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Shortly after the assignment of the M'Ilvaine judgment to Bernard Gratz, on the 16th of May, 1775, Colonel Croghan (probably having knowledge of the assignment, though the fact does not appear), by two deeds of that date, conveyed to B. Gratz, for a valuable consideration expressed therein, about forty-five thousand acres of land. A declaration of trust was executed by Bernard Gratz, on the 2d of June, 1775, by which he acknowledged that these conveyances were in trust to enable Bernard Gratz to sell the same, and with the proceeds to discharge certain enumerated debts of Colonel Croghan, and among them the debt due on the M’Ilvaine bond, and to account for the residue with Colonel Crogban.

The subject of the M’Ilvaine judgment was very minutely considered in the court below by the learned judge who decided the cause, and the principal grounds on which the plaintiff relied for a degree were so fully answered there that a complete review of them does not seem to be necessary in this court. It is observable that the bill charges that the assignment of this judgment was secretly procured by Bernard or Michael Gratz, or both of them, after the death of Colonel Croghan, and that nothing was due upon the judgment; or if anything was due, it was paid upon the assignment, out of moneys belonging to the estate of Colonel Croghan. The bill asserts no other ground for relief on this subject. The proof in the cause completely establishes the material charges in the bill to be false. The assignment was made to Bernard Gratz in the life-time of Colonel Croghan; the judgment never was paid or satisfied by Colonel Croghan, or out of his estate; and no fraud is pretended in the bill to have taken place in the levy of the judgment on Colonel Croghan's lands, independently of the legal inference to be deduced from the facts charged in the bill. If Bernard Gratz was not, at the time, in the situation of a trustee of Colonel Croghan, there is no pretense to say that he might not rightfully and lawfully purchase the judgment. And there are very strong reasons to believe that it was purchased with the knowledge and for the relief of Colonel Croghan. It was somewhat insisted upon in the court below, that, by a power of attorney of the 10th of July, 1772, Colonel Croghan constituted Bernard and Michael Gratz trustees of all his lands, with unlimited power to sell them and pay off his debts. But this ground has not been insisted upon here, and, indeed, for the best reasons. There is the strongest presumptive evidence that this power was never acted upon, or was revoked, and held a nullity before the time of the assignment in question.

The ground that has been principally relied upon here is that Bernard Gratz having taken the two trust deeds in 1775, already referred to, in trust for the payment of this very debt out of the proceeds of the sale of the lands conveyed by those deeds, could not proceed to satisfy the judgment out of any other lands without notice to Colonel Croghan or his representatives. But there is not the least evidence in the cause to show that any of the lands conveyed by either of these deeds ever turned out productive. And there are the strongest presumptions in the case, and it seems, indeed, to be on all sides conceded, that either the title to these lands wholly failed, or became altogether unsalable. There is no reason to suppose that these facts lay more peculiarly in the knowledge of one party than the other; and if the trust became utterly frustrated and inert, there could not be any necessity of giving a formal notice that Bernard Gratz must look to other property, and particularly to the property in Westmoreland county, upon which alone, it is under. stood, by the laws of Pennsylvania, the lien of the judgment attached.

There is no proof that any assets ever came to the hands of Bernard Gratz or Michael Gratz out of which this judgment was or could be satisfied. Bernard Gratz was alone interested in it; and it was kept alive, from time to time, until the levies in question were made. It will be recollected, also, that even if Michael Gratz were disposed to connive, after the death of his brother, in the levies of his son Simon, William Powell, who was another executor, had no such motive. And it is not shown that, by any law or usage in Pennsylvania, any notice is required to be given to any other persons than the personal representatives of the deceased, of the execution of any such judgment on lands, so that laches could be fairly imputed to the executors for neglect to give notice to the heirs of Colonel Croghan of the sale. The very length of time during which this judgment remained unsatisfied is evidence of the desperate state of Colonel Croghan's affairs; and the record abounds with corroborations of the great embarrassments attending all his concerns, and of apparent insolvency at the time of his decease. No evidence bas been submitted to us to establish that the levies on the lands, under the judgment, were fraudulently conducted by the sheriff, or that they did not sell for the full value of the title, such as it was, which Colonel Croghan had in them. It appears that the title, as to some part of them, is still in controversy. And Simon Gratz, the judgment creditor, had as much right, if the sale was buna fide conducted, to become the purchaser, if he was the highest bidder, as any

other person.

Upon the whole the majority of the court entirely concurs in the opinion of the circuit court upon this part of the case. But, as to the decree respecting the proceeds of the Tenederah lands, we are all of opinion that it ought to be reversed. If the court had felt any doubts as to the merits, it would ha ve been proper to have given serious consideration to the very able argument made at the bar respecting the defect of proper parties to the bill. But, as upon the merits the court is decidedly against the plaintiff, it seemed useless to send back the cause upon this objection, if it should be found tenable, when, after all, the case furnished no substantial ground for relief in equity.

$ 59. In general.— No particular form of words is necessary to create a trust. Still no instrument will be construed as creating an express trust unless it be clearly stated, or unless it may be fairly implied from the language used. Davis v. Life Association of America, 11 Fed. R.,

781. $ 60. Whenever a person by will gives property, and points out the object, the property and the way in which it shall go, a trust is created, unless be shows clearly that his desire expressed is to be controlled by the trustee, and that he shall have an option to defeat it. Inglis v. Trustees of the Sailors' Snug Harbor, 3 Pet., 99.

$ 61, Where lands are held in trust, with power in the trustee to direct by will sale thereof, and into whose hands the proceeds are to be placed for the benefit of the cestui que trust, and such trustee directs in his will that his executor sell the same and apply the proceeds to pay certain legacies, it constitutes in the executor a power coupled with a trust. Taylor v. Benham, 5 How., 233.

$ 62. Money paid by one insurance company to another, to be immediately paid to the customer of the latter, is paid and received upon an express trust. Hosmer v. Jewett, 6 Ben., 208.

$ 63. A credit in an account may amount to a declaration of trust when it shows that a deed otherwise absolute was really made in trust. Prevost v. Gratz,* Pet. C. C., 364.

$ 64. A bidder at a trustee's sale under a trust deed executed to secure the payment of a debt, who goes beyond his bid and pays the whole of the mortgage debt, taking an assignment to himself of the mortgagor's liability for the difference between the amount of the debt and the amount at which the property was struck off to him, becomes trustee for the mortgagor. May v. Le Claire, 11 Wall., 217. $ 65. A quitelaim deed executed by one co-tenant to another, for the purpose of facilitating VOL. XXVIII - 36

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the conveyance of portions of the property to purchasers by vesting the legal title fully in the tenant transacting the business, must be treated as between the parties as a conveyance in trust only. Beadle v. Beadle, 2 McC., 586.

$ 66. The acts and declarations of the parties subsequent to the execution of a quitclaim deed, as well as their contemporaneous correspondence, are admissible to show that the deed, absolute on iis face, merely establishes a trust, as between the parties, in the grantee. Ibid.

$ 67. Where a testator sells his land without making a conveyance, but receives a part of the purchase money, and allows the purchaser to take possession, he holds at his death only the naked legal title in trust for the purchaser upon his complying with the terms of the sale, and the devisees take that title clothed with the same trust. Bissell v. Heyward, 6 Otto, 580.

$ 68. Where lands inherited by the wife were by fraud or mistake, and without her kuowledge, conveyed to the husband, the latter takes no beneficial title at all, but holds merely as trustee for his wife; and none of the property so held in trust by him passes to his assignee in bankruptcy, or is subject to the lien of his creditors. Ex parte Anderson, 2 Hughes, 378.

$ 69. Where a person named as executor in a will refuses to qualify, but becomes the de facto executor and actually manages the entire estate, he is liable for assets received, both as executor or as agent or attorney, and on bill brought by a legatee against such person for an account and satisfaction the six years' statute of limitations is no defense. Nor, being an express trustee, can he denounce the trust and hold adversely unless notice be given to the cestui que trust. Pullam v. Pullam, 11 Fed. R., 53.

8 70. S. and P. entered into an agreement by which it was agreed that S. should furnish a certain sum of money, which should be invested by P. in lands in S.'s name, that the lands should be sold in five years, and that as a compensation for his time and his expenses in making the investment he should have half the profits on such sale after deducting interest and taxes. Held, that the transaction created an express trust in the lauds in favor of P., which a court of equity would enforce, notwithstanding the fact that the trustee might have maintained an action at law for damages. Seymour v. Freer, * 8 Wall., 202.

$ 71. Where a husband made a deed of trust as a settlement upon his wife; signed and sealed the deed with her; with her acknowledged it before the proper officers, and himself caused it to be recorded in the appropriate office; retained it in his own possession, but where it was equally under her dominion; declared repeatedly to her and her friends that she was protected by it; and the evidence showed that he intended what he had done to be binding upon him, held, that, by using the name of the trustee named in the deed in placing the deed upon record and keeping the same under the control of his wife as well as himself he either made thereby a delivery to the trustee for the account of all concerned, or he intended to make hinself a trustee by actions final and binding upon himself. Adams v. Adams, 7 Ch. Leg. N., 113; 21 Wall., 185.

$ 72. The treaty of 1830 between the Voited States and the Choctaw Indians stipulated that each Choctaw head of a family desirous to remain and become a citizen of the states be entitled to one section of land, “and in like manner shall be entitled to one-half that quan. tiiy for each unmarried child which is living with him, over tev years of age, and a quarter section to such child as may be under ten years of age, to adjoin the location of the parent.” Held, that no trust, constructive or otherwise, was created in favor of the children by the terms of the above treaty. Wilson v. Wall, 6 Wall., 83.

$ 73. In general a husband becomes entitled to the personal property belonging to the wife at the time of her marriage, unless his marital right be excluded by some express or implied trust. Such a trust may be expressly created, or it may be impli-d from the nature of the gift, or from other attendant and conclusive circumstances. In re Grant, 2 Story, 312.

$ 74. When within the statute of frauds.— The creation of trusts in lands is within the prohibitions of the statute of frauds. Tufts v. Tufts, 3 Woodb. & M., 456.

$ 75. Acceptance of trust, how far necessary.- On bill by a wife to establish a trust deed, made as a settlement upon her, and to remove the trustee therein named and have some suitable person appointed trustee in his place, the fact that such trustee refused to accept the deed or act as trustee is not a controlling circumstance, as such disclaimer on the part of the trustee cannot defeat the conveyance as a transfer of the equitable interest to a third person. A trust cannot fail for want of a trustee or by the refusal of all the trustees to accept the trust. Adams v. Adams, 7 Ch. Leg. N., 113; 21 Wall., 185,

$ 76. Although a trustee may never have heard of the trust deed, the title vests in him, subject to a disclaimer on his part. Ibid.

$ 77. Where the evidence shows that a trust deed in favor of the wife was executed, acknowledged and recorded by the husband with the intent to make provision for his wife and children; that he took the deed into his own possession with the understanding and upon the belief on his part that he had accomplished the purpose by acknowledging and procuring the record of the deed by showing the same to his wife, informing her of its contents and placing the same in the house therein conveyed in a place equally accessible to her and to himself, held, that there was created a trust which the beneficiaries were entitled to have established by a court of chancery, notwithstanding the fact that no actual delivery had ever been made to the trustee named in the deed. Ibid.

$ 78. The mere making of a trust deed, without any ptance, express or implied, by the trustee, is not sufficient to vest in the trustee the title to the land mentioned in the deed; and parol proof is admissible to show that the trust was never accepted. Armstrong v. Morrill, 14 Wall., 120.

$ 79. Duration - Survivorship.- Whatever the language may be by which a trust estate is vested in a trustee, the nature and duration of the trustee's title are governed by the requirements of the trust. So where all the trusts on which property was devised had been performed, superseded or terminated by the death of beneficiaries, and title had vested in those who were to take ultimately under the will, it was held that the trustee's title had terminated, and that a conveyance by him conferred no title. Young v. Bradley, * 11 Ottu, 782.

80. In that case, also, held, that as the sale was a transaction between the ex-trustee and the purchaser alone, the real owners of the land could procure the cancellation of the deed without repaying the purchase money, especially where it appeared that they had no benefit frum it. Ibid.

$ 81. Trustees of a trust estate created by devise take only a chattel interest if the trust does not require a higher estate, potwithstanding words of inheritance. Accordingly, where the specified duties of the trustees were, first, to permit A. to enjoy the premises and receive the rents, issues and profits during his life; second, if A. should die leaving issue, and his wife B. should survive him, then to permit her during her life to enjoy the possession and profits of the property, held, that, as the duties of the trustees were restricted to objects terminating with lives in being, as the trust was dry, and the duties of the trustees wholly passive, the trustees took an estate per autre vie only, notwithstanding the devise to them and their heirs. Poor v. Coosidine, 6 Wall., 458.

$ 82. The quantity of estate taken by trustees depends upon the purposes of the trust. Ward 0. Amory, 1 Curt., 419.

$ 83. Where no intention to the contrary appears, the language used in creating the estate will be limited and restrained to the purposes of its creation. When the objects of the trust are accomplished, the trustee's care ceases, and the estate which goes over and beyond the trust goes as a necessary completion of the objects of the grantor or devisor. Testator devised property to his executor, his heirs, executors, administrators and assigns, in trust for his two grandchildren during their minority, one-half of such property to be turned over to the elder upon his coming of age and the other half to the younger upon his coming of age, and if either should die before reaching his majority his share to go to the survivor. The elder grandchild died, and the survivor having attained the age of twenty-one, married, occupied the property, asserting ownership over the same until his death. He died ivtestate leaving a widow. Held, that no conveyance from the executor was necessary; that the surviror having taken possession became seized in deed and fact and acquired the full legal title. Haw v. Brown,* 1 MacArth., 189.

$ 84. Where a power coupled with a trust is vested in two persons, the power survives if one of the trustees should die. Accordingly property having been devised to two trustees in trust to “manage, invest and re-invest the same according to their best discretion," and pay over the income to the children of testatrix during their lives, and on their decease the said trustees, or their successors as trustees, to appoint three persons, etc., the trust fund to be disposed of thereupon in accordance with the determination of the said persons, held, that it was competent for the survivor of the trustees to appoint the persons to designate the charities under the trust. Lorings v. Marsh, 6 Wall., 337.

III. INTERPRETATION AND VALIDITY.

SUMMARY Power of sale; no power to mortgage, S 85.— Trust taken as a unit, & 86. — Lia.

bility of adminis'rator of trustee, $ 87.- Contingencies which cannot arise; reconveyance presumed, $ 88. $ 83. Land was conveyed in trust with right to sell with the consent of certain persons, and directions to invest the property on the same trusts. Held, that this gave the trustee no authority to mortgage the trust estate. Held, also, that under section 2327 of the code of Georgia a court of equity had no authority to permit such lands to be mortgaged, and that the note secured by such a mortgage did not bind the trust estate. The Patapsco Guano Co. v. Morrison, SS 89-92.

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$ 86. An unexecuted trust for the use and benefit of H., and, in event of his death during minority, then to the heirs of N., is a unit, and cannot be separated into distinct and several trusts, nor can its administration be divided. The trustee must take the property incumbered with the whole trust, and is liable to the heir's of N. as well as to H. The rights of H. cannot be abridged by the trustee, nor can he lavish the fund on H, to the damage of the heirs of N. Curtis v. Smith, SS 93-99.

$ 87. The administrator of a deceased trustee is not liable to a suit at law brought to recover the trust fund. Ibid.

8 88. Where land is conveyed to a person in trust to convey in a certain manner upon certain contingencies and within a certain time, and the contingencies do not and cannot arise, and the time limited expires, a reconveyance by the trustee to the grantor will be presumed; and it is not necessary that the presumption should rest on a basis of proof or a conviction that a conveyance was in fact made. French v. Edwards, & 100.

[NOTES. - See ss 101–126.]

THE PATAPSCO GUANO COMPANY V. MORRISON.

(Circuit Court for Georgia: 2 Woods, 395-406. 1876.)

STATEMENT OF Facts.— In 1843 a marriage settlement was executed in view of the marriage of G. A. Dowse and Sarah A. Morrison, in which the estate. of the latter was vested in the trustee, R. G. Morrison, for the benefit of Mrs. Dowse and her children. Among other provisions the settlement authorized a sale for re-investment by the trustee, but conferred upon him no further powers over, the trust fund. In 1871 the husband, wife and all the living

, . children, some of them infants, with the trustee, applied to the superior court of Burke county, Georgia, for leave to mortgage the trust fund to raise money to carry on the plantation of Mrs. Dowse, relying on section 2327 of the Georgia code for authority for such a step. The court granted the prayer of the petition, and the trustee executed, as such, a note for $2,000 and a mortgage securing it. · This note came into the hands of the complainant, who filed this bill to enforce the mortgage.

Opinion by ERSKINE, J.

Two distinct views of this cause were presented by counsel for plaintiffs; and it was argued that the maintenance of either would warrant a decree for the plaintiff. First, that the power in the marriage articles to sell or exchange any portion of the trust estate and re-invest the proceeds in other property upon the same limitations and trusts conferred authority to execute a mortgage. Or, secondly, the authority to mortgage was valid under the decretal order of the chancellor by virtue of section 2327 of the code. In support of the first view Allan v. Backhouse, 2 V. & B., 65, was relied on. There the testatrix, after devising leasehold estates, held upon bishops' leases for lives, and all her other real estate to certain uses, directed the renewal of her leaseholds, and that the expenses should be raised out of the rents and profits of the leaseholds or any part of the freehold estates, to the end that they might be enjoyed therewith as long as might be. The vice-chancellor said that the word "profits," ex vi termini, includes the whole interest, as a devise of the profits would pass the land itself. And he held that as the purpose for which the money was to be raised out of the rents and profits might require it suddenly, for the lessors could not be expected to wait for the gradual payment out of the rents, and as there was nothing in the will to give these words the abridged sense of annual profits, except the purpose to preserve the estate entire, he warranted the sacrifice of part for the preservation of the remainder, and decreed that the gross sum for fines on renewal of leases, as well as to

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