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§ 345. It has been before stated that a general assignment for creditors does not pass a trust estate. In such case, it requires special words to vest the estate in an assignee. So an assignment in bankruptcy of all the trustee's property does not pass estates which the bankrupt holds in trust.1 If the bankrupt by a breach of trust has converted the trust estate into other property, the cestui que trust may follow it into the hands of the assignee, so far as he can identify the particular property obtained by breach of the trust. But if the trust property has become so amalgamated with the general mass of the bankrupt's estate that it cannot be traced or identified, the cestui que trust must prove his claim.3 If an assignee should get possession of the trust estate, and refuse to restore it, the trustee, though a bankrupt, may maintain a suit for its restoration, or the cestui que trust may have a bill for the appointment of new trustees, and the conveyance of the property to them. But if a bankrupt trustee has a beneficial interest in the trust property, it will pass to his assignee; and the assignee will hold the bank rupt's beneficial interest in trust for his creditors, and the remainder of the property in trust for the other parties beneficially interested.5

§ 346. It is now a universal rule that all those who take under the trustee, except purchasers for a valuable consideration without notice, take subject to the trust, and they must either execute the trust themselves, or convey the property to new trustees appointed by the court. Thus the heir, executor, administrator, devisee, and the assignee by deed

1 Ante, § 336; Scott v. Surman, Willes, 402.

2 Taylor v. Plumer, 3 M. & S. 562; Ex parte Sayers, 5 Ves. 169.

8 Ex parte Dumas, 1 Atk. 232; Ryall v. Rolle, ib. 172; Scott v. Surman, Willes, 403.

Winch v. Keely, 1 T. R. 619; Carpenter v. Marnell, 3 B. & P. 40.

5 Carpenter v. Marnell, 3 B. & P. 40; Parnham v. Hurst, 8 M. & W. 743; D'Arnay v. Chesneau, 13 M. & W. 809; Leslie v. Guthrie, 1 Bing. N. C. 697; Boddington v. Castelli, 1 El. & Bl. 879.

or in bankruptcy, are bound by the trust; so are those who take dower or curtesy in the trust estate, or a creditor who levies an execution upon it. If the trust estate is forfeited to the crown or the State, it is still subject to the trust; so if it escheats upon the failure of heirs. But a disseizor is not an assignee of the trustee; he holds a wrongful title of his own, adversely to the trust. The cestui que trust has no remedy in such case, except to procure the trustee to bring an action upon his legal title to recover the possession. The cestui que trust could not maintain a suit in equity to compel the disseizor to hold upon the same trusts as the trustee; for there is no privity between the disseizor and disseizee.1 The only remedy of the cestui que trust is against the trustee; and if he refuses to bring an action to recover the estate, he may be removed and a new trustee appointed.

§ 347. Where the legal and equitable estate in the same land becomes vested in the same person, the equitable will merge in the legal estate; for a man cannot be a trustee for himself, nor hold the fee, which embraces the whole estate, and at the same time hold the several parts separated from the whole. But in order that this may be true, the two estates must be commensurate with each other; or the legal estate

1 Finch's Case, 4 Inst. 85; Gilbert on Uses by Sugd. 249; Reynolds v. Jones, 2 Sim. & S. 206; Turner v. Buck, 22 Vin. Ab 21; Doe v. Price, 16 M. & W. 603. But the cestui que trust is the beneficial owner, and the court will protect him in an entry and occupation against a stranger. Oatman v. Barney, 46 Vt. 594.

2 Wade v. Paget, 1 Bro. Ch. 363; Selby v. Alston, 3 Ves. 339; Philips v. Brydges, ib. 126; Goodright v. Wells, Doug. 771; Finch's Case, 4 Inst. 85; Harmood v. Oglander, 8 Ves. 127; Creagh v. Blood, 3 Jones & L. 133; James v. Morey, 2 Cow. 246; Mason v. Mason, 2 Sandf. Ch. 433; James v. Johnson, 6 Johns. Ch. 417; Cooper v. Cooper, 1 Halst. Ch. 9; Healy v. Alston, 25 Miss. 190; Brown v. Bontee, 10 Sm. & M. 268; Lewis v. Starke, ib. 128; Nicholson v. Halsey, 1 Johns. Ch. 422; Butler v. Godley, 1 Dev. 94; Hopkinson v. Dumas, 42 N. H. 306; Gardner v. Astor, 3 Johns Ch. 53; Downes v. Grazebrook, 3 Mer. 208; Ayliff v. Murray, 2 Atk. 59; Wills v. Cooper, 1 Dutch. N. J. 137; Habergham v. Vincent, 2 Ves. Jr. 204.

must be more extensive or comprehensive than the equitable. The equitable fee cannot merge in a partial or particular legal estate.1 And there will be no merger, if it is contrary to the intention of the parties.2 If A. should convey lands to B. in trust for C. and her heirs, and C. should be the heir of B., upon the death of B. the legal title would descend to C., and thus both the legal and equitable title would meet in C.; but if C. was a married woman, and it was plainly the intention of the grantor or settlor, to be gathered from the whole instrument, that the trust should not cease, but continue an active trust, the court would not allow the equitable estate to merge in the legal, but a new trustee would be appointed to take the legal title. Of course, in law the estates will merge wherever the interests meet; but courts of equity will preserve the estates separate, where the rights or interests of the parties require it. If the trustee acquires the equitable interest by any breach of his duty, or by fraud, courts will not allow it to merge.* So if there are intervening heirs who would be squeezed out, the estates will not merge. So if the legal estate comes to the cestui que trust by a conveyance which turns out to be void, there will be no merger. Whether charges upon an estate, as mortgages,

1 Selby v. Alston, 3 Ves. 339; Hunt v. Hunt, 14 Pick. 374; Donalds v. Plumb, 8 Conn. 453; James v. Morey, 2 Cow. 284; Goodright v. Wells, Doug. 771; Philips v. Brydges, 3 Ves. 125; Robinson v. Cuming, t. Talbot, 164; 1 Atk. 475; Boteler v. Allington, 1 Bro. Ch. 72; Buchanan v. Harrison, 1 Jon. & Hen. 662; Merest v. James, 6 Madd. 118; Habergham v. Vincent, 2 Ves. Jr. 204.

2 Gardner v. Astor, 3 Johns. Ch. 53; James v. Morey, 2 Cow. 246; Mechanics' Bank v. Edwards, 1 Barb. S. C. 272; Starr v. Ellis, 6 Johns. Ch. 393; Donald v. Plumb, 8 Conn. 453; Den v. Vanness, 5 Halst. 102; Hunt v. Hunt, 14 Pick. 374; Nurse v. Yerwarth, 3 Swans. 608; Saunders v. Bournford, Finch, 424; Thom v. Newman, 3 Swans. 603; Mole v. Smith, Jac. 490.

8 Ibid.

* 1 Spence, Eq. Jur. 572.

Lewis v. Stark, 10 Sm. & M. 128.

• Elliott v. Armstrong, 2 Blackf. 208; Buchanan v. Harrison, 1 John. & H. 662; Brandon v. Brandon, 31 L. J. Ch. 47.

will merge in the legal title, upon being paid off, depends upon the intention of the parties, and frequently upon the interests and equities between them. If a leasehold is held by a wife in her right, but is in the occupation of her husband, and he purchases the reversion, there will be no merger.2

§ 348. Thus if a tenant for life pays off a charge or incumbrance upon an estate, it will be considered that, as his interest ceases with his life, he could never have intended that the charge should be extinguished, and not survive for the benefit of his representatives. And the same rule applies, though the tenant for life may be ultimately entitled to the reversion in fee, subject to remainders which fail. Even in this case, evidence may be given that the tenant for life intended the charge to be merged and extinguished. A tenant in tail in possession has the power to convert the estate into an absolute fee; therefore, if he pays off an incumbrance, the presumption is that he intended it to merge. But if the estate of the tenant in fee-simple or in

1 Hunt v. Hunt, 14 Pick. 374; Johnson v. Webster, 4 De G., M. & G. 474; Tyrwhitt v. Tyrwhitt, 32 Beav. 244; Morley v. Morley, 25 L. J. Ch. 1; Compton v. Oxenden, 2 Ves. Jr. 264; Forbes v. Moffatt, 18 Ves. 390; Horton v. Smith, 4 K. & J. 630; Tomlinson v. Steers, 3 Mer. 210; Smith v. Phillips, 1 Keen, 694; Medly v. Horton, 14 Sim. 226; Brown v. Stead, 5 Sim. 535; Parry v. Wright, 1 S. & S. 369; 5 Russ. 542; Mocatta v. Murgatroyd, 1 P. W. 193; Greswold v. Marsham, 2 Ch. Ca. 170; Garnett v. Armstrong, 2 Conn. & Laws. 458; Watts v. Symes, 16 Sim. 646; Cooper v. Cartwright, 1 John. 679.

2 Clark v. Tennison, 33 Md. 85.

Pitt v. Pitt, 22 Beav. 294; Burrell v. Egremont, 7 Beav. 205; Redington v. Redington, 1 B. & B. 139; Faulkner v. Daniel, 3 Hare, 217; State v. Kock, 47 Mo. 582.

675.

Wyndham v. Egremont, Amb. 753; Trevor v. Trevor, 2 Myl. & K.

Astley v. Milles, 1 Sim. 298.

6 St. Paul v. Dudley, 15 Ves. 173; Buckinghamshire v. Hobart, 3 Swans. 199; Jones v. Morgan, 1 Bro. Ch. 206.

tail is subject to any executory limitations that may defeat their estate, or if they pay off the charges under any mistake as to their title, the court would not allow the charges to merge or become extinguished.1 But if a person pays or takes up the charges or incumbrances, and afterwards the legal title should come to him, the charges would merge.2 So if a person, having the legal title and holding charges and incumbrances upon the estate, conveys in fee or in mortgage, and makes no mention of the charges or incumbrances, they would merge as between the grantor and grantee. Generally, where the owner in fee-simple pays off a charge or incumbrance on an estate, the presumption of law is that such charge or incumbrance will merge; but if he owns only a partial interest, the presumption is that the charge was to be kept on foot.5 Mere possession of the property by the trustee or by the cestui que trust is no evidence of a merger.6

§ 349. Sometimes where an estate has been vested by deed or will in trustees for a cestui que trust, whether it is a fee or some lesser estate, the law will presume that the trustees have surrendered, conveyed, or assigned the estate, whatever it was, to the cestui que trust. This presumption

1 Drinkwater v. Combe, 2 S. & S. 340; Shrewsbury v. Shrewsbury, 3 Bro. Ch. 120; 1 Ves. Jr. 227; Wigsell v. Wigsell, 2 S. & S. 364; Horton v. Smith, 4 K. & J. 624; Buckinghamshire v. Hobart, 3 Swans. 199; Kirkham v. Smith, 1 Ves. 528.

2 Horton v. Smith, 4 K. & J. 624; Trevor v. Trevor, 2 Myl. & K. 675; Wigsell v. Wigsell, 2 S. & S. 364.

8 Tyler v. Lake, 4 Sim. 351; Johnson v. Webster, 4 De G., M. & G. 474.

4 Hood v. Phillips, 3 Beav. 513; Pitt v. Pitt, 22 Beav. 294; Gunter v. Gunter, 23 Beav. 571; Swinfen v. Swinfen, 29 Beav. 199; Tyrwhitt v. Tyrwhitt, 32 Beav. 244.

5 Price v. Gibson, 2 Ed. 115; Swinfen v. Swinfen, 29 Beav. 199; Compton v. Oxenden, 2 Ves. Jr. 263; Donisthorpe v. Porter, 2 Ed. 162.

Broswell v. Downs, 11 Fla. 62.

7 England v. Slade, 4 T. R. 682; Wilson v. Allen, 1 J. & W. 611;

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