The answers to these questions, which are really questions of the construction of documents-often documents of the sixteenth century, or even earlier are determined by rules ultimately settled by the House of Lords in numerous cases (e). (1) Where an annual sum, amounting to the whole of the then rents of an estate, is by the will or deed of foundation apportioned among different charities, and the rents afterwards increase, the charities are entitled to share among them the improved as well as the original rents (ƒ). (2) If by the original instrument of foundation the founder has expressly or implicitly declared his intention to devote the whole estate to charity, this general intention prevails, though in his particular appropriation he may have failed to exhaust the rents, and the whole estate, however much it increases in value, is devoted to charitable uses (g). (3) Where the founder of a charity, without expressing any general intention to devote the whole of his gift to charity, conveys lands to trustees for the purpose of securing certain pecuniary benefits of specified amounts to various charitable objects and the sums so devoted to charity do not exhaust the rents, but there is no disposition of the surplus, the presumption is that the surplus rents were intended as a bounty to the trustees in whom the estate is vested, i.e., they take beneficially subject to certain specific trusts (h). (4) Where under a similar gift there is a disposition of the surplus in favour of the trustees, the question is more difficult. (a) It may be that the founder intended

(e) These rules are stated by Lord ELDON in Attorney-General v. Mayor of Bristol (1820), 2 Jac. & W. 294, p. 316; Lord ST. LEONARDS in Mayor of Southmolton v. Attorney-General (1854), 5 H. L. Cas. 1, p. 32; Lord CRANWORTH in Mayor of Beverley v. Attorney-General (1857), 6 H. L. Cas. 310, p. 319; Attorney-General v. Dean and Canons of Windsor (1860), 8 H. L. Cas. 369, p. 405.

(f) Thetford School Case (1610), 8 Co. 130 b; Attorney-General v. Johnson (1753), Amb. 190; Mercers' Co. v. Attorney-General (1828), 2 Bli. (N.S.) 165; Attorney-General v. Wax Chandlers' Co. (1873), L. R. 6 H. L. 1.

(g) Attorney-General v. Arnold, supra; Attorney-General v. Drapers' Co. (1840), 2 B. 508.

(h) Attorney-General v. Mayor of Bristol (1820), 2 Jac. & W. 294 ; Attorney-General v. Trinity College, Cambridge (1856), 24 B. 283; Attorney-General v. Dean and Canons of Windsor (1860), 8 H. L. Cas.

the gift of the surplus to carry with it any increase in the rents of the property; and this interpretation is not rebutted simply by the fact that the surplus is given as a fixed sum (i). (b) It may be that the founder intended that the trustees should share proportionally with the other beneficiaries in an increase of the rents, and this interpretation is not rebutted simply by the fact that the gift to the trustees is described as a gift of the surplus or overplus. This inference is particularly probable where the trustees themselves exist for charitable purposes; but it is not confined to such cases (k).

4. Gifts to charitable uses are, in one sense, not subject Application to the rule against perpetuities. This expression must not of rule against perpetuities. be misunderstood; a gift to a charity upon a remote event is (except in one case hereafter to be mentioned) incapable of taking effect just as if it had been to an individual. But a gift to a charity is good, although the result of the gift is to fetter the free circulation of property (1), while a gift for a non-charitable purpose is void if the gift cannot be carried out without keeping the corpus intact for an indefinite period (m). Moreover, it has been held in several cases, that where property is given to one charity, it may be validly given over to another charity upon a remote event, e.g., if the first charitable donee neglects to maintain the donor's tomb (n).

Statutes of

Mortmain.

5. The Mortmain Act, 1736 (o), avoided gifts by will to Effect of charitable uses of land, money to be laid out in land or any estate or interest therein. The Act also avoided gifts of any charge or incumbrance on land. This Act was repealed and in substance re-enacted by the Mortmain and

(i) Mayor of Southmolton v. Attorney-General (1854), 5 H. L. Cas. 1; Mayor of Beverley v. Attorney-General (1857), 6 H. L. Cas. 310, p. 328. (k) Attorney-General v. Coopers' Co. (1840), 3 B. 29; AttorneyGeneral v. Drapers' Co. (1841), 4 B. 67.

(1) Goodman v. Mayor of Saltash (1882), 7 App. Cas. pp. 642, 650. (m) Thomson v. Shakespear (1860), 1 D. F. & J. 399; Carne v. Long (1860), 2 D. F. & J. 75. See In re Clarke, [1901] 2 Ch. 110.

(n) Christ's Hospital v. Grainger (1849), 1 Macn. & G. 460; In re Tyler, [1891] 3 Ch. 252.

(0) 9 Geo. 2, c. 36.

Charitable Uses Act, 1888 (p). The Act of 1888, however, used a different phraseology from the Act of 1736 in describing the property, the gift of which was prohibited, as it omitted the words "charge or incumbrance" while including in the definition of land "any estate and interest in land." It is uncertain whether this difference in phraseology was intended to alter the law (q). The Mortmain and Charitable Uses Act, 1891 (r), provides that land in the Act of 1888 and in the Act of 1891 shall not include money secured on land or other personal estate arising from or connected with land. The Act of 1891 further provides that land may be assured by will to any charitable use. The land, however, must be sold within a limited period (s). Any personal estate by will directed to be laid out in the purchase of land to any charitable uses shall be held to the charitable uses as though there had been no direction to lay it out in the purchase of land (t). The Act only applies to the will of a testator dying after August 5th, 1891 (u). A gift of land upon trust for sale is outside the Act, but the charity to whom the proceeds are given cannot elect to take the land unsold. The trustees are bound to carry out the trust for sale within a reasonable time after the testator's death (x).

(p) 51 & 52 Vict. c. 42.

(1) See In re Pickard, [1834] 3 Ch. 704. (r) 54 & 55 Vict. c. 73.

(x) In re Sidebottom, [1902] 2 Ch. 389.

(8) Section 5.
(t) Section 7.
(u) Section 9.

CHAPTER VIII.

TRUSTEES: THEIR DUTIES AND POWERS.

stitutes a

To constitute a person a trustee in the strict sense of the What conterm, he must have been properly appointed, and he must trustee ; have accepted the trust. An appointment in the case of a appointment. private trust to be effectual must be made either (1) by the author of the trust; (2) under a power conferred by him; (3) by the court under the Trustee Act, 1893 (a), or (4) by the court under the Judicial Trustees Act, 1896 (b). No formal act is necessary to constitute an acceptance of a trust. Lord ROSSLYN held that the execution of a release by one trustee to his co-trustees amounted of itself to an acceptance of the trust (c). Lord ELDON doubted the correctness of this decision (d). In Urch v. Walker (e) a testator gave a pecuniary legacy to A. and B. upon certain trusts, and also gave leaseholds to the same persons upon trust, in the events which happened, for C. absolutely. A. and B. by deed reciting that they never intermeddled in the trust declared by the will, conveyed the legal estate in the leaseholds to C. Lord COTTENHAM held that the execution of the deed was of itself an acceptance of all the trusts of the will. Where the creator of a trust gives several items of property to trustees to hold upon the same trusts, a person named trustee who accepts the trusts with reference to any one item accepts it as to all. Thus, a person named trustee cannot accept the office as to foreign land and disclaim it as to land within the jurisdiction or vice versa (f). Moreover, if a testator creates distinct trusts by will of different portions of his property, but appoints the same persons as trustees of all the trusts,

(a) 56 & 57 Vict. c. 53.

(c) Crewe v. Dicken (1798), 4 Ves. 97.

(b) 59 & 60 Vict. c. 35.

(d) Nicloson v. Wordsworth (1818), 2 Sw. 365.

(e) (1838), 3 My. & Cr. 702.

(f) In re Lord and Fullerton's Contract, [1896] 1 Ch. 228.

Duties and powers of trustees.

it would appear that a person who accepts one trust becomes ipso facto a trustee of the others (g). Where a legacy is given to an executor to hold upon certain trusts, he becomes a trustee of the legacy upon assenting to the bequest (h). Where a residue or share of residue is given to the executor on trust, he becomes a trustee as soon as the estate has been cleared and the residue ascertained, i.e., as soon as the debts, funeral and testamentary expenses and the pecuniary legacies have been paid, and the assets specifically bequeathed have been handed over to the specific legatees (i).

A distinction is generally drawn between the duties and the powers of trustees. This distinction has no reference to the acts of dominion which trustees exercise over the

trust property. Every act which a trustee properly performs in the administration of his trust is done because the trustee is under a duty to do it. But the general law and the instrument creating a trust in certain cases leave the trustee no discretion whether he will or will not do an act: they impose upon him an absolute obligation to do it independent of his own volition; and in this event he is said to be under a duty to do it. In other cases they make his obligation to perform the act depend upon his own judgment: he has a discretion whether he will perform the act or not and in this event he is said to have a power. The question, therefore, whether a trustee has a duty or a power slides into the question whether the trustee has a discretion or not.

A trustee never has an arbitrary power; he cannot deal with trust property as an absolute owner can deal with his own property; his powers are always fiduciary. If property is vested in a trustee upon trust for sale, he has no discretion whether he shall sell or not. He has only a discretion which varies with the circumstances of the case and the language of the instrument creating the trust as to the time

(g) Urch v. Walker, supra.

(h) Phillipo v. Munnings (1837), 2 My. & Cr. 309; Dix v. Burford (1854), 19 B. 409.

(i) In re Smith (1889), 42 Ch. D. 302.