as of the time of the gift, and will prevent the estate from vesting in the trustee disclaiming; therefore, a disclaimer, whenever made, will relate back to the time of the gift, if the party disclaiming has done no act which may be construed into an acceptance. It is therefore immaterial when the mere formal instrument of disclaimer is executed, provided that nothing has intervened to vest the estate in the trustee.5

§ 268. If a person has once accepted the office, either expressly or by implication, it is conclusive; and he cannot afterwards, by disclaimer or renunciation, avoid its duties and responsibilities. And the reason is, that, if the estate has

ton, 4 Jur. (N. s.) 204; Ex parte Greaves, 25 L. J. 53; 2 Jur. (N. s.) 253; Malzy v. Edge, 2 Jur. (N. s.) 8.

1 Ante, § 259.

2 Ibid.

Doe v. Harris, 16 M. & W. 517; Paddon v. Richardson, 7 De G., M. & G. 563; James v. Frearson, 1 Y. & C. Ch. Ca. 370.

Noble v. Meymott, 14 Beav. 471; Doe v. Harris, 16 M. & W. 517. 5 Stacey v. Elph, 1 M. & K. 195–199.

Conyngham v. Conyngham, 1 Ves. 522; Reed v. Truelove, Amb. 417; Doyle v. Blake, 2 Sch. & Lef. 231; Stacey v. Elph, 1 M. & K. 195; Cruger v. Halliday, 11 Paige, 314; Shepherd v. McEvers, 4 Johns. Ch. 136; Latimer v. Hanson, 1 Bland, 51; Jones v. Stockett, 2 Bland, 409; Chaplin v. Givens, 1 Rice, Eq. 133; Perkins v. McGavock, 3 Hay, 265; Drane v.

once vested in the trustee, it cannot be divested by a mere disclaimer or renunciation, nor can he convey the estate against the consent of the cestuis que trust without committing a breach of trust, unless the instrument creating the trust gives him that power, or unless there is the decree of a court to that effect. In such case the trustee may resign the trust, and convey the estate in the manner pointed out in the instrument creating the trust, if it speaks upon that subject; or the trustee may decline the office, and convey the estate to a new trustee, by the agreement of all the parties in interest, if they are competent to act, and consent to the arrangement. But if the parties do not consent, or if there are minor children, married women, insane persons, or others incompetent to act, a trustee, after he has once accepted the office, can only be discharged by decree of a court having jurisdiction, and upon proper proceedings had.1

§ 269. If a person accepts a trust and dies, his heir cannot renounce or disclaim it. The acceptance vested the estate in the trustee, and the law at his death cast it upon the heir; and the heir cannot divest or repudiate the estate by a mere disclaimer.2 But if the heir is so named in the original instrument of trust, that he takes the estate by purchase, and not by inheritance or descent, or if he comes in under some arrangement, as a special occupant, he may use his own judgment in accepting or refusing the estate charged with the trust. In most of the United States there are special provisions by statute regulating the resignation of trustees, and Gunter, 19 Ala. 731; Strong v. Willis, 3 Fla. 124; Thatcher v. Corder, 2 Keyes, 157; Armstrong v. Merrill, 14 Wall. 138.

1 Courtenay v. Courtenay, Jo. & Lat. 519; Foreshow v. Higginson, 20 Beav. 485; Greenwood v. Wakeford, 1 Beav. 576; Coventry v. Coventry, 1 Keen, 758; Cruger v. Halliday, 11 Paige, 314; Drane v. Gunter, 19 Ala. 731; Shepherd v. McEvers, 4 Johns. Ch. 136; Diefendorf v. Spraker, 10 N. Y. 246; Re Bernstein, 3 Redf. (N. Y.) 20.

2 Co. Litt. 9 a; 3 Cru. Dig. 318; Humphrey v. Morse, 2 Atk. 408. Creagh v. Blood, 3 Jon. & La. 170.

the proceedings to be had upon their death, for the preservation of the trust estates and the appointment of new trustees. If a person is appointed trustee and has neither accepted nor disclaimed during his life, it is an open question whether his heir or personal representative can disclaim after his death. The question was raised in Goodson v. Ellison, but was left undecided. Mr. Hill thinks that a disclaimer by the heir may be supported on principle. A later case seems strongly to imply that the heir cannot disclaim. If an acting trustee dies, a person named cotrustee with him may disclaim after his death, if the one disclaiming has done no act amounting to an acceptance.*

§ 270. It was the clear opinion of Lord Coke, that if a freehold vested in a person by feoffment, grant, or devise, it could not be divested except by matter of record; and this rule was established in order that a suitor might know, with more certainty, who was the tenant to the præcipe; 5 but, as a gift is not perfect in law until it is accepted by the assent of the donee, a disclaimer operates as evidence that the donee never assented, and consequently that the estate never vested in him. Accordingly, it is now established that a parol disclaimer is sufficient in all cases of a gift by deed or will of both real and personal estate. And so a trust may be repu

1 Goodson v. Ellison, 3 Russ. 583, 587.

2 Hill on Trustees, 222 (4th ed.)

King v. Phillips, 16 Jur. 1080.

Stacey v. Elph, 1 M. & K. 195.

5 Butler & Baker's Case, 3 Co. 26 a, 27 a; Anon. 4 Leon. 207; Shep. Touch. 285, 452; Bonifant v. Greenfield, Godb. 79; Siggers v. Evans, 5 El. & Bl. 380.

6 Townson v. Tickell, 3 B. & Al. 31; Stacey v. Elph, 1 M. & K. 198; Bonifant v. Greenfield, Cro. Eliz. 80; Smith v. Smith, 6 B. & C. 112; Begbie v. Crook, 2 Bing. N. C. 70; 2 Scott, 128; Shep. Touch. 282, 452; Smith v. Wheeler, 1 Ventr. 128; Thompson v. Leach, 2 Ventr. 198; Rex v. Wilson, 5 Man. & R. 140; Small v. Marwood, 4 Man. & R. 190; Foster v. Dawber, 1 Dr. & Sm. 172; Re Ellison's Trust, 2 Jur. (N. s.) 62;

diated without an express disclaimer, as by evidence of the conduct of the party amounting to a refusal of the office,1 or by any conduct inconsistent with an acceptance; and a disclaimer may be presumed after a long neglect to qualify or refusal to act.2 But the parol expressions of a refusal of the trust, or parol evidence of conduct inconsistent with an acceptance, must be unequivocal, and extend to a renunciation of all interest in the property; for if such refusal or conduct is coupled with a claim to the estate of another character, it will not amount to a disclaimer. But a person would act very imprudently who allowed so important a question, as whether he was a trustee or not, to be a matter of inference and construction from conversations or conduct.*

§ 271. A disclaimer should be by deed or other writing that admits of no ambiguity, and is certain evidence. And the instrument should be a disclaimer and not a conveyance; for if the trustee attempts to convey the estate, he may be held to have accepted the trust by the same act which was intended to be a refusal of the office. Although Lord Eldon expressed the opinion, which seems to be the common-sense view, that if the intention of the instrument is to disclaim, it ought to receive that construction, although it is in form a Doe v. Smith, 9 D. & R. 136; Bingham v. Clanmorris, 2 Moll. 253; Peppercorn v. Wayman, 5 De G. & Sm. 230; Doe v. Harris, 16 M. & W. 517; Thompson v. Meek, 7 Leigh, 419; Roseboom v. Moshier, 2 Denio, 61; Comm. v. Mateer, 16 Serg. & R. 416; Nicolson v. Wordsworth, 2 Swans. 369; Adams v. Taunton, 5 Madd. 435; Miles v. Neave, 1 Cox, 159; Sherratt v. Bentley, 1 Russ. & M. 655; Norway v. Norway, 2 M. & K. 278; Bray v. West, 9 Sim. 429.

1 Stacey v. Elph, 1 M. & K. 195; Ayres v. Weed, 16 Conn. 291; Thornton v. Winston, 4 Leigh, 152; Wardwell v. McDonell, 31 Ill. 364; Williams v. King, 43 Conn. 572 and cases cited.

2 Marr v. Peay, 2 Murph. 85.

Doe v. Smith, 6 B. & C. 112; Judson v. Gibbons, 5 Wend. 224.

4 Stacey v. Elph, 1 M. & K. 199; In re Tryon, 7 Beav. 496.

5 Stacey v. Elph, 1 M. & K. 199.

• Crewe v. Dicken, 4 Ves. 97; Urch v. Walker, 3 M. & C. 702.