written evidences of it were given up by A. to be canceled, and he made a new agreement with the town to provide him with other buildings, and let him have a portion of the farm, the former trust is extinguished. And if the town fail to fulfill all the new agreement, the former trust does not remain, but the remedy of A. is at law for damages, or in chancery for a specific performance of such part of the new agreement as remains unfulfilled. Hunter v. The Town of Marlboro, 2 Woodb. & M., 168. § 39. Miscellaneous. When property is conveyed in trust for the sole and separate use of the wife during the term of her life, and after the expiration of such term for the use of such person or persons, and for such purpose only, as she by her last will and testament shall appoint and direct, and in default of such appointment to the use of her next of kin and personal representatives, a court of equity cannot authorize the trustees to convey the property to the husband upon a bill filed by him and his wife against the trustees for that purpose. Markoe v. Maxey, 5 Cr. C. C., 306. § 40. Land was conveyed by W., a married woman, her husband H. joining in the deed, to P., in trust for her support during life, remainder to her children. The deed provided that H. should possess and manage the property during his life-time. P. was not to be liable for H.'s acts. H. was declared to be a co-trustee, but neither had power to charge the property with any future liability beyond H.'s support for life. H. survived W. and died insolvent. Held, that N., who had furnished H. supplies for carrying on the property, had no claim on P., the trust property or the children of W. for such supplies, it not appearing what was the state of the account between the estate and H. at the time of his death. Hewitt v. Phelps,* 15 Otto, 393. § 41. Where a question of doctrine or practice of a subordinate religious body arises, involving the execution of a trust, the rule of decision for the courts is to follow the views of the highest judicatory of that faith and order. Watson v. Jones, 13 Wall, 679. § 42. It is not a correct construction of the third and twenty-first sections of the act of congress incorporating the Mechanics' Bank of Alexandria that the stock of the bank shall be deemed to belong to the persons in whose names it stands upon the books of the bank, and that the bank is not bound to recognize the interests of any cestui que trust, and may refuse to permit the stock to be transferred whilst the nominal holder is indebted to the bank. Mechanics' Bank of Alexandria v. Seton, 1 Pet., 299. § 43. The same relation as that of landlord and tenant subsists between a trustee and a cestui que trust as regards the title. Walden v. Bodley, 14 Pet., 156. § 44. A deed conveying, in trust, to secure certain creditors, certain specified articles of personal property does not protect from the general creditors articles purchased to supply the place of the articles sold by the trustee, unless so stipulated in the deed of trust. Letourno v. Ringgold, 3 Cr. C. C., 103. § 45. A testamentary trust cannot be modified by a parol understanding between the testator and the trustee. Moore v. Mitchell,* 2 Woods, 483. § 46. The fact that the grantor and trustee and beneficiaries under a trust are citizens of different belligerents will not invalidate a sale under the deed of trust. University v. Finch, 18 Wall., 106. § 47. Where trustees sell on a credit and receive money before it is due, discounting legal interest, it does not operate in equity as a discharge of the lien, but a court of chancery will consider the lien as still subsisting, and the purchaser as responsible to the creditor. Wallis v. Thornton, 2 Marsh., 422. § 48. There is no distinction between a trust created to pay debts generally and a charge upon lands for the same purpose. Notice of the charge does not vary the rights of the purchaser. Gardner v. Gardner, 3 Mason, 178. § 49. Where one purchased at trustee's sale the land of his infant brothers and sisters on time, but confessed a judgment in trust as due for them, this was not fraud, and his other creditors cannot set the judgment aside. Bank of Georgia v. Higginbottom, 9 Pet., 59. § 50. A party in possession of land and holding adversely does not charge himself as trustee by buying in a pretended right to the premises at an assignee's sale in bankruptcy, although the assignee held, as trustee, the interest of the bankrupt, whatever that might be. Cleveland Ins. Co. v. Reed, 24 How., 284. § 51. Where, in the event of the bankruptcy of the beneficiary, his interest in the income ceases, a limitation to wife and children, or, at the discretion of the trustees, accumulation for ulterior or stated purposes, is sufficient to exclude any possible future interest of the bankrupt in the fund. Nichols v. Eaton, 3 Cliff., 595. § 52. Where lands belonging to the state have been made a trust estate for the payment of bonds by legislative act, and placed in the hands of trustees, such trust property is subject to the power of a court of equity to raise therefrom the money to satisfy the liens on the trust estate, and may appoint its own agents to sell the property or a portion thereof. Vose v. Trustees of the Internal Improvement Fund, 2 Woods, 647. II. CREATION AND DURATION. SUMMARY - Deed absolute; burden of proof, § 53.— Lapse of time, § 54. § 53. Where a trust is sought to be established under a deed absolute on its face the burden of proof is on the plaintiff. Prevost v. Gratz, §§ 55-58. § 54. Length of time is no bar to a trust clearly established, but after the lapse of many years-forty years in this case-equity will presume that the trust was discharged rather than in the absence of evidence presume that the trustee was guilty of fraud. · Ibid. [NOTES.-See §§ 59-84.] PREVOST v. GRATZ. (6 Wheaton, 481-514. 1821.) APPEAL from U. S. Circuit Court, District of Pennsylvania. STATEMENT OF FACTS.- This was a bill in chancery filed in the court below by the plaintiff George W. Prevost, as administrator de bonis non, with the will annexed, of George Croghan, deceased, against the defendants Simon Gratz, Joseph Gratz and Jacob Gratz, administrators of the estate of Michael Gratz, deceased, for a discovery and account of all the estate of G. Croghan which had come to their hands or possession either personally or as the representatives of M. Gratz, who was one of the executors of G. Croghan, who died in August, 1782, having appointed M. Gratz, B. Gratz, T. Smallman, J. Tunis and W. Powell executors of his last will and testament. All the executors except W. Powell died before the commencement of the suit. B. Gratz died in 1800, and M. Gratz in 1811. W. Powell was removed from his office as executor, in the manner prescribed by the laws of Pennsylvania, after the death of M. Gratz; and the plaintiff was thereupon appointed administrator de bonis non, with the will annexed. The bill charged M. Gratz and B. Gratz (the representatives of B. Gratz not being made parties) with sundry breaches of trust in respect to property conveyed to them in the life-time of the testator, and with other breaches of trust in relation to the assets of the testator after his decease; and also charged the defendants with neglect of duty in relation to the property and papers of G. Croghan, which had come to their hands. since the decease of M. Gratz. Further facts appear in the opinion of the court. Opinion by MR. JUSTICE STORY. The first point upon which the cause was argued respects the tract of land on the Tenederah river. It appears from the evidence that this tract of land, containing nine thousand and fifty acres, was conveyed by Colonel Croghan to Michael Gratz by a deed bearing date on the 2d of March, 1770, for the consideration expressed in the deed of £1,800. The deed is upon its face absolute, and contains the covenants of general warranty, and for the title of the grantor, which are usual in absolute deeds, but are unnecessary in deeds of trust. At the time of the execution of the deed Colonel Croghan was in the state of New York, and Michael Gratz was at Philadelphia. The land was, after the death of Colonel Croghan, and in the year 1795, sold by Michael Gratz to a Mr. Lawrence in New York for a large sum of money. The plaintiff contends that this conveyance made by Colonel Croghan to Michael Gratz, though in form absolute, was in reality a conveyance upon a secret trust, to be sold for the benefit of the grantor; and in this view of the case he contends further that he is entitled to be allowed the full value of the lands at the time that the present suit was brought, upon the ground of a fraudulent or improper breach of trust by the grantee, or at all events to the full amount of the profits made upon the sale in 1795, with interest up to the time of the decree. The attention of the court will therefore be directed, in the first place, to the consideration of the question whether this was a conveyance in trust, and, if so, of what nature that trust was; and in the next place whether that trust was ever lawfully discharged or extinguished. If there be still a subsisting trust there can be no doubt that the plaintiff is entitled to some relief. It appears from the evidence that Colonel Croghan and Bernard and Michael Gratz were intimately acquainted with each other, and a variety of accounts was settled between them from the year 1769 to a short period before the death of Colonel Croghan. During all this period Colonel Croghan appears to have had the most unbounded confidence in them; and particularly by his will, made in June, 1782, a short time before his decease, he named them among his executors, and gave to Michael Gratz, in consideration of services rendered to him, five thousand acres of land, and to his daughter Rachel Gratz one thousand acres of land on Charter creek, with an election to take the same number of acres in lieu thereof in any other lands belonging to the testator. The situation of the parties, therefore, was one in which secret trusts might probably exist, from the pecuniary embarrassments in which Colonel Croghan appears to have been involved, as well as from his extensive land speculations. And, in point of fact, some portions of his property were conveyed to one or both of the Messrs. Gratz, upon express and open trusts. § 55. When a trust is asserted to exist the burden of proof lies upon him who asserts it. Still, however, the burden of proof to establish the trust in controversy lies on the plaintiff. The circumstances on which he relies are, in our judgment, exceedingly strong in his favor, and sufficient to repel any presumption against the trust drawn from the absolute terms of the deed. In an account which was settled in Pittsburg in May, 1775, between Bernard and Michael Gratz and Colonel Croghan, is the following item of credit: 66 'August, 1774. By cash received of Howard, for 9,000 acres of land at Tenederab, £797 12 6 31 18 1 £829 10 7 There is no question of the identity of the land here stated to be sold to Howard with the tract conveyed to Michael Gratz by the deed in 1770. If the conveyance to Michael Gratz had been originally made for a valuable consideration then paid, it seems utterly impossible to account for the allowance of this credit upon any sale at a subsequent period. It seems to us, therefore, that the only rational explanation of this transaction is that the conveyance to Michael Gratz, though absolute in form, was in reality a trust for the benefit of Colonel Croghan. What the exact nature of this trust was it is, perhaps, not very easy now to ascertain with perfect certainty. It might have been a trust to sell the lands for the benefit of Colonel Croghan, and to apply the proceeds in part payment of the debts due from him to Bernard and Michael Gratz, or it might have been a sale of the lands directly to Michael Gratz, in part payment of the same debt, at a price thereafter to be agreed upon and fixed by the parties; and in the meantime there would arise a resulting trust, in favor of Colonel Croghan, by operation of law. Time, which buries in obscurity all human transactions, has achieved its accustomed effects upon this. The antiquity of the transaction, the death of all the original parties, and the unavoidable difficulties as to evidence, attending all cases where there are secret trusts and implicit confidences between the parties, render it, perhaps, impossible to assert with perfect satisfaction which of the two conclusions above suggested presents the real state of the case. Taking the time of the credit only, it would certainly seem to indicate that the trust was unequivocally a trust to sell the land. But there are some other circumstances which afford considerable support to the other conclusion. Upon the back of an account between B. and M. Gratz and Colonel Croghan, which appears to have been rendered to the latter in December, 1769, there is a memorandum in the handwriting of Colonel Croghan in which he enumerated the debts then due by him to B. & M. Gratz, amounting to £1,220 1s. 2d., and then adds the following words: "paid of the above £144 York currency, besides the deed for the land on the Tenederah river, 9,000 acres patented." This memorandum must have been made after the conveyance of the land to M. Gratz, and demonstrates that the parties intended it to be a part payment of the debt due to B. and M. Gratz, and not a trust for any other purpose. The circumstance, too, that the word "paid" is used strongly points to a real sale to M. Gratz, rather than a conveyance for sale to any third person. And if the sale was to be to M. Gratz, at a price thereafter to be fixed between the parties, the transaction could not be inconsistent with the terms of the credit in the account of 1775. It will be recollected that M. Gratz resided at Philadelphia, and the conveyance was executed by Colonel Croghan at Albany. There is no evidence that the consideration stated in the deed, of £1,800, or any other consideration, was ever agreed upon between the parties; and the circumstance that no sum is expressed in the memorandum of Colonel Croghan shows that at the period when it was made no fixed price for the land had been ascertained between the parties. If, then, it remained to be fixed by the parties, whenever that value was agreed upon and settled in account; the resulting trust in Colonel Croghan would be completely extinguished. It is quite possible, and certainly consistent with the circumstances in proof, that B. and M. Gratz might not have been acquainted with the real value of the land, or might be unwilling to take it at any other value than what, upon a sale, they might find could be realized. From the situation of Colonel Croghan, his knowledge of the lands and his extensive engagements in land speculations, ignorance of its value can scarcely be imputed to him. If, therefore, M. Gratz afterwards sold it to Howard, and Colonel Croghan was satisfied with the price, there is nothing unnatural in stating the credit in the manner in which it stands in the account of 1775. It would agree with such facts, and would by no means repel the presumption that the land was not originally intended to be sold to M. Gratz. It would evidence no more than that the parties were willing that the sale so made should be considered the standard of the value; and that M. Gratz should, upon his original purchase, be charged with the same price for which he sold. Upon this view of the case the resulting trust would be extinguished by the consent of the parties, and no want of good faith could be fairly imputed to either. § 56. When the existence of a trust is once established, the burden of proof is on the other side to show that it has been fulfilled or extinguished. But it said that there is no proof that any such purchase was ever made by Howard; and the trust being once established the burden of proof is shifted upon the other party to show its extinguishment; and if this be not shown, the trust travels along with the property and its proceeds down to the present time. $57. Length of time is no bar to a trust; it continues to follow the property or its proceeds, but after the lapse of many years less exact proof will suffice to support the presumption of innocence of fraud. It is certainly true that length of time is no bar to a trust clearly established; and in a case where fraud is imputed and proved, length of time ought not, upon principles of eternal justice, to be admitted to repel relief. On the contrary, it would seem that the length of time during which the fraud has been successfully concealed and practiced is rather an aggravation of the offense, and calls more loudly upon a court of equity to grant ample and decisive relief. But length of time necessarily obscures all human evidence; and as it thus removes from the parties all the immediate means to verify the nature of the original transactions, it operates by way of presumption in favor of innocence and against imputation of fraud. It would be unreasonable, after a great length of time, to require exact proof of all the minute circumstances of any transaction, or to expect a satisfactory explanation of every difficulty, real or apparent, with which it may be incumbered. The most that can fairly be expected in such cases, if the parties are living, from the frailty of memory and human infirmity, is that the material facts can be given with certainty to a common intent; and, if the parties are dead, and the cases rest in confidence and in parol agreements, the most that we can hope is to arrive at probable conjectures, and to substitute general presumptions of law for exact knowledge. Fraud or breach of trust ought not lightly to be imputed to the living, for the legal presumption is the other way; and as to the dead, who are not here to answer for themselves, it would be the height of injustice and cruelty to disturb their ashes and violate the sanctity of the grave, unless the evidence of fraud be clear beyond a reasonable doubt. Now, disguise the present case as much as we may, and soften the harshness of the imputation as much as we please, it cannot escape our attention that if the plaintiff's case be made out there was a meditated breach of trust and a deliberate fraud practiced by M. Gratz, or Bernard Gratz, with the assent of M. Gratz, upon Colonel Croghan. If the sale to Howard was merely fictitious, it was an imposition upon Colonel Croghan, designed to injure his interest and violate his confidence. If the fraud were clearly made out, there would certainly be an end to all inquiry as to the motives which could lead to so dishonorable a deed between such intimate friends. But the fraud is not clearly made out; it is inferred from circumstances in themselves equivocal, and from the absence of proofs which it is supposed must exist if the sale were real and could now be produced. In the view which the court is disposed to take of this case, it must consider that Howard was a real and not a fictitious person. It is then asked, why are not the facts proved who Howard was, where he lived, and the execution of the deed to him? It is to be recollected that this proof is called for about forty years after the original transaction, when all the parties and all who were intimately acquainted with the facts are dead. It is called for, too, from persons some of whom were unborn and some very young at the period to which they refer. They cannot be supposed to know, and they absolutely deny, all knowledge of the facts. What reason is there to suppose that Colonel Croghan did not know who Howard was? He had a deep interest in the |