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and that it was only a post mortem conveyance.1 On the other hand, it is said that there is a wide distinction between a conveyance and a devise. That during the trustee's lifetime there was a personal trust and confidence in his discretion, which he could not delegate; that the settlor could have reposed no confidence in the heir, for he could not know beforehand who the heir would be; that if the estate was allowed to descend, it might become vested in married women, infants, bankrupts, or persons out of the jurisdiction of the court; and that therefore it could not be a breach of trust for a trustee to devise the estate by will to persons capable of executing it, or of transferring it to other trustees.2 Mr. Lewin concludes from these observations, that whether the devise of the trust estate is proper or not depends upon the circumstances of each case. If the heir is a fit person to execute the trust, the testator ought not to intercept the descent and pass the legal estate to another, and especially not to an unfit person. In such case the estate of the testator might be liable for the costs of restoring the trust estate to its proper channel or to proper trustees. If, however, the heir is an unfit person, as an infant, bankrupt, insolvent, lunatic, married woman, or out of the jurisdiction, it may be proper to devise the estate. And this seems to be the result of the authorities.*

§ 340. It does not follow that the devisee can execute the trust from the fact that the legal title is devised to him, nor does it follow that the heir can execute the trust from the fact that the legal title descends to him. How far either can execute the trust depends upon the intention of the settlor,

1 Cook v. Crawford, 13 Sim. 98; and see Beasley v. Wilkinson, 13 Jur. 649.

2 Titley v. Wolstenholme, 7 Beav. 435; Macdonald v. Walker, 14 Beav 556; Wilson v. Bennett, 5 De G. & Sm. 479.

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to be gathered from the terms of the instrument.1 Thus, if an estate is so vested in A. that A. alone shall personally execute the trust, neither the heir nor the devisee of A. could execute it, although holding the legal title.2 As if an estate is vested in A. and his heirs upon a trust to sell, and A. devises the estate, neither the heir nor the devisee can sell: for the heir has nothing in the estate to sell, it having gone to the devisee; and the devisee has no power, he not being mentioned in the original settlement. So, where property was vested in two trustees, their executors and administrators in trust, and the surviving trustee devised the property to A. and B., and appointed A., B., and C. executors, the court refused to hand over the property to A. and B. for the reason that devisees were not named as parties who could execute the trust; and the court refused to hand it over to the executors for the reason that the legal title was given away from them; new trustees were therefore appointed to receive the property and execute the trust. But where the word assigns is part of the limitation of the estate to trustees, as where an estate is vested in A., his heirs, executors, administrators, and assigns in trust, and A. devises the estate, the devisee may execute the trust, for the reason that he comes within the limitation of the persons who may take the trust property and execute the trust. This principle has been doubted and criticised, but it seems to be acted upon in the English courts.7

1 Abbott, Pet'r,. 55 Me. 580.

2 Mortimer v. Ireland, 6 Hare, 196; 11 Jur. 721; Ockleston v. Heap, 1 De G. & Sm. 640.

Ibid.; Cook v. Crawford, 13 Sim. 91; Stevens v. Austen, 7 Jur. (N. s.) 873; Wilson v. Bennett, 5 De G. & Sm. 475.

4 Re Burtt's Est. 1 Dr. 319; Macdonald v. Walker, 14 Beav. 556. Titley v. Wolstenholme, 7 Beav. 425; Saloway v. Strawbridge, 1 K.

& J. 371; 7 De G., M. & G. 594.

6 Ockleston v. Heap, 1 De G. & Sm. 642.

7 Mortimer v. Ireland, 6 Hare, 196; 11 Jur. 721; Ashton v. Wood, 3 Sm. & Gif. 436; Hall v. May, 3 K. & J. 585; Lane v. Debenham, 11 Hare,

§ 341. In New York, Michigan, Wisconsin, Alabama, and Missouri, trust property, upon the death of the surviving trustee, does not descend to the heir, nor can it be devised, but it vests in the court, and will be administered by the court by the appointment of new trustees to execute the trust.1 In the other States the trust estate descends to the heir, or vests in the devisee, as the legal title must go somewhere in the absence of a statute, upon the death of the surviving trustee.2 Courts in the United States do not have occasion often to consider the question, whether the heir or devisee can execute the trust, as new trustees can be appointed in any case at the desire of the parties, and, in many States, the trust property may be vested in the new trustees by an order of the court. In most cases, it would simply be a question whether the words of the will were comprehensive enough to pass the trust estate, or whether it had descended to the heir; and this question would be important only in determining who should make a conveyance of the trust property to the new trustees, if it became necessary that a conveyance should be made.

§ 342. If an owner of real estate contracts to sell it, he becomes a trustee of the legal title for the vendee; and if he dies before conveying the legal title, it will descend to his heir or heirs, as the legal title must vest somewhere; and so he may devise it; and the heir, in case it descends, and the devisee, in case it is devised, may be called upon to convey

1 Clark v. Crego, 47 Barb. 597; Hawley v. Ross, 7 Paige, 103; McCosker v. Brady, 1 Barb. Ch. 329; People v. Morton, 5 Seld. 176; McDougald v. Cary, 38 Ala. 320; Hook v. Dyer, 47 Mo. 241. This rule is confined to real property. Trusts in personal property are governed by the ordinary rules that apply to them in other States. Bucklin v. Bucklin, 1 N. Y. Dec. 242.

2 Trusts of real estate, on the death of the trustee, vest in the heir, trusts of personalty in the executor or administrator. Schenck v. Schenck, 16 N. J. Eq. 174.

it to the vendee. In Massachusetts, there is a statute, authorizing the vendor's executor or administrator to convey such estate, under the direction of the Court of Probate.2

§ 343. Trust property is generally limited to trustees, as joint-tenants; and if by the terms of the gift it is doubtful, whether the trustees take as joint-tenants, or tenants in common, courts will construe a joint-tenancy if possible, on account of the inconvenience of trustees holding as tenants in common; and, where statutes have abolished joint-tenancy, an exception is generally made in the case of trustees. And courts will not allow a process for the partition of a trust estate. Therefore, upon the death of one of the original trustees, the whole estate, whether real or personal, devolves upon the survivors, and so on to the last survivor; and upon the death of the last survivor, if he has made no disposition of the estate by will or otherwise, it devolves upon his heirs, if real estate, and upon his executors or administrators if it is personal estate. The title in the surviving trustee is complete, and no breaches of trust after the death of his cotrustees can be charged upon their estate; 5 nor can the representatives of his cotrustees interfere with his management of the trust estate, even if he is insolvent or unfit for the trust. The cestui que trust alone can interfere or apply to the court for redress or relief. So all rights of action are in the surviving

1 Wall v. Bright, 1 J. & W. 494; Read v. Read, 8 T. R. 118.

2 Gen. Stat. c. 117, §§ 5 and 6; Reed v. Whitney, 7 Gray, 533.

3 Baldwin v. Humphrey, 44 N. Y. 609; Saunders v. Schmaelzle, 49 Cal. 59.

↑ Whiting v. Whiting, 4 Gray, 236; Moses v. Murgatroyd, 1 Johns. Ch. 119; De Peyster v. Ferrars, 11 Paige, 13; Shook v. Shook, 19 Barb. 653; Shortz v. Unangst, 3 W. & S. 45; Gray v. Lynch, 8 Gill, 404; Mauldin v. Armstead, 14 Ala. 702; Powell v. Knox, 16 Ala. 364; Richeson v. Ryan, 15 Ill. 13; Stewart v. Pettus, 10 Mo. 755; Jenks v. Backhouse, 1 Binn. 91; King v. Leach, 2 Hare, 59; Watkins v. Specht, 7 Coldw. 585; Webster v. Vanderventer, 6 Gray, 429.

5 See post, § 426.

• Shook v.

Shook, 19 Barb. 653.

trustee, and he may sue in his own name or as survivor, according as the cause of an action accrued before or after the death of his cotrustees; and, in case of his death, his executor or administrator may continue the action. The rule is that actions must be brought in the names of the parties to the contract.3

§ 344. So absolute is the rule that the heir or administrator takes the trust property upon the death of the last surviving trustee, that a husband, as administrator of his wife, takes the personal property that she held in trust, but he must hold it upon the original trust. In England, the heir, in case of real estate in trust, or the executor, in case of personal, is competent to administer and execute the trusts, but they cannot execute discretionary trusts confided personally to the original trustee, unless the power and confidence are also confided in them by the instrument. In the United States, the heirs or executors will take the trust property, and they must settle the accounts of the testator in relation to the trust. They must also see that the property is protected and preserved, but they are not under any obligation to execute the trust. They may decline the office, and generally the court will appoint new trustees to succeed to the original trustees. If the heirs or executors continue to act as trustees, they will be liable for no past breaches of trust, but only for breaches that occur under their own management.

1 Richeson v. Ryan, 15 Ill. 13; Wheatley v. Boyd, 7 Exch. 20.

2 Nichols v. Campbell, 10 Gratt. 561; Powell v. Knox, 16 Ala. 364; Mauldin v. Armstead, 14 Ala. 702.

Robins v. Deshon, 19 Ind. 204; King v. Lawrence, 14 Wis. 238; Farrell v. Ladd, 10 Allen, 127; Childs v. Jordan, 106 Mass. 323.

Ante, § 264; Kuster v. Howe, 3 Ind. 268.

Ante, § 264; Mansell v. Mansell, Wilm. 36; Cook v. Crawford, 13 Sim. 91; Hall v. Dewes, Jac. 189; Peyton v. Bury, 2 P. Wms. 626; Bradford v. Belfield, 2 Sim. 264; Cole v. Wade, 16 Ves. 45; Sharp v. Sharp, 2 B. & A. 405. See Townsend v. Wilson, 1 B. & A. 608.

Baird's App. 3 W. & S. 459; Schenck v. Schenck, 1 Gren. Ch. 174; Hill v. State, 2 Ark. 604.

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