out of his administration of it, a confidential agent who accepts a bribe, a doctor or solicitor who takes advantage of his position to obtain a gift from his patient or client,are each respectively a constructive trustee of what he has received. In all these cases, the constructive trust arises, not out of actual confidence reposed as to the property received, but out of the breach of the general fiduciary relationship between the parties.

One primary distinction between constructive trusts of this kind and constructive trusts imposed by law, where no fiduciary relationship subsists, is, that in constructive trusts arising out of fiduciary relationships, as in express and resulting trusts, time is, in equity, no defence to an action for the recovery of the property subject to the trust (p). In the case of constructive trusts, where no fiduciary relationship subsists, the constructive trustee can always rely on lapse of time.

PART II.-ADMINISTRATION OF TRUSTS.

Office of Trustee.--Trustees are, in the first instance, almost invariably appointed by the settlor. When the trust is created inter vivos, they show their acceptance of the trust by becoming parties to the instrument creating it. When it is created by will, they are entitled to accept or disclaim the trust as they please. A married woman must disclaim by deed (Real Property Act, 1845, s. 7); but a man (or feme sole) may disclaim by any writing or conduct which shows that he does not intend to accept the trust, in which case, though the trust property is bequeathed to him, no interest in it will vest in him (7). If all the persons nominated by the settlor as trustees disclaim, the court will nevertheless see that the trust is administered; it being a maxim of equity that the court will not allow a trust to fail for want of a trustee. In the same

(p) See infra, p. 526.

(q) Re Birchall, Birchall v. Ashton (1889), 40 Ch. D. 436.

way, a trust may be accepted by the trustee, either expressly, or implicitly by acting as trustee. If a trustee accepts any part of the trust, he accepts it all (r).

Once a person has accepted the trust, he is not entitled to retire when he pleases, unless the trust instrument gives him an express authority to do so. Usually this authority takes the form of a power vested in the tenant for life of the trust property, or some other person, to appoint new trustees in place of any of the original trustees who desire to retire. Whether there is any such power contained in the trust instrument or not, if there are more than two trustees, and there is nothing in the trust instrument to the contrary, one trustee may, with the consent of his co-trustees, and of the person entitled to appoint new trustees (if there is any such person), retire from the trust (s). He may also be discharged from the trust by the consent of all the cestuis que trustent, provided these are of full age and sound memory. In default of any of these, the trustee may obtain an order from the court discharging him, and appointing another trustee, or others, in his place.

Besides the statutory power referred to above, new statutory powers to remove trustees and appoint others in their places have been conferred by sections 10 and 25 of the Trustee Act, 1893, which codifies a large part of the law relating to trustees. By the first of these enactments, where a trustee, either original or substituted, and whether appointed by the court or otherwise, is dead, or remains out of the United Kingdom for more than twelve months, or desires to be discharged from all or any of the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, then the person or persons nominated for the purpose of appointing new trustees by the instrument, if any, creating

(r) Re Lord and Fullerton, [1896] 1 Ch. 228.

(s) Trustee Act, 1893, s. 11.

the trust, or, if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representative of the last surviving or continuing trustee (which includes a sole (t) and a last retiring trustee) may, by writing, appoint another person or other persons to be a trustee or trustees in the place of the trustee dead, remaining out of the United Kingdom, desiring to be discharged, refusing, or being unfit, or being incapable as aforesaid. Large powers are given, on making such appointment, to vary the number of trustees, and to appoint separate sets of trustees for separate parts of the trust property. Any assurance necessary to vest the trust property in the new trustees is to be executed on such appointment; and the new trustees, both before and after the property is so vested, are to have the same powers, authorities, and discretions as the original trustees. This section applies only in so far as it is not excluded by the instrument creating the trust.

By section 25, the court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the court, make an order for the appointment of a new trustee or new trustees, either in substitution for, or in addition to any existing trustee or trustees, or although there is no existing trustee. Under sections 26 to 35 the court, in making an order to appoint new trustees, or in cases where it is difficult or impossible to secure a conveyance of land or a transfer of securities held in trust, may make an order vesting the land or securities in the new trustees. By section 37, the new trustees appointed by the court are to have the same powers, authorities, and discretions, as the original trustees.

Trustees are invariably made joint tenants of the trust property, and accordingly, on the death of one, the whole

(t) Re Shafto (1885), 29 Ch. D. 247.

trust property remains in the survivors. The powers and discretions also remain in the survivors, unless an intention is expressed to the contrary in the trust instrument. On the death of a sole or last surviving trustee, the trust property and the trustee's powers, notwithstanding any attempted devise of the trust property, devolve, since December 31st, 1881, on his legal personal representative (u); except where the trust property is copyhold («), when the old law applies, and the copyhold devolves, either on the trustee's customary heir, or on his devisee. It is submitted that by "legal personal representative" is meant, the executor or administrator who is appointed to administer the trustee's personalty in the country or district where the trust property · whether it is land or goods-is situate (y).

A trustee receives no remuneration for his trouble in administering the trust, unless the trust instrument expressly provides to the contrary. Provision has, however, been lately made by statute () for the appointment by the court, on the application of either an existing trustee or a cestui que trust, of a judicial trustee, either jointly with the existing trustee or as sole trustee, or in place of all or any trustees; and he may be remunerated. A judicial trustee is an officer of the court, and must each year submit his accounts to the court. The fact that a trustee receives remuneration does not increase his liability, or alter his duties as trustee (a); though it has been suggested, that his acceptance of remuneration may be considered as constituting an implied undertaking on his part, that he has competent knowledge and skill in discharging the business of the trust (b).

a trustee.

Any person competent to hold property may be made But the court will not appoint a person who is not sui juris, nor as a rule, one who is out of the jurisdiction, or is of bad character. A married woman may now be appointed as freely as a man (c). The donee of a power to appoint new trustees cannot appoint himself (d).

Estate taken by Trustees.-As has already been said, the question whether a trust is simple or special is important sometimes, as determining whether there is any trust at all. If freehold land is limited to trustees on a simple trust, then, unless it is also limited to their use, they take no estate whatever in the land, which, by virtue of (or, in the case of a will, by analogy to) the Statute of Uses, 1535, passes through them to the cestuis que trustent. This rule, however, does not apply to trusts of the equitable estate, or of leaseholds or pure personalty (e).

Where a trust of freehold land is created, the extent of the estate taken by the trustees will depend upon whether the trust is created inter vivos or by will. If it is created inter vivos they will take, precisely as in the case of any other conveyance, the estate limited to them by the instrument transferring it to them (f). But if it is created by will they will take, even where the words of the will are sufficient to pass the fee simple, only such an estate as is necessary for the execution of the trust (g). Thus, if freeholds are left to A. and B. and their heirs in trust to pay the net rents to C. for life, and on C.'s death in trust for D. and his heirs, A. and B. take only an estate for C.'s life—that is, only as long as their active duties as trustees continue (h).

(c) Re Dickinson's Trusts, [1902] W. N. 104.

(d) Re Newen, [1894] 2 Ch. 297. (e) See Underhill and Strahan, Interpretation of Wills and Settlements, p. 180.

(f) Colmore v. Tyndall (1828), 2 Y. & J. 605.

(g) Wills Act, 1837, ss. 30, 31. (h) Blagrave v. Blagrave (1849), 4 Exch. 550.