*

for £400, and a bequest of the residue to the executors. The moment the executors assented to the bequest they became trustees for their cestui que trust; the £400 then ceased to be part of the testator's assets, and it became a trust fund for the benefit of the plaintiff for life, and afterwards for his children; and the executors became mere trustees for them of that fund. * It is a case of every day's occurrence for executors to be turned into trustees." The assent in the case before us was unequivocal. The taking of the bond for the amount of this legacy, their obtaining the assent of Margaret Cameron to the terms of the bond, and the payment of the £300 legacy to Mrs. McTavish, were each of them acts of assent.

I think further, although, in my opinion, it is not necessary for the determination of this case, that the money in question was made a trust fund by the terms of the will itself.

་་

In Thomson v. Eastwood, L. R. 2 App. Ca. 215, in the House of Lords, a legacy was given in the following terms: "I hereby appoint my after named executor, Charles Eastwood, my youngest brother, to be trustee for the following legacies" several were then named, and the will went on'Considering that money will be more essential to my dear brother Samuel Eastwood * * than a distant possession of land, I bequeath to my said eldest brother Samuel, during his natural life the interest of £3,000, and, after his death, to his eldest son James Eastwood, by his last wife Margaret Javoux, or Moron, or Eastwood, till he attains the age of twenty-one, and then to obtain the principal. I order that my youngest brother Charles Eastwood shall be liable to all my lawful debts of every description, and pay them as soon as he can, and also pay my legacies when regularly due," and all expenses, &c., "and to enable him to do all this, I bequeath, unconditionally, to him all my estates and landed property, with all emoluments belonging to them, in the County of Armagh; I also bequeath to him, the said Charles, all my estates," &c., "with all their emoluments, in the County of Louth, or elsewhere," &c.

* *

The defence in that case was, as it is in this, the Statute of Limitations. Lord Cairns, Lord Chancellor, said, p. 228: "Upon the construction of the will I am bound to say that

I cannot entertain any doubt whatever that that which is created is not merely a charge of a legacy, but is a distinct and clear trust for the payment of that legacy." So Lord Hatherley, p. 245: "Upon the whole of that will, it appears to me impossible to doubt that a distinct and express trust is created for the payment of this legacy." Lords O'Hagan and Blackburn expressed similar views, and Lord Gordon concurred.

It is true that in the case before us the word trust is not used in the will, as it was in the two cases that I have last cited; but it is quite clear that a trust may be well created without the use of the word trust, as it is well put by Mr. Lewin: "A person may declare a trust either directly or indirectly the former, by creating a trust eo nomine, in the form and terms of a trust; the latter, without affecting to create a trust in words, by evincing an intention which the Court will effectuate through the medium of an implied trust:" Lewin on Trusts, 6th ed., p. 95. The words used in the will before us are quite sufficient for the purpose.

:

I think that upon the evidence the defendant is properly chargeable with interest from the time that the moneys. in question came to his hands.

There is not, in my opinion, anything in the objection that a debt of the testator still remains unpaid. As to debts, Mr. Armour only says: "There were some small debts. * One of them is not paid yet," he does not give the amount or say why it was not paid. When he gave his evidence twenty-two years had elapsed since the death of Hugh. We have no account of the interest payable on the legacy bequeathed by John Dougald Cameron, whether applied in payment of debts, or how; or whether merely not looked after by the executors of lugh. This small old unpaid debt can be no reason for the man who has received these moneys not accounting for them.

Nor is the circumstance of the executors not advertising for Edward Duncan, as directed by the will, any reason for the man receiving moneys not accounting for them. It would be making his own wrong an excuse for not paying over money which, if he had done what the will

directed to be done, would have been payable long since to Edward Duncan if he had turned up, or to Margaret Cameron if he had not. Twenty years have elapsed since the expiry of the five years. The objection suggested is not taken by the reasons of appeal, and the only difference would be, not that Donald Campbell should not pay the moneys received by him, but that he should pay them into Court; but under the circumstances I do not think it necessary to make any change in that respect any more than in any other respect in the decree.

Upon the whole my opinion is, that the appeal should be dismissed, with costs.

BURTON, J.-It appears that Margaret Cameron was consulted in reference to the bond given by Jacques & Hay, and her right to the money admitted subject only to the contingency of Edward Duncan Cameron, making a claim to it within five years.

Mr. Armour the co-executor with the appellant, states "She was entitled to the fund and she concurred as we did in the view that it was useless advertising for the brother." And £100 was paid to her on her furnishing security to refund in the event of the brother making a claim. After that could the executors, in the event of the death of the brother being established, dispute her right to the legacy? That they did not really apprehend any encroachment upon the fund from debts of the testator is manifest from their paying over in full the other legacy of £300. It raises at all events a very strong presumption that all the debts of the estate were then satisfied.

It is not too much to assume that when the right of Margaret Cameron was thus recognized, the executorial duties of these executors had ceased. There is no evidence of the subsequent payment of any debt or the performance of any duty pertaining strictly to their character as'executors. The fund in the hands of Jacques & Hay they then held in trust for the legatee, of whom the present plaintiff is the personal representative, and a person so situated in posses47-VOL. VII A.R.

sion of funds, which he knows not to be his own, but which he chooses to misapply as this appellant has done to his own use, is not entitled to have the law strained in his favour.

The executors in this case were bound by the terms of the will to invest this money, and apply the interest in endeavouring to trace out the brother; and it may be that by reason of the neglect of their duty in advertising, as directed by the will, they may have left themselves exposed to an action by him in the event of his being alive and making a claim, but that ought not to afford them any answer against this claim. Had they performed their duty Margaret Cameron would have been entitled to claim the legacy at the expiration of the five years. She was admitted to be the party entitled, and the fund was set apart for this specific payment, and ceased in my opinion to bear the character of a legacy; and when the appellant appropriated it to his own purposes he was guilty of a breach of trust; and if the bill has been erroneously framed as a bill to enforce payment of a legacy when it should have been to compel the appellant to account for a breach of trust, it should be amended so as to conform with the evidence, and a decree made in accordance with such a bill.

I am of opinion therefore that this appeal should be dismissed, and the decree affirmed, with costs.

PATTERSON and MORRISON, JJ.A., concurred.

NIXON V. MALTBY.

Landlord and tenant-Eviction-Surrender.

In an action to recover a year's rent on a covenant in a lease for three years, it was shewn that the defendant had harvested the crops on the farm, and that they, together with the barn and stable, were destroyed by fire before the expiration of the year, and that he was paid the insurance money; whereupon he left the farm, and the plaintiff entered, ploughed, and put in a crop. The plaintiff afterwards applied on several occasions to the defendant for payment of the rent, when the defendant said he had not any money. It was shewn that a proposition had been made to leave the matter to arbitration.

Held [affirming the judgment of the Judge of the County Court of Peel], that the acts of the plaintiff did not amount to an eviction, that there was not evidence to support a surrender in law, and that the plaintiff was entitled to recover; BURTON and PATTERSON, J J. A., dubitante.

THIS was an appeal by the defendant from the judgment of the Judge of the County Court of the county of Peel.

The action was originally instituted in the County Court of Halton, by John Nixon, against the defendant Richard Maltby, to recover payment of a year's rent, the declaration in which alleged :

"That the plaintiff, by deed, let to the defendant certain lands and premises, being composed of the east half of lot number nine, in the tenth concession of the township of Esquesing, excepting thereout five acres occupied by the orchard and dwelling house of the said plaintiff, to hold for three years from the first day of April, one thousand eight hundred and seventy-nine, at the yearly rent of two hundred and eighty-five dollars, payable for the first year of the said term on the fifteenth day of November, one thousand eight hundred and seventy-nine, and thereafter in semi-annual payments on the first days of October and April in each year, and the defendant, by the said deed, covenanted with the said plaintiff to pay him the said rent, as aforesaid, and one year's rent is now due and unpaid, and the plaintiff claims three hundred dollars."

To this declaration the defendant pleaded: First, Non est factum.

Second, "That before the said rent became due the said demised premises, and all the residue of the said term then to come and unexpired therein, were duly surrendered by act and operation of law, that is to say, by the defendant then giving up to the plaintiff and the plaintiff then accepting from the defendant the possession of the said demised premises, with the intention of then putting an end to the said term.