The trustee's expenses are a lien upon the fund and cannot be determined in this action. Rensselaer & Saratoga R. R. Co. v. Miller & Knapp, 47 Vt. 146, 152.

A court of law cannot determine the accumulations for which the trustee should be held liable. The legal rate of interest may not be the criterion.

TAFT, J. The only question in this case is whether the plaintiff can maintain an action at law to recover the claim in controversy or whether her only remedy is in equity.

The defendant received eleven hundred dollars in certain mortgage notes that were subsequently paid him. He was to take care of the fund, keep it on interest, and when the plaintiff and her sister, respectively, became of age, he was to pay five hundred dollars, with its accumulations, to the plaintiff, and six hundred dollars, with its accumulations, to the sister. The defendant insists that this transaction created such a trust that it can be settled only in a court of equity, relying upon the case of Congdon v. Cahoon, 48 Vt. 49. That was the case of trust created by a deed of real estate and the gift of certain mortgage notes. The trustees were to take charge of the property, collect the income thereof and expend it, and to some extent, expend the principal, in the support of the wife of the grantor in the deed, and four of his children. The beneficiaries were

not entitled to equal shares of the income, but it was to be used in the discretion of the trustees in the support of them all. The plaintiff was one of the four children, and upon arriving at full age, when she was entitled to a certain share of the property, brought an action at law to recover it. The trust was still an active one; the trustees were to continue as such until the youngest child arrived at its majority, and there had been no settlement of the trustees' accounts. The plaintiff's share of the fund could not be determined except by a settlement of the trustees' accounts. It was necessary that all of the parties in interest should be parties to any settlement made, and it was very properly

ruled that the plaintiff could not recover at law any share that might, upon the settlement of the account, belong to her. The legal title of the property was in the trustees, and the only remedy any of the parties in interest had was in a court of equity that had complete and exclusive jurisdiction of the subject matter.

The case before us differs in essential particulars from that case. The defendant received the money, was under a duty to keep it bearing interest, and to pay the fund to the plaintiff upon her arrival at the age of majority. He was not authorized to expend any money, whatever, for the support of the plaintiff, and could have no claims in respect to it unless it was for his services in the care of it. The trust ended when the plaintiff became of age. She was then entitled to the money, and the legal title of the property became vested in her at that time. This being so, she has a right to maintain an action at law to recover it. The reason why a cestui que trust cannot maintain an action at law against the trustee is because the legal title of the property is in the latter and not in the beneficiary.

The defendant should account to the plaintiff; there can be no difficulty in determining the amount of the trustee's expenses for administering the trust, and any valid claim of that nature can be deducted from the amount of the funds in his hands before any judgment is rendered against him.

The plaintiff is entitled to the five hundred dollars and the accumulations less any valid expenses of the defendant in respect to the fund, and any payments heretofore made.

This case is ruled by that of Lynde v. Davenport, 57 Vt. 597; and see the cases therein cited. It has been held that in case of an active trust, the trustee is liable to an action at law in behalf of the beneficiary if any portion of the trust funds are separated from the main fund and the trustee promises to pay the beneficiary the amount. Under this principle, there was testimony which required a submission of the case to the jury, as there was evidence tending to

show that the defendant, when the money was demanded of him, replied that if the plaintiff would go with him, he would pay her a part of it, and secure her for the balance. She did go with him, as he proposed, stayed over night with him, but when asked for it in the morning, he said he was not ready to pay. This if true would entitle her to a recovery; but it is unnecessary to place the case upon this ground, as we think the equitable estate had ended, and the action at law maintainable.

Judgment reversed and cause remanded.

SIDNEY H. SHERMAN VS. ESTEY ORGAN Co.

January Term, 1897.

Present: Ross, C. J., TAFT, Rowell, TYLER and MUNSON, JJ.

Sufficiency of Affidavit to Chattel Mortgage.

This court will not reverse its own decision in the same case upon the same facts.

Sherman v. Estey Organ Co., 67 Vt. 550, approved.

An affidavit, "that the foregoing mortgage is made for the purpose of securing the debt specified in the condition thereof and for no other purpose, and that the same is a just debt, due and owing from the mortgagor to the mortgagee," is not a compliance with the statute of New Hampshire, which requires the affidavit to state, "that said debt was not created for the purpose of enabling the mortgagor to execute said mortgage."

TROVER for wood and lumber. Plea, not guilty. Trial by jury at the September Term, 1896, Windham County, Start, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

The plaintiff claimed title to the wood and lumber by virtue of a chattel mortgage and a foreclosure sale to

himself thereunder, subsequent to which sale the defendant converted the same to its own use, claiming title thereto by virtue of conveyances, from other parties, of the land upon which said wood and lumber grew, and a bill of sale of the same from the plaintiff's mortgagor.

K. Haskins and Waterman, Martin & Hitt for the defendant.

Clarke C. Fitts and L. M. Read for the plaintiff.

The affidavit was a substantial compliance with the statute. Literal compliance was unnecessary. Randall v. Baker, 20 N. H. 335; Comey v. Pickering, 63 N. H. 126; Gilbert v. Vail, 60 Vt. 261.

The sufficiency of the affidavit was settled by the former decision. Sherman v. Estey Organ Co., 67 Vt. 550.

Ross, C. J. When this case was before this court, as found in 67 Vt. 550, it was held that the chattel mortgage from Waite to the plaintiff,-if it was executed for the purpose and under the circumstances which the plaintiff's testimony tended to establish,-was so far as regards the facts which that testimony tended to establish, valid. The decision of this court upon a point in a case will not be departed from when the case comes again before the court, so long as the facts relevant to the point decided remain unchanged. Ross v. Bank of Burlington, 1 Aik. 43; Dana v. Nelson, 1 Aik. 252; Herrick v. Belknap, 27 Vt. 673; Stacy v. Vt. Cent. R. Co., 32 Vt. 551; Barker v. Belknap, 39 Vt. 168; Child v. Insurance Co., 56 Vt. 609; St. Johnsbury, etc., R. Co. v. Hunt, 59 Vt. 294.

(1) No new facts relevant to whether the true relations of the plaintiff and of Waite to their note given to Herrick, upon which the plaintiff had written, "Surety" after his signature, could be shown by evidence aliunde the note, have been brought into the case since the decision. That decision is conclusive upon this point. The trial court properly admitted such evidence.

(2) Upon the former trial a verdict was ordered for the defendant at the close of the plaintiff's testimony. The exceptions then before the court show that only 9 of chapter 140 of the laws of New Hampshire was admitted in evidence. This chapter relates to mortgages of personal property, and points out the manner in which they must be executed and recorded to be effectual against attaching creditors and purchasers. Section 9, in substance, provides, that if the mortgage is executed to secure the mortgagee for a liability other than a debt due to him from the mortgagor, the form of the oath given in § 6 of the chapter shall be so varied as truly to describe such liability. On this trial the whole of chapter 140 of the laws of New Hampshire was in evidence. The exceptions then did not include the form of the oath required by § 6 of that chapter. Hence the point whether the oath affixed to the mortgage given by Waite to the plaintiff complied, in substance, with the form of the oath prescribed by § 6 of chapter 140 of the laws of New Hampshire was not raised by those exceptions, nor was it considered by this court in the decision then made. The personal property mortgaged was located in New Hampshire, and the mortgage to be valid must be executed in accordance with the laws of that state. The mortgage from Waite to the plaintiff of the property, in contention, was executed in Windham County, and has upon it the form of oath prescribed by V. S. 2253, reading, "We severally swear that the foregoing mortgage is made for the purpose of securing the debt specified in the conditions thereof, and for no other purpose, and that the same is a just debt, due and owing from the mortgagor to the mortgagee." The oath prescribed by § 6 of chapter 140 of the laws of New Hampshire, and required to be taken by the parties to such mortgage, and recorded, reads, "We severally swear that the foregoing mortgage is made for the purpose of securing the debt specified in the condition thereof, and for no other purpose whatever, and that said