44. A trustee will however be allowed all costs and But allowed all Costs and expences which he has been put to in the execution Expences. of his trust; unless he has been guilty of improper Treat. of Eq. conduct.

Id.

Bradburn,

128.

Trott v.

45. Thus if a trustee sues in Chancery for the Amand v. trust estate, and obtains a decree, with costs; and 2 Cha. Ca. afterwards the cestui que trust exhibits a bill against him for an account of the trust estate; the trustee Danson, 1 P. will be allowed in his disbursements his full costs, 7 Bro. Parl. Wms. 780. and will not be concluded by the costs that taxed.

were Ca. 266.

455.

46. It is said by Lord King to be a rule that the 2 P. Wms. cestui que trust ought to save the trustee harmless, as to all damages relating to the trust: therefore where a trustee has honestly and fairly, without any probability of being a gainer, laid down money, by which the cestui que trust is benefited, he ought to be repaid.

47. In all modern deeds whereby trusts are created, there is a clause authorizing the trustees to reimburse themselves all costs and expences which they shall be put to in the execution of their trust.

48. It was formerly held, that a trustee should not Trustees seldom permitpurchase any part of the trust estate for himself, on ted to puraccount of the dangerous consequences that might chase the ensue from such a practice.

Gardner,

Thus it was declared by Lord Hardwicke, that the Davison v. Court of Chancery will not suffer a trustee to pur- MSS. R. chase the estate of the cestui que trust, during his 1743. minority; though the transaction were fair and honest, and as high, or a higher price given than any other person would give. This the Court had always discountenanced, upon account of the general inconvenience that might happen from bargains of this kind. But where there was a decree for sale of a

Whel pdale v. Cookson, 1 Ves. 9.

trust estate, and an open bidding before the Master, there the Court had permitted the trustee to purchase; for that was an open auction of the estate. At the same time, he said, the rule of the Court against trustees purchasing, did not extend to trusts for persons of full age.

49. In another case, where on a devise to sell for payment of debts, the trustee himself purchased part; Lord Hardwicke said, he would not allow it to stand good; although another person, being the best bidder, bought it for him at a public sale; for he knew the dangerous consequence. Nor was it enough for the trustee to say, you cannot prove any Vide 6 Ves. fraud; as it was in his own power to conceal it. But if the majority of the creditors agreed to allow it, he should not be afraid of making the precedent.

628.

Killick v. Flexney, 4 Bro. R. 161,

Whichcote v. Lawrence, 3 Ves. Jun. 740.

50. A trustee, who had acted improperly in other respects, bought a lease, which was part of the trust property, at an appraisement; and afterwards renewed it in his own name. Decreed, that he should be a trustee only, and account for what he pur

chased.

51. In a subsequent case it was held, there was no general rule that a trustee to sell should not himself be the purchaser; but he should not thereby acquire a profit.

52. An estate was conveyed to six persons, in trust to sell for the benefit of creditors. The estate was put up to auction, and purchased by one of the trustees, who afterwards sold it at a profit. Upon a bill filed by some of the creditors, praying that this purchase by the trustee might be for the benefit of the creditors; Lord Rosslyn said, it was a plain point of equity, and a principle of clear reasoning, that he who undertakes to act for another in any matter,

shall not, in the same matter, act for himself. Therefore a trustee to sell shall not gain any advantage by being himself the person to buy. He is not acting with 8 Ves. 345. that want of interest, that total absence of temptation, that duty imposed upon him, that he shall gain no profit. The consequence is beyond doubt, that in whatever shape that profit redounds to him, whether by management, which is the common way, or by superior good fortune, it is not fit that benefit should remain in him. It ought to be communicated to those whose interests, being put under his care, afforded him the means of gaining that advantage. The trustee was decreed to account for the profits, with costs.

53. In another case it was resolved, that where a trustee purchases the trust estate, however fair the transaction, it must be subject to an option in the cestui que trust, if he comes in a reasonable time, to have a resale.

54. A person devised his estate to two trustees, upon trust to sell. One of the trustees purchased part of the estate at auction. A bill was filed by the residuary legatees, praying that the sale might be set aside, and the premises resold. It appeared upon the evidence, that the sale was perfectly fair and open.

Sir R. P. Arden, M. R. said he would lay it down as a rule, that any trustee, purchasing the trust property, was liable to have the purchase set aside, if in any reasonable time the cestui que trust chose to say he was not satisfied. The trustee purchased, subject to that equity. And referred it to a Master to inquire whether it was for the benefit of the plaintiffs that the premises should be resold. If the Master should be of opinion that it would be for their benefit, then it was declared that they should be resold.

Campbell v. Walker, 5 Ves. 678.

6 Ves. 625.

Coles v.

Trecothick,

55. In another case, however, Lord Eldon allowed

9 Ves. 234. of a purchase, under a trust for payment of debts, by the trustee, as agent for his father, both creditors in partnership, chiefly because the cestui que trust had full information, and the sole management of the sale; making surveys, settling the particulars, fixing the prices, &c. His Lordship said, that a cestui que trust may deal with his trustee, so that the trustee may become the purchaser of the estate. But though permitted, it was a transaction of great delicacy, and which the Court would watch with the utmost diligence; so much, that it was very hazardous for a trustee to engage in such a transaction. A trustee might buy from the cestui que trust, provided there was a distinct and clear contract, ascertained to be

Morse v.
Royal,

12 Ves. 355.

Ante, § 54.

13 Ves. 601.

ch, after a jealous and scrupulous examination of all the circumstances; that the cestui que trust intended the trustee should buy; and there was no fraud, no concealment, no advantage taken by the trustee, of information acquired by him in the character of trustee.

56. In a subsequent case Lord Erskine confirmed a purchase made by a trustee from the cestui que trust, under particular circumstances, with the confirmation and acquiescence of the cestui que trust.

57. The case of Campbell v. Walker came before Lord Eldon, on an appeal from the Rolls, who affirmed the decree with costs; but said-" The principle has often been laid down, that a trustee for sale may be the purchaser in this sense; that he may contract with his cestui que trust; that with reference to the contract of purchase, they shall no longer stand in the relative situation of trustée and cestui que trust. And the trustee having, through the medium of that sort of bargain, evidently, distinctly, and

honestly proved that he had removed himself from the character of trustee, his purchase may be sustained."

act, must re

58. Where a trustee refuses to accept a trust, the Refusing to usual practice is to require him to release all his estate lease or and interest to the other trustees; or to execute a disclaim. deed of disclaimer. Where he releases, he is consi- Tit. 32. c. 26. dered as having, in the first instance, accepted the trust; and therefore, as to that part of such trust as Crewe v. consists of personal confidence, he cannot transfer it to the other trustees.

Dicken,

ante, § 35.

and others

59. It has been stated that the Court of Chancery Discharged, will not suffer a trust to fail, for want of a proper appointed. trustee therefore if a trustee refuses to accept of a ante, c. 1. trust, the Court will interpose, and either appoint a new trustee, or take upon itself the execution of the

trust.

§ 91.

Danvers,

60. A person devised all his lands to two trustees, Travel v. upon trust to sell and pay his debts. One of the Finch, 380. trustees desired to relinquish the trust, and the other was willing to accept it. The Court of Chancery directed that the trustee, who desired to relinquish, should release to the other.

Ettrick.

61. In a subsequent case the Court of Chancery Uvedale v. removed a trustee, though he was willing to act: his 2 Cha. Ca. co-trustees having refused to join with him in the 20. execution of the trust.

62. In a late case a decree was made that a woman Lake v. Delambert, who was a trustee, but who had married a foreigner, 4 Ves. 592. should be discharged from the trust, though she denied any intention of quitting the kingdom, and desired to continue in the trust. The Court said there was great inconvenience in a married woman's being a trustee.

63. In all modern deeds of trust, there is a proviso, that in case of any of the trustees dying, or being.