give effect to any title under it. So, if the legal title be by deed, the deed must be proved according to the local law. In this regard the legal title of a trustee does not differ from any other legal title, and he can every where enforce that title by legal proceedings, the same as any other owner. But, if the title is not derived from the jus disponendi of the owner, but solely from some act of the law, the effect of that act is confined to the territorial jurisdiction over which the law extends. This is the principle which has governed the cases of executors, administrators and guardians, and I see no reason why it should not prevail in regard to trustees appointed by local law. As the trustee, in such a case, derives his title, not from the jus disponendi of the owner, but from the law of the state under which he is appointed, this title, as well as the right to enforce it by legal remedies, must cease to operate when he enters a foreign jurisdiction. Whenever he seeks to exercise his powers in another state than that under whose laws he was appointed, he must first have his appointment repeated by the local tribunal having jurisdiction over the appointment of trustees.

$99. Rule as to the re-probate of a foreign will.

Now, as already intimated, had the present plaintiff been named in the will as trustee, he would have received the title to this estate from the jus disponendi of the owner, and this title would have enabled him to sue in this state on compliance with the formalities required by its laws. These formalities are the probate of the will in this state, and a bond for the due performance of the duty imposed by the will, so far as the property in this state is concerned. But the plaintiff received his appointment from the supreme court of New York. Still, the character of the title he took (assuming now that the latter court had jurisdiction, and that the appointment was that of a full trustee), and the character of the trust with which it is incumbered, depend wholly on the will by which the trust was created. No court, either of law or equity, could properly proceed a step in aid of the trustee until the will had been produced and probated here. Judge Redfield, in his Treatise on the Law of Wills (vol. 1, p. 401), remarks: "In those American states where the probate of wills is conclusive, both of real and personal estate, the courts of equity will not assume jurisdiction to compel the performance of a trust arising under a will proved in another state, but of which there has been no probate, or its equivalent, by filing a copy of the original probate in the state where the trust is claimed to be enforced, and into which state the funds belonging to the estate have been removed by the personal representatives. Such probate and administration is entirely local, and the personal representative appointed in one state, or his authority, cannot be recognized in any other state." This doctrine is supported by the cases of Campbell v. Sheldon, 13 Pick., 8, and Campbell v. Wallace, 10 Gray, 162, and, although reference is made in them to the statute of Massachusetts, the general principle is not dependent upon those statutes.

It would seem, then, that a trustee under this will, whether named in the will or appointed by the tribunal to which jurisdiction belongs, must, before he can maintain a suit in this state, prove the will in that probate district where the fund is in the hands of the defendant. Undoubtedly the judge of the probate court would be authorized to accept, as proof of the due execution and validity of the will, an exemplified copy of the same, with the foreign probate thereof in Illinois, the domicile of the testator. Indeed, the production of the will, with the proceedings and decree of the foreign court admitting the VOL. XXVIII -- 37

577

same to probate, would seem to exclude all other auxiliary probate here should follow as of course. of Lords Cases, 1.

proof, and to require that Enohin v. Wylie, 10 House

It is hardly necessary to add that the statutes of Connecticut authorize the probate of foreign wills in this state. This will has not been probated in Connecticut, nor is there any proof before this court that it has ever been probated in New York. An exemplified copy of the probate in Illinois is produced, but this would not aid this court, as it has no probate jurisdiction, and no means whatever to give effect to the will in this state. That must be done by the probate tribunals of the state. I do not overlook the fact that this fund has been brought into this state since the settlement of the estate; but that is not material. The fund is here, and it is incumbered with the trust. The fund and the trust are derived from the will, and the trustee must claim under that instrument, in addition to the authority conferred upon him by his appointment by the supreme court of New York. He must, therefore, probate the will in this state before he can enforce the title under this trust here. He must also be appointed in proper form, and by the proper tribunals, both in New York and in this state. The proper form undoubtedly is an appointment as trustee under the will to execute the entire trust, with a bond holding him responsible for the interest of all persons who have any rights, contingent or otherwise, under the will.

Which is the proper tribunal to make the primary appointmens of the trustee is not so clear. The trust was created by a will executed at the domicile of the testatrix, in Illinois, where her death took place, her will was probated, and her estate settled. But neither the fund, nor the primary cestui que trust, nor any other party interested in the same, resides in that state. The primary cestui que trust, Homer Collins, has his domicile in New York. But there is no fund there, nor, so far as it appears in the proof, has this will ever been probated there. Of course that omission could be easily supplied, if need be, before other proceedings are instituted. The will being proved and made effective in New York, where the primary cestui que trust resides with his grandparents, his natural guardians and protectors, it would seem to pertain to that jurisdiction to appoint the trustee and supervise the administration of the trust. Certainly the trust could be more intelligently and economically administered by a trustee residing in the vicinity of the ward. It was undoubtedly the expectation of the testatrix that the fund would be held in New York, as the trustee whom she appointed resided there, as well as the cestui que trust. The fund, which is now temporarily in the hands of the defendant, should be returned to the domicile of Homer Collins. The only object I have had in view, in touching upon this point, has been to suggest the question as to which jurisdiction should primarily appoint the trustee. As I have already stated, inasmuch as the trustee is to obtain the fund from one jurisdiction, and hold and execute the trust in another, he must receive an appointment from both. It may, after all, not be important which court first appoints him. The only material point is that he should be first appointed and qualified in New York, before any court sitting in Connecticut could properly direct the fund to be passed over to him. If it should be contended that Illinois, the domicile of the testatrix by whose will this trust was created, is the proper jurisdiction to appoint a successor, it may be replied that both the beneficiaries and the fund are situated elsewhere. There is nothing but the will, and its original probate in that state, upon which its jurisdiction can act; and, as the fund was

received by the deceased trustee under an appointment by the court in New York, and was brought into that state by him, and from there into this state, perhaps his administrator would be estopped from denying the authority of that court to appoint his successor. At all events, after a proper appointment there, the plaintiff can prove the will here, have his appointment repeated here, and then apply to the court of probate, under the statute of Connecticut already cited, or apply directly to this court.

It is no more than just to the defendant to say that he admits that his intestate received the property in question from Wadhams, the executor of the will, as trustee, and brought into this state the avails, which are now in the defendant's hands; and that, as administrator, he is ready and anxious to pay over whatever has come into his hands, after the account of his intestate, as trustee, shall have been properly adjusted. His only solicitude is to pay to the person properly authorized to receive, and in accordance with the law.

FRENCH v. EDWARDS.

(21 Wallace, 147-151. 1874.)

ERROR to U. S. Circuit Court, District of California.

STATEMENT OF FACTS.- French and others conveyed certain lands to Martin and Lynch, in trust, to sell the same under the directions of a committee provided for in the deed. No conveyance was to be made until the construction of a certain railroad was commenced in good faith, and the conveyance was to be void if the road was not completed within a year. The road was never commenced, and French brought ejectment to recover the land.

Opinion by MR. JUSTICE SWAYNE.

We have not found it necessary to consider the doctrine of subsequent conditions broken, upon which the case has been elaborately argued. Another ground of decision is disclosed which we think free from difficulty, and upon which we are satisfied to place our judgment.

$100. Failure of trust; duty of trustees to convey to grantor.

It appears that the trust deed to Martin and Lynch was executed on the 9th of January, 1863. By its terms it was to become void if the railroad was not completed within one year from its date. This suit was begun on the 30th of November, 1872, more than eight years after the time limited when the deed, upon the contingency mentioned, was to lose its efficacy. The court found that the road had not been begun, and that the company had not been incorporated. There is nothing in the record indicating that either event will ever occur. It was found that the plaintiff had a perfect title when the trust deed was executed. The grantees, therefore, took their entire title from him. It is a corollary that the other grantors had nothing to convey. Their joining in the deed, so far as the title was concerned, was matter of form, and not of substance. Without incorporation the railroad company could not share in the appointment of the committee under whose direction the lots were to be sold and the proceeds were to be distributed. Hence there could be no sale, and the trustees were powerless to do anything but remain passive and hold the title. The object of the conveyance had wholly failed, and the trust was impossible to be performed. The trust thus became barren. One more dry and naked could not exist. It was the plain duty of the trustees to reconvey to their grantor. He was the sole cestui que trust, and had the exclusive beneficial right to the property. A court of equity, if applied to, could not have

hesitated to compel a reconveyance. Under these circumstances such reconveyance will be presumed in equity and at law as well. In Lade v. Holford et al., Buller's Nisi Prius, 110, Lord Mansfield said that when trustees ought to convey to the beneficial owner he would leave it to the jury to presume, where such presumption might reasonably be made, that they had conveyed accordingly "in order to prevent a just title from being defeated by a matter of form." This case was approved, and the doctrine applied by Lord Kenyon in England v. Slade, 4 Term, 682. Three things must concur to warrant the presumption: (1) It must have been the duty of the trustee to convey. (2) There must be sufficient reason for the presumption. (3) The object of the presumption must be the support of a just title. Hill on Trustees, by Bispnam, 394. The case must be clearly such that a court of equity, if called upon, would decree a reconveyance. The present case is within these categories. The trustees being bound to reconvey, it is to be presumed they discharged that duty rather than that they violated it by continuing to hold on to the title. The trust was executory. When its execution became impossible, common honesty, their duty and the law required that they should at once give back to the donor the legal title which he had given to them. It is not necessary that the presumption should rest upon a basis of proof or conviction that the conveyance had in fact been executed. It is made because right and justice require it. It never arises where the actual conveyance would involve a breach of duty by the trustee or wrong to others. Like the doctrine of relation it is applied only to promote the ends of justice, never to defeat them. Hillary v. Waller, 12 Ves., 252; Best on Presumptions, 112. The rule is firmly established in the English law. Langley v. Sneyd, 1 Sim. & Stu., 55; Hillary v. Waller, supra; Goodson v. Ellison, 3 Russ., 588; Doe v. Sybourn, 7 Term, 3; Angier v. Stanard, 3 Mylne & K., 571; Carteret v. Paschal, 3 P. Will., 198. It is equally well settled in American jurisprudence. Doe v. Campbell, 10 Johns., 475; Jackson v. Moore, 13 id., 513; Moore v. Jackson, 4 Wend., 62; Aiken v. Smith, 1 Sneed, 304; Washburn on Real Property, 415, and note. Properly guarded in its application, the principle is a salutary one. It prevents circuity of action, with its delays and expense, quiets possessions, and gives repose and security to titles. Sir William Grant said: "Otherwise titles must forever remain imperfect, and in many respects unavailable, when, from length of time, it has become impossible to discover in whom the legal estate, if outstanding, is actually vested. . . What ought to have been done should be presumed to have been done. When the purpose is answered for which the legal estate is conveyed, it ought to be reconveyed." Hillary v. Waller, 12 Ves., supra. If it had been one of the facts found by the court below that the title was still in the trustees, the case would have presented a different aspect. Goodtitle v. Jones, 7 Term, 43; Roe v. Read, 8 id., 122; Matthews v. Wood, 10 Gill & J., 456. It is stated only as a conclusion of law, arising upon the facts found. Such findings of facts are regarded in this court in the light of special verdicts. "If a special verdict, on a mixed question of fact and law, find facts from which the court can draw clear conclusions, it is no objection to the verdict that the jury themselves have not drawn such conclusions, and stated them as facts in the case." Monkhouse v. Hay, 8 Price, 256. The presumption of the reconveyance arises here, with the same effect upon the specific findings, as if it had been expressly set forth as one of the facts found.

The conclusion of law that the title was still in the trustees was, therefore,

a manifest error.

On the contrary, it should have been presumed that Martin and Edwards had reconveyed, and that the title had thus become re-invested in the plaintiff, and the court should have adjudged accordingly. Judgment reversed and the case remanded with directions to proceed in conformity to this opinion.

§ 101. Interpretation

Construction.- Where land is conveyed “in trust," but no beneficiary is described, parol evidence is admissible to show the cestui que trust intended. Railroad Co. v. Durant,* 5 Otto, 576.

§ 102. Land was conveyed to persons in trust to sell and convey in fee-simple absolute, and to pay the proceeds to the United States, and after a certain sum was paid to reconvey the balance to the grantor. Held, that the conveyance was not in any sense a purchase by the United States, but vested in the trustees a legal estate commensurate with that which they were to convey. Neilson v. Lagow,* 12 How., 98.

§ 103. One of the trusts of an assignment was to pay "$8,490 on custom-house bonds, on which M. is surety," M. being one of the assignees; he was surety on bonds to a less amount, but the debtor in fact owed bonds to the custom-house to the amount of $8,257. It was held that no bonds were included in the trust but those on which M. was surety. United States v. Langton, 5 Mason, 280.

104. Property was conveyed in trust to be divided among "such of " M.'s "children as M. should by will appoint, and "for want of such appointment then in trust for the use of such of said children as shall be living at the death of said M., and the issue of such of said children as may then be dead." Held, that M. might by will appoint a share of the property to grandchildren who were the children of a deceased child of M. Ingraham v. Mead,* 3 Wall. Jr., 32.

§ 105. A person devised all his property to his wife except his outstanding debts, which he directed her to collect and pay to three persons whom he should afterwards name; his wife was also named as executrix. No persons were ever named. The wife collected the debts, and it was held that she did not take as trustee by implication, but held the property simply as executrix, and that it belonged to the testator's heirs. Wisner v. Ogden,* 4 Wash., 631. § 106. H., being in prison for debt, conveyed his farm to S. for a small consideration, and then took the poor debtors' oath and was discharged. A., however, continued to occupy the farm for twenty years. S. afterwards mortgaged the premises to B., and H. leased the premises of B., paying him interest as rent. Suit against H. to foreclose the mortgage was brought, when H. procured D. and G. to redeem the mortgage, giving them a quitclaim deed of the land. Held, that in view of other circumstances giving color to the transaction there was a trust resulting to H. in the transaction with S., but that it was void, as being in fraud of H.'s creditors, and that although this trust was void, yet the transaction with B. and D. and G. afterwards created a valid trust in favor of H. Hunter v. Town of Marlboro,* 2 Woodb. & M., 168.

§ 107. J., who was unable to complete a purchase of land for want of funds, released all his title to E., who completed the purchase and advanced certain sums of money for the benefit of J., agreeing to convey the lands to J. when he should be repaid his advances and interest. Held, that this created a trust in favor of J. which was not within the statute of frauds, especially as E. at the time of the transfer agreed to execute a declaration of trust and leave it among his private papers for the benefit of J. in case of accident. Jenkins v. Eldridge,* 3 Story, 181.

§ 108. A will executed in 1777, which devised certain lands in Maine to trustees and their heirs to the use of R. (the testator's son) for life, remainder for his life in case of forfeiture to the trustees to preserve the contingent remainders; remainder to the sons of R., if any, as tenants in common in tail, with cross-remainders; remainder to R.'s daughter, E., for life; remainder to trustees to preserve contingent remainders during her life; remainder to the sons of E. in tail, did not vest the legal title in fee-simple in the trustees. The life estate of R., and the contingent remainders limited thereon, were legal estates. Webster v. Cooper, 14 How., 488.

§ 109. A bank being forbidden by law to hold real estate for the purpose of securing a debt due to it, and which was a lien on certain land, procured F. to purchase the land and take the title in his name for its benefit. The bank furnished the money, for which he gave it his note, and it agreed to save him harmless. F. conveyed the land to a trustee of the bank, nominally to secure the payment of his note, and directed the surplus, if any, to be paid to the trustees of the bank. Held, that F. held the title as a naked trustee without interest, and that no interest in the land descended to his heirs. Zantingers v. Gunton,* 19 Wall., 32.