trust is not already in the hands of or before the court by a pending suit. Thus the old trustees in a case for the exercise of their discretion may appoint any suitable person. The inquiry in such cases is not whether the person proposed is the most suitable, but whether he is suitable.2 It is generally the duty, however, of trustees to appoint new trustees, who are agreeable to the cestuis que trust, and who would administer the fund for their interest; to this end it is generally the duty of the trustees to consult the cestuis que trust, as to the appointment. And a new appointee ought to consult the cestuis que trust, before accepting the office. An appointment for the mere purpose of having a particular solicitor employed in the management of the trust ought not to be allowed. Generally the new trustees appointed under a power should be amenable to the jurisdiction of the court, but where the cestui que trust resides abroad, it may be proper to appoint trustees in the same jurisdiction with the beneficiary. Though if the court is called upon to exercise

pauper, or person incapable of performing the duties. It must be a person of full age, sufficient mental and legal capacity, and in all respects capable of performing the required duties. In case of trust property of real and personal estate, we are not prepared to say whether an alien, not naturalized, and not capable by law to hold real estate, would or would not be a suitable or legal appointment. We think the power was not exhausted by the appointment of the first substitute, but that the same power existed, on every resignation, to appoint a new trustee, pursuant to the original trusts; but that this power, by necessary implication, was limited to the appointment of a person legally capable of executing it." Whether the nomination of her husband, on account of the conjugal relation, would have been incompatible with the scope of the whole instrument, and would be a valid objection, or whether the fact that another appointee was a foreigner having no domicile in the United States, an alien not naturalized, would be a valid objection, the court did not decide, because the nominations were withdrawn.

1 Ante, § 293.

2 Ante, § 278.

3 O'Reilly v. Alderson, 8 Hare, 101; Marshall v. Sladden, 7 Hare, 428; Peatfield v. Benn, 17 Beav. 522; Nagle's Est. 52 Pa. St. 154. 5 Marshall v. Sladden, 7 Hare, 428.

4 Ibid.

• Meinertzhagen v. Davis, 1 Col. C. C. 335; Ex parte Tunno, 1 Bail.

the power, it will not appoint trustees out of its jurisdiction.1 Nor is the appointment of one of the cestuis que trust proper, as each of the cestuis que trust has a right to a disinterested and impartial trustee.2 This rule probably only affects the parties to the trust; for if a cestui que trust should be appointed, and should sell the estate under a power of sale, the purchaser would be protected. Cestuis que trust are not absolutely incapacitated to take the trusts, and courts themselves sometimes appoint them; but it is not generally desirable. So, near relationship is not a disqualification; but it is almost always better to have a capable person not intimately connected with the cestuis que trust.5 Nor should the donee of a power to appoint nominate himself, for trustees cannot even pay over the assets to one of their own number.6 It is said, however, that if a trust with power of appointment is committed to trustees and the survivor of them, his executors or administrators, and the trustees all die, the appointment is in the executor of the survivor; and, as the instrument of trust declares him to be a proper person to execute the trust, he may appoint himself under the power. Mr. Lewin, however, says that "the exercise of every power should be regulated by the circumstances as they stand at the time, and that the limitation to executors cannot dispense with the discretion to be applied afterwards." 7

1 Guibert's Trust, 13 Eng. L. & Eq. 372. But see Ex parte Tunno, 1 Bail. Eq. 395.

2 Passingham v. Sherborne, 9 Beav. 424.

Reid v. Reid, 30 Beav. 388.

4 Ex parte Clutton, 17 Jur. 988; 21 Eng. L. & Eq. 186; Ex parte Conybeare's Settlement, 1 W. R. 458; Make v. Norrie, 21 Hun (N. Y.), 128. 5 Wilding v. Bolder, 21 Beav. 222; where the husband of a cestui que trust was appointed trustee, the court required him to undertake to apply for the appointment of a new trustee in case he became sole trustee, 18 W. R. 416; 21 L. T. (N. s.), 781.

6

v. Walker, 5 Russ. 7; Stickney v. Sewell, 1 M. & C. 14; Westover v. Chapman, 1 Col. C. C. 177.

Lewin on Trusts, 472 (5th Lond. ed.).

CHAPTER X.

NATURE, EXTENT, AND DURATION OF THE ESTATE TAKEN BY TRUSTEES.

§ 298. Where trustees take and hold no estate, although an express gift is made to them. Statute of uses.

§ 299. Effect of the statute of uses upon conveyancing in the several States.

§300. Effect of the statute in the rise of trusts.

§§ 301, 302. Rules of construction which gave rise to trusts.

§ 303 The word "seized."

§304. The primary use must be in the trustee to raise a trust.

§§ 305, 306. Personal property not within the statute.

§§ 307, 308. Where the statute executes trusts as uses, and where it does not.

$309. Where a charge upon an estate will vest an estate in trustees, and where not.

§ 310. Where the trust is for the sole use of a married woman.

§ 311. Trusts of personalty are not executed by the statute.

§ 312. The statute only executes the exact estate given to the trustee; but the trustee may take an estate commensurate with the purposes of the trust where it is unexecuted by the statute. Rules.

§§ 313, 314.

Courts may imply an estate in the trustee where none is given. §§ 315, 316. May enlarge the estate of the trustee for the purposes of the trust. § 317. Illustrations, explanations, and modifications of the rule.

§§ 318, 319. Rule in respect to personal estate.

§ 320. Distinctions between deeds and wills in England and the United States.

§ 298. Ir may happen that although words of express trust are used in the grant or bequest of an estate to a trustee, yet no estate vests or remains in the trustee. Thus, if A. grants or bequeaths land to B. and his heirs, in trust for C. and his heirs, the trustee, B., will take nothing in the land, but the legal title, as well as the beneficial use, will vest immediately in C.; for the statute of uses,2 so called, executes the posses

1 Austin v. Taylor, 1 Eden, 361; Williams v. Waters, 14 M. & W. 166; Robinson v. Grey, 9 East, 1; Chapman v. Blissett, Ca. t. Talbot, 150; Broughton v. Langley, 2 Salk. 150; 2 Ld. Raym. 873; Thatcher v. Omans, 3 Pick. 521; Upham v. Varney, 15 N. H. 466; Kinch v. Ward, 2 Sim. & St. 409; and see Doe v. Biggs, 2 Taunt. 109; Shapland v. Smith, 1 Bro. Ch. 75, and notes; Boyer v. Cockerell, 3 Kan. 282; Witham v. Brooner, 63 Ill. 344.

sion and the legal title in the same person to whom the beneficial interest is given. As stated in previous sections,1 a large part of the land in England was at one time held to uses. The legal title was in one person, but upon the trust and confidence that such person would apply it to the use of some person named, or that such legal owner would permit some other person to have the possession, use, and income of the estate. This system, originating partly in fraud of the law, and partly in the necessities and convenience of the subject, became at last the source of great abuses. To remedy these abuses, the statute of uses was enacted. This statute executes the use by conveying the possession to the use, and transferring the use into possession, thereby making the cestui que use complete owner of the estate, as well at law as in

1 Ante, §§ 3, 4.

2 Ante, §§ 5, 6, 7. And see the preamble of the statute. The first section of the statute was as follows: "That where any person or persons stand or be seized, or at any time hereafter shall happen to be seized of and in any honors, castles, manors, lands, tenements, rents, services, reversions, remainders, or other hereditaments, to the use, confidence, or trust of any other person or persons, or of any body politic, by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, agreement, will, or otherwise, by any manner of means whatsoever it be; that in every such case, all and every such person and persons, and bodies politic that have or hereafter shall have any such use, confidence, or trust in feesimple, fee-tail, for term of life, or for years, or otherwise, or any use, confidence, or trust in remainder or reverter, shall from henceforth stand and be seized, deemed and adjudged, in lawful seizin estate and possession, of and in the same honors, castles, manors, lands, tenements, rents, services, reversions, remainders, and hereditaments, with their appurtenances, to all intents, constructions, and purposes, in the law of and in such like estates, as they had or shall have in use, trust, or confidence of or in the same; and that the estate, title, right, and possession that was in such person or persons that were or hereafter shall be seized of any lands, tenements, or hereditaments, to the use, confidence, or trust of any such person or persons, or of any body politic, be from henceforth clearly deemed and adjudged to be in him or them, that have, or hereafter shall have, such use, confidence, or trust after such quality, manner, form, and condition as they had before, in or to the use, confidence, or trust that was in them." Saund. on Uses, 70–82.

equity. It does not abolish the conveyance to uses, but only annihilates the intervening estate, and turns the interest of the cestui que use into a legal instead of an equitable estate.1 A use, a trust, and a confidence is one and the same thing, and if an estate is conveyed to one person for the use of, or upon a trust for, another, and nothing more is said, the statute immediately transfers the legal estate to the use, and no trust is created, although express words of trust are used.2 So absolute is the statute that it will operate upon all conveyances in the words above stated, although it was the plain intention of the settlor that the estate should vest and remain in the first donee; for the intention of the citizen cannot control express enactments of the legislature,3 or positive rules of property.

§ 299. The statute of uses is in force in most of the United States, but where the statute is not in force either by adoption or by re-enactment, and even where it is expressly repealed and a form of deed is enacted, a knowledge of the law of uses is necessary in order to understand and apply the common forms of conveyance.5 The statute of uses, and the doctrines it established are so interwoven with the history of every American State, and with the growth of its jurispru

1 Eustace v. Seamen, Cro. Jac. 696; 2 Black. Com. 333, 338; Thatcher v. Omans, 3 Pick. 529; Hutchins v. Heywood, 50 N. H. 495.

2 Terry v. Collier, 11 East, 377; Right v. Smith, 12 East, 454; Broughton v. Langley, 2 Salk. 679; Ease v. Howard, Pr. Ch. 338, 345; Hammerston's Case, Dyer, 166 a, note; Ramsay v. Marsh, 2 McCord, 252; Moore v. Shultz, 13 Pa. St. 98; Jackson v. Fish, 10 Johns. 456; Parks v. Parks, 9 Paige, 107.

3 Carwardine v. Carwardine, 1 Ed. 36; Gregory v. Henderson, 4 Taunt. 772. In this case the intent of the testator was loosely talked of, but it was an active trust, as pointed out by Heath, J. Doe v. Collier, 11 East, 377; Shapland v. Smith, 1 Bro. Ch. 75; 1 Sugd. Ven. 309, 314.

44 Kent, Com. 299; 1 Green. Cru. tit. 11, Use, c. 3, § 3, note.

5 Walk. Am. Law, 311; Helfensteine v. Garrard, 7 Ohio, 275; 2 Washb.

on Real Prop. 152.