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Trustee Liable for Fraud by Solicitor.

tain person, and on such evidence being produced, were to pay the fund to the vendors. The vendors in the following year, thinking that they had sufficient evidence of the death, called upon the trustees either to pay the fund to them, or to pay it into court under the Trustee Relief Act. The trustees having refused to do so, a bill was filed to compel them to pay over the fund.

Held, that the trustees having caused unnecessary expense by their refusal to pay the fund into court, were only entitled to such costs as they would have got if they had paid the fund into court under the Trustee Relief Act, and the vendors had presented a petition for the payment of the fund to them.

Investment by Trustees-Permanent Securities-Railway Stock.

A testator directed his trustees to lay out and invest £15,000 upon Government, real, or permanent security, or in such stocks, funds, or shares as they might in their absolute discretion think fit, and pay the interest to his wife for life; the capital to be for his children.

The trustees, with the sanction of the widow, invested a portion upon railway stock bearing a high rate of interest. Upon her death the securities were greatly reduced in value.

Held, that the trustees were bound to invest upon securities of a permanent nature; that, in the absence of evidence to the contrary, it must be assumed, from the rate of interest, that those investments were not permanent, and that the £15,000 must now be invested for the benefit of the children.

Trustee and Cestui que Trust-Loss of Trust Fund-Negligence of Trustee's Solicitor-Liability of Trustee.

Trustees advanced part of their trust moneys on the mortgage of certain real estate. Their solicitor, having two years previously acted as solicitor for another mortgagee who then advanced money on the same real estate, which was subsequently paid off, did not require a fresh abstract, nor did he inquire whether any fresh incumbrances had been executed on the property.

It turned out that the property was subject to a prior mortgage, and on being sold, the proceeds were insufficient to pay in full the amount secured by the prior mortgage and that advanced by the

trustees.

Held, that under the circumstances the loss must fall upon the

trustees.

Trustee-Loss of Trust Fund-Investment on Mortgage-Fraud of Solicitor.

A trustee is liable for the loss of a trust fund caused by his solicitor having committed a fraud on the occasion of the investment of the fund on mortgage.

Shares in an Unlimited Bank.

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Upon the occasion of the investment of a trust fund on mortgage, the trustee employed the same solicitor as the mortgagor. Subsequently he had reason to suspect the sufficiency of the security, but took no steps to inquire into the matter. It afterwards turned out that the solicitor had practised a fraud on the trustee, and the security was insufficient.

Held, that the trustee was liable for the loss occasioned to the

estate.

Liability of Trustees-Shares in an Unlimited Company-Costs.

A testator gave all the residue of his estate and effects, whether real or personal, to four trustees upon trust to sell his freehold estate and such part of his personal estate, immediately after his decease, or as soon thereafter as the trustees might see fit to do so, and either by auction or private contract, as to his trustees should seem proper. The personal estate comprised shares in an unlimited banking company, which was of high standing and repute at the testator's death. The trustees retained the shares for two years and a quarter, when the bank suspended payment, and the company was wound up. Three months after the testator's death the trustees also accepted new shares in the bank, which were allotted to the holders of old shares, and the entire loss to the estate was £1910.

Held, upon a bill filed to administer the estate by the next friends of infants who were entitled to one-third of the property, that the trustees, although they had acted in perfect good faith, and, as they considered, best for the interests of the cestui que trust, were bound to have sold the bank shares within a reasonable time, which was one year from the testator's death; and were, therefore, liable to make good the loss sustained on both sets of shares.

Held also, that one of the trustees, who did not attain twenty-one till seventeen months after the testator's death, was equally liable with his co-trustees.

So much of the costs of the administration suit as were caused by the default of the trustees were ordered to be paid by them.

We shall conclude this chapter with a quotation from a legal text-writer of a half century since, the equity of which quotation we believe to be as indisputable now as at the time it was written.

"It may be observed, that the investment of trust money on personal security, without an express provision empowering the act, is a breach of trust. But it is established by all the cases, that if the cestui que trust joins with the trustees in that which is a breach of trust, knowing the circumstances, such a cestui que trust cannot afterwards complain of the breach of trust; and either

20

Executors for Special Purposes.

concurrence in the act, or acquiescence without original concurrence, will release the trustees; but that is only a general rule, and a court of equity will inquire into the circumstances which induced concurrence or acquiescence, recollecting, in the conduct of that inquiry, how important it is, on the one hand, to secure the property of the cestui que trust, and, on the other, not to deter men from undertaking trusts, from the performance of which they seldom obtain either satisfaction or gratitude."

CHAPTER IV.

WHO MAY BE, WHO MUST NOT BE, AND WHO OUGHT NOT TO BE, AN EXECUTOR.

AN infant may be appointed an executor, but he cannot act or undertake the duties until he attain majority; and in the meantime the court may appoint some person to act as administrator with the will annexed.

A married woman may be an executrix, but before the court will grant probate, the husband must consent in writing to her so acting.

And it may be laid down as a rule, that all other persons of sound mind, and not restricted in their movements by judicial sentence of any kind, are eligible for the office.

An executor may be appointed for a special purpose, just as a trustee may be constituted the devisee for a particular property, while the remainder of the estate may be devised to other trustees. Thus one executor may be deputed to take charge of testator's live and dead farming stock, another may be appointed in respect of his household furniture, and a third for the collection and application of his debts; and, in addition to all these, a general executor may be appointed.

It is a rare occurrence for executors to be appointed for special purposes like these, but they are cursorily glanced at here to apprise the reader that such extraordinary directions may be made, and have legal operation.

We will just notice, in passing, the difference between a will of personal estate and one appertaining to real property or estate, which, divested of legal language, means property bounded by no limit as to length of time, in contradistinction to leaseholds of any kind, however long the term may be,— if it be even ten thousand years,—and we have known some terms of this length.

Objectionable Executors.

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A will embracing the former kind of property has always required to be proved in the proper court, in which court the original will is deposited, and a copy on parchment issued with what is now termed the "Probate act,"-not an Act of Parliament, but the act of granting probate,-is annexed to it under the seal of the court, and having thereon the stamp in all cases where duty is payable. This is called "the Probate," and this, and only this, confers on the executor the legal right to deal with the personal estate. A will, however, of the latter has always operated, and still operates, as a conveyance of freeholds, without the aid of any extraneous act to complete its force and effect. But we have always been of opinion that greater security is given to the devisee of freeholds by having the will proved, as it then becomes a matter of record; and if the original will be lost, an office copy will prove the title of the devisee to hold his property.

We shall now inform our readers who must not be an executor. An idiot, then, or one whose intellect is destroyed by age, disease, or intemperance, and such persons as have been deaf, dumb, or blind from their birth, and have consequently been deprived, the whole period of their existence, of the capacity for acquiring knowledge, are all necessarily incapacitated and incapable of filling the office of an executor.

Such persons as ought not to be executors, and which a testator would display great indiscretion in appointing, are those who have been convicted of theft, embezzlement, gamblers, persons notoriously addicted to wild speculations in the hope of amassing riches out of a small capital,--and the latter habit we take to be almost as ruinous in its tendency as a spirit of gambling. Even persons who manage to keep within the pale of the law, but whose practices are so acute as to be little more than gilded chicane, are almost as objectionable as those enumerated in the previous category. With regard to a person who is, or has been, a bankrupt, we have little to observe, beyond this, that, in such a case, a testator must use his discretion as to whether such is a desirable person to carry out his testamentary directions. We will, however, inform our readers that bankruptcy does not disqualify a man from being an executor. Nor is it right that it should; for, beyond question, some unfortunate bankrupts possess honour as bright and integrity as unimpeachable as many who are the owners of broad acres and unlimited monetary resources.

WHAT ACTS AN EXECUTOR MAY PERFORM BEFORE COMING TO A DECISION WHETHER HE WILL PROVE THE WILL OR RENOUNCE; ALSO AS TO THE FUNERAL AND THE EXPENSE THEREOF.

WE have before stated that an executor is at liberty to renounce, but this must be understood to mean before he has intermeddled with the trusts, or done any act connected with the estate beyond ordering the funeral, locking up and taking charge of the deceased's effects for safe custody, and making an inventory thereof, providing necessaries for his family, having his cattle fed, and doing acts of a similar nature, which could only be construed as acts of necessity and humanity, and those which almost any neighbour or friend of the deceased might take upon himself to perform. But our advice to an executor is to do as little as possible beyond burying the deceased, and locking up or placing in safe custody such articles as are liable to be lost, damaged, or destroyed before he come to a decision whether he will, or will not, prove the will.

What the expenses of the funeral should amount to are by some writers stated to be ten pounds, in case of a want of assets to pay all debts in full, while even this amount has been disallowed and cut down to two pounds in another case; and once it was decided, with reference to an insolvent's estate, that the only charges allowable were for the coffin, the bell, and fees to the clerk, the bearers, and the parson, but nothing for pall ornaments. We are not sufficiently learned in funeral "undertakings" to know the precise import of the words "pall ornaments," but it seems to us that the correct meaning must be coffin furniture or ornaments.

We trust, however, that in these times more liberal ideas prevail, and that a person who takes upon himself to order a funeral will rarely be confronted with such close shavers as those who would circumscribe the expenses within such narrow bounds.

Bearing in mind the dictum of Blackstone that the deceased must be buried in a manner suitable to his station, and the estate he has left behind him, little difficulty can arise.

Although funeral expenses are allowed before every debt or