malicious intent, and if alleged it need not be proved. Neal v. Smith, 89 Me. 596 (36 Atl. Rep. 1058). The lessees of a mine may properly join as plaintiffs in an action of trespass against a third party. United Coal Co. v. Canon City Coal Co., 24 Colo. 116 (48 Pac. Rep. 1045). Proof of the trespass entitles the plaintiff to nominal damages and it is error to decree a nonsuit because no damages are proven. Lance v. Apgar, 60 N. J. L. 447 (38 Atl. Rep. 695). Where a trespass is admitted or proven, the presumption in the absence of evidence to the contrary is that it was willful and the burden is on the trespasser to show that it was not. Mississippi River Logging Co. v. Page, 68 Minn. 269 (71 N. W. Rep. 4). Upon an indictment for entry upon land after being forbidden, under N. C. Code, § 1120, when the entry after being forbidden by the party in possession is shown or admitted, the burden devolves upon the defendant to show that he entered under a bona fideclaim of right. It is not sufficient merely to testify that he believed that he had the right to enter, but he must show that he had reasonable grounds for such belief. State v. Durham, 121 N. C. 546 (28 S. E. Rep. 22). Particular evidence held sufficient to sustain plaintiff's title. Humes v. Proctor, 151 N. Y. 520 (45 N. E. Rep. 948). Particular evidence held insufficient to sustain a verdict for damages for trespass on land. Meyers v. Savery, 19 Mont. 329 (48 Pac. Rep. 390). For case depending upon particular question as to the admissibility of evidence, see Taylor v. Corley, 113 Ala. 580 (21 So. Rep. 404). As to the applicability of particular instructions, see Zundel v. Baldwin, 114 Ala. 328 (21 So. Rep. 420); McCusker v. Mitchell, R. I. (36 Atl. Rep. 1123).

Sec. 937. Measure of damages. One willfully trespassing upon coal lands is liable for the full value of the coal taken. United Coal Co. v. Canon City Coal Co., 24 Colo. 116 (48 Pac. Rep. 1045). The measure of damages for the wrongful digging of ditches upon land is the cost of filling them up and restoring the premises to their original condition. Doss v. Billington, 98 Tenn. 375 (39 S. W. Rep. 717). How. Ann. Mich. Stat., § 7959, construed and applied—measure of damages in trespass for cutting timber-recovery of treble damages and interest. Gates v. Comstock, 113 Mich. 127 (71

N. W. Rep. 515). Miss. Code 1892, § 4412, applied-recovery of exemplary damages. Keystone Lum. & Imp. Co. v. McGrath, Miss. (21 So. Rep. 301). N. Y. Code Civ. Proc., §§ 1667, 1668, applied-recovery of triple damages. Humes v. Proctor, 151 N. Y. 520 (45 N. E. Rep. 948).

TRUSTS.

EPITOME OF CASES.

Sec. 938. Creation of express trusts Validity. A deed, granting to a committee of and in behalf of a certain cemetery, certain land, to be held "in behalf of the said corporation for their use and behoof, forever," although the words, "in trust or "trustees" are not used, constitutes a deed in trust for such corporation. Packard v. Old Colony R. Co., 168 Mass. 92 (46 N. E. Rep. 433). Where one before a judicial sale agrees to buy in the land in his name for the benefit of the debtor, the debtor to pay the purchase money and keep the land, this is an express trust, enforcible in equity. A second sale under decree, and purchase by the same purchaser will not defeat the trust. Currence v. Ward, 43 W. Va. 367 (27 S. E. Rep. 329). Where the father, being the owner of the equitable estate in land, directs the conveyance of the legal title to his son in trust for the father, and in the deed the grantee is designated as trustee, both the deed and the instructions for its execution are competent evidence to prove the trust, in an action for its enforcement against the son, who denies the trust and claims the coveyance was a gift or advancement. Paddock v. Adams. 56 O. St. 242 (46 N. E. Rep. 1068). A devise by a wife, who leaves a surviving father, to her husband which provides "but it is my wish and desire that he shall furnish a home, maintenance and care for my said father during life should he need and require it "imposes upon the husband accepting the devise a binding trust. Foster v. Wilson, N. H. (38 Atl. Rep. 1003). Particular agreement entered into by

the purchasers of land construed and held to be an executed declaration in trust. Gildersleeve v. Stratton, N. J. Eq.

(36 Atl. Rep. 477). Particular evidence held sufficient to establish an express trust in land. Tennant v. Tennant, 43 W. Va. 547 (27 S. E. Rep. 334). Where a trust deed executed for the benefit of the grantor's creditors requires the trustee to continue the grantor's business, making the expense incident thereto and an allowance of compensation to the trustee charges superior to those of the creditors secured, on account of which the object of the trust may be defeated and postponement of the creditors thereby secured, the deed will be held null and void as being fraudulent in law. Catt v. Wm. Knabe & Co. Mfg. Co., 93 Va. 746 (26 S. E. Rep. 246). Where a son's conveyance of all his property to his father, in trust, was procured by the latter's undue influence, a reconveyance by him to the son will be sustained. Ewing v. Bass, 149 Ind. 1 (48 N. E. Rep. 241).

Sec. 939 Parol evidence to establish express trusts. In West Virginia an express trust in lands may be created, declared, or proven by parol evidence, provided the agreement creating the trust is made before the legal title is conveyed to the trustee. Currence v. Ward, 43 W. Va. 367 (27 S. E. Rep. 329). A voluntary conveyance by a husband to his wife without consideration, untainted with fraud, even with an oral agreement that she shall hold the land in trust, does not create a trust which can be enforced. Fitzgerald v. Fitzgerald, 168 Mass. 488 (47 N. E. Rep. 431). The fact that the wife obtains a divorce from her husband after he has made an absolute conveyance of real estate to her, does not authorize the admission of parol evidence to establish a trust as to such real estate in such wife for their mutual benefit. Handlan, 42 W. Va. 309 (26 S. E. Rep. 179). action involving the determination of the nature of his title, one claiming under an absolute deed and all the parties interested admit that the conveyance was made for the purpose of creating an express trust the terms of which rest in parol, the statute of frauds is waived and the trust may be established by parol. Myers v. Myers, 167 Ill. 52 (47 N. E. Rep. 309). Under Ill. Rev. Stat., ch. 59, § 9, an express trust in lands is

Handlan v. Where in an

Ill.

not enforcible unless evidenced by writing. Godschalck v. Fulmer, (45 N. E. Rep. 809); 176 Ill. 64 (51 N. E. Rep. 852). The same is held in Iowa, applying Code, § 2918. Keller v. Strong, 104 Ia. 585 (73 N. W. Rep. 1071). Applying McClain's Ia. Code, § 3105, requiring all declarations of trust affecting real estate to be in writing, it is held that where the holder of a decree of foreclosure makes a written assignment thereof, absolute on its face, he cannot show by parol that the assignee holds the mortgaged premises, subsequently purchased under the decree, in trust for him. Hemstreet v. Wheeler, 100 Ia. 290 (69 N. W. Rep. 521). Applying Maine Rev. Stat., ch. 73, § 11, providing that "there can be no trust concerning lands, except a trust arising by implication of law, unless created or declared by some writing signed by the party or his attorney," it is held that where a mother when sick conveyed her interest in certain real estate to her daughter by an absolute deed of warranty, a trust cannot be established by parol proof of an understanding that if the grantor recovered and wanted her interest back, the daughter would reconvey it to her. Wentworth v. Shibles, 89 Me. 167 (36 Atl. Rep. 108). Applying Mo. Rev. Stat. 1889, § 5184, providing that "all declarations or creations of trust or confidence in any lands, tenements, or hereditaments, shall be manifested. and proved by some writing required by the party," it is held that a grantor in a general warranty deed cannot establish a trust by parol in his favor in the absence of fraud or mistake, although the parties to the deed are partners. Rogers v. Ramey, 137 Mo. 598 (39 S. W. Rep. 66). Under Wis. Rev. Stat., § 2302, a trust in lands can be created and provided only by an instrument in writing. A parol trust is void at the election of the trustee and the courts will not interfere to compel him to execute it. Krouskop v. Krouskop, 95 Wis. 296 (70 N. W. Rep. 475).

Sec. 940.

Statute of uses and passive trusts. The statute of uses has no application to a deed absolute on its face. Myers v. Myers, 167 Ill. 52 (47 N. E. Rep. 309). A devise to testator's executors for the benefit of certain named children is equivalent to a devise of the land itself. Barclay v. Platt, 170 Ill. 384 (48 N. E. Rep. 972). Where a mere

naked power to exercise a discretion is given by a will to two or more persons as trustees, the death of one of them before the will takes effect renders the trust void. Hadley v. Hadley, 147 Ind. 423 (46 N. E. Rep. 823). A conveyance to trustees which passes to them simply the legal title to be conveyed on certain contingencies with no power to control the property or receive the rents and profits, creates such a passive trust as was abolished by S. & B. Ann. Wis. Stat., § 2071; and under §§ 2073, 2075, the deed will be treated as if no trustees were named and as if the grant was in direct terms to the beneficiaries, and will be held to vest in them legal estates "of the same quality and duration and subject to the same conditions" as the beneficial interests. Tyson v. Houghton, 96 Wis. 59 (71 N. W. Rep. 94). Where the trust requires the trustee to pay the tax upon the property, the necessary expense of keeping it in repair, and to rent it in case it is not occupied by the beneficiary, the trust is an active one. I. 283 (36 Atl. Rep. 5).

Sec. 941. Spendthrifts' trusts.

Carney v. Byron, 19 R.

Where the testator

devised the portion of his son K. in the residue of his estate to trustees to pay over the income to him or his wife or children so the said K. and his wife and children may at all times have a comfortable support provided for them, out of said property," it is held that a spendthrift's trust was created which was terminated upon the death of K. and his wife, the fee vesting in his children. King v. King, 168 Ill. 273 (48 N. E. Rep. 582).

Sec. 942. Power of court in respect to trusts. Where a trust is an active continuing one, a court of equity will appoint a trustee to administer it, if the trustee designated in the instrument refuses to act. In re Hemphill's Estate, 180 Pa. St. 95 (36 Atl. Rep. 409). A court of equity may appoint a trustee to fill a vacancy in a deed of trust to secure debts, where the beneficiary, the only person having power to appoint a successor by the terms of the instrument, is dead. Converse v. Davis, 90 Tex. 462 (39 S. W. Rep. 277). Where a trustee in a deed for the benefit of creditors dies pending an action by him to enforce the trust, the court may appoint a