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Lutwych v.
Winford,
2 Bro. R. 248.

Where the Receipt of the Trustee

is sufficient.

Anon.

29. In a case where lands were directed by will to be sold for payment of debts; and a decree made in Chancery, that the estate should be sold for that purpose; a purchaser under the decree refused to complete his purchase, because more of the estate was sold than was necessary. Lord Thurlow said"If the Master, in selling the whole, has consulted the convenience of the estate; he has acted right. The power given to the trustees was to sell the whole, or such part as might be expedient. The Court has decreed in the same way; and the Master, with the consent of the parties interested, has sold the whole. A purchaser cannot come in to object to it." The objection was over-ruled.

30. An opinion has long prevailed, that in all cases where land is vested in a trustee to be sold, the trustee is competent to give a discharge for the purchase money that the rule affecting a purchaser with misapplication of the trust money, only applies where there is no hand appointed to receive it. As in the case of a specific charge on the lands, in the hands of the heir or devisee; there a purchaser dealing with such heir or devisee, is bound to see that such charge is satisfied. This opinion is founded on the following authorities.

31. A

person

limited an estate to trustees, for pay1 Salk. 153. ment of debts and legacies. The trustees raised the

whole money; and the heir prayed to have the land. This was opposed, because the trustees had not applied the money, but converted it to their own 'use; so that the debts and legacies remained unpaid. It was determined by the House of Lords, that the heir should have the land discharged; and the legatees should take their remedy against the trustees. For the estate was debtor for the debts and legacies,

but not for the faults of the trustees: therefore was only liable so long as the debts and legacies might be paid. Where the land had once borne its burthen, and the money was raised, it was discharged; and the trustees liable.

Baker, Trin.

378. 3d ed.

32. A purchaser objected to the title to an estate Cuthbert v. which was vested in a trustee, in trust to sell, and 1790. to divide the money amongst the children of certain Sugd. Vend. persons; on the ground that he would be liable to encounter the inconveniences of seeing to the application of his purchase money. Lord Thurlow decreed a specific performance of the agreement; and refused to give the purchaser his costs.

Balfour v.

Welland,

33. Lord Kenyon, when Master of the Rolls, in- 4 Ves. 99. clined strongly to the opinion, that where trustees have power to sell, they must have the power incident to the character, namely, the power to give a discharge for the purchase money. And in a late case, where a purchaser objected to a title, on the ground 16 Ves. 151. that he was bound to see to the application of the money, Sir W. Grant over-ruled the objection upon another ground. But said "I think the doctrine upon that point has been carried farther than any sound equitable principle will warrant. Where the act is a breach of duty in the trustee, it is very fit that those who deal with him should be affected by an act tending to defeat the trust of which they have notice. But where the sale is made by the trustee in performance of his duty, it seems extraordinary that he should not be able to do what one should think incidental to the right exercise of his power: that is, to give a valid discharge for the purchase money.

34. It is the usual practice to insert a clause in all deeds and wills, by which trustees are enabled to

Crewe v.
Dicken,

4 Ves. 97.

Trustees have
equal Power,
&c.

Fellows v.
Mitchell.

sell lands, declaring that their receipts shall be a sufficient discharge to the purchasers; who shall not be answerable or accountable for the misapplication or non-application of the purchase money. And it is fully settled, that where a clause of this kind is inserted in a deed or will, by which trusts are created, trustees may make a good title to a purchaser. But in a case of this kind, all the trustees must join in the receipt.

35. Mrs. Crewe conveyed an estate to the use of herself for life, remainder to three persons, their heirs and assigns, in trust to sell; with a proviso that the receipts of those three persons should be a sufficient discharge to the purchasers. One of the trustees died; another refusing to act, conveyed his interest to the remaining trustee, who sold the estate. The purchaser refused to take the title, unless the trustee who had conveyed his interest would join in the receipt for the purchase money, which he declined.

Lord Rosslyn said, he must allow the objection: if the trustee had renounced, he might dissent; for then the whole estate would have been in the remaining trustee. But according to the way they had managed it, he had accepted the trust, and conveyed away the estate. That part of the trust that consisted in the application of the money, he could not convey away. The purchaser taking the title with the knowledge of the trust, would be bound to see to the application of the money.

36. Trustees have all equal power, intérest, and authority; they eannot act separately, but must all IP.Wms. 81. join, both in conveyances and receipts. But although two trustees join in a receipt, where the money is in fact paid to one of them only, yet the trustee who

Vide Treat.

of Eq. B. 2. c. 7. § 5.

actually received the money will in general only be accountable.

37. In all deeds by which trusts are created, a clause is inserted, that each trustee shall be accountable for such sums only, as shall actually come to his hands. And it has been determined, in a modern Bartlett v. case, that this does not bind the trustees as a covenant, Hodgson, but is a clause of indemnity: and the sense of it is this, 42. that the trustees and their heirs shall not be accountable for more than they receive.

1 Term. R.

from the

38. The Court of Chancery will not in any case Can derive permit a trustee to derive any benefit from the trust. no Benefit Therefore if a trustee compounds a debt, or buys it Trust. for less than is due upon it, he shall not derive any 3 P. Wms. advantage to himself from such a transaction. But 251. where a trustee releases or compounds a debt, if it v. Ross, appear to have been done for the benefit of the trust, the trustee will be excused.

Forbes

1 Bro. R.

130.

reimburse

Smith v.

39. Wherever trustees are guilty of a breach of Bound to trust, the Court of Chancery will compel them to the Cestui reimburse the cestui que trust for any loss which he que Trust. may have sustained. Thus if a trustee sells the French, estate, he will be compelled in equity to make a full 2 Atk. 243. compensation to the cestui que trust: and if a trustee conceals any act done by his co-trustee, which Boardman v. amounts to a breach of trust, he will thereby make 1 Bro. R. 68. himself equally liable.

Mossman,

384.

40. Lord Hobart is said to have been of opinion, that 1 Ab. Eq. an action at law might be maintained against a trustee for breach of trust. This is not consistent with Lord Hardwicke's definition of a trust; namely, that it is 2 Atk. 612. such a confidence between parties, that no action at law will lie; but is merely a case for the consideration of a court of equity. It is however observable that even in equity the cestui que trust is considered only as a

2 Atk. 19.

Forrest, 109. simple contract creditor, in respect of such breach of trust; unless the trustee has acknowledged the debt to the trust estate, under his hand and seal.

Perry v. Philips, ante, c. 1.

Montfort v.
Cadogan,
17 Ves. 485.

Have no Al

41. It is usual to insert in all deeds by which trusts are created, 'a clause that the trustees shall not be answerable for any misfortune, loss, or damage, which may happen in the execution of the trusts, unless they arise from their own wilful default. But courts of equity charge trustees, and also their representatives, with the consequences of a breach of trust, whether they derive a benefit from the trust or not.

42. It is an established rule that a trustee shall have lowance for no allowance for his care and trouble in the execution Trouble.

Treat. of Eq. of the trust; for on pretences of this kind the trust B.2.c.7. §3. estate might be impoverished; besides the great difficulty there might be in adjusting the quantum of such allowances; as one man's time may be more valuable than another's. Nor can there be any hardship in this; because every person who is appointed a trustee, may choose whether he will accept the trust

Ellison v.
Airey,

1 Ves. 112.

or not.

43. But in a case where there was a direction in a will that the trustees should be paid for their trouble, as well as expence; and it being objected that this might be of general prejudice, Lord Hardwicke said, this was a legacy to the trustees, to whom the testator might give satisfaction, if he pleased. In Serjeant Hall's will, Sir Richard Hopkins's, and the Duchess of Marlborough's, there was a great allowance made to the trustees for their trouble, and no inconvenience: because it could carry it no farther than where there were particular directions. The Master was therefore directed to inquire what the trustees might reasonably deserve for their trouble.

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