TO TENANT TO No. XL. NOTICE by a LESSOR to his LESSEE requiring him to put the PREMISES in REPAIR pursuant to a COVENANT contained in the LEASE. I HEREBY give you notice and require that in pursuance of the covenant in that behalf contained in the indenture of lease dated the - day of under which you hold the messuage and premises, No., &c. (describing the premises shortly), you do and execute, within six calendar months from the date hereof, the repairs in and upon the said messuage and premises, which are specified in the schedule to this notice. To C. D. (tenant). A. B. (landlord). THE SCHEDULE ABOVE REFERRED TO. OF ELECTION TO PURCHASE. No. XLI. NOTICE by LESSEE to LESSOR of Election to Purchase the I HEREBY give you notice that, pursuant to the power for this day of To A. B. (lessor). (a) Suprà, p. 68. C. D. (lessee) TRUSTEES (a). subject. Ir is proposed in this Dissertation to consider-I. The Division of nature of a trust and the different kinds of trusts. II. The transmission of powers and trusts. III. The powers and duties of trustees for sale. IV. Purchases by a trustee from himself or from his cestui que trust. V. The powers and duties of trustees as regards the investment of trust moneys, and the management of the trust property. VI. Disclaimer. VII. Appointments of new trustees, and the powers conferred by statute for this purpose. VIII. The provisions of the Trustee Relief Acts. IX. Miscellaneous points relating to Trustees. I. The nature of a trust and the different kinds of trusts. a trust. A trust may be defined as an obligation attached to Definition of the ownership of real or personal property or of some estate in, or power over, real or personal property, binding the person in whom such property, estate, or power is vested, to hold or exercise it for the benefit of some other person or persons, and which obligation is enforceable by means of the equitable jurisdiction of the Court. A trust may be a bare trust, or an active trust. A Bare trust. bare trust is where the instrument imposes on the trustee no duty beyond that implied by law from the bare relation of trustee and cestui que trust, e. g., where (a) Settlements form the next class of instruments of which precedents are given in this collection. As the objects of a settlement usually require the intervention of trustees, and as marriage is the ordinary occasion of a settlement, two introduc VOL. II. tory dissertations, the one on the M Active trust. How an active trust may become a bare trust. Election. Bare trustee, as the term is used in recent Acts. land is vested in A. in trust for B., the simple duty of A. being to convey the land to B., or according to his direction, whenever required so to do, and in the meantime to permit him to receive the rents and profits. An active trust is where the instrument imposes on the trustee some special duty beyond the simple obligation above referred to, e. g., a trust to sell, or to manage, or to receive the rents and apply them in a particular manner. A trust originally active may become a bare trust, either by reason of all the special duties having been performed, or by reason of the obligation to perform such duties having been put an end to by the act of all the persons beneficially interested in their performance, which act is usually called an election. Thus, if land is given to a trustee in trust to apply the rents during the minority of A. for his maintenance, and on his attaining twenty-one in trust for A. in fee simple, the trust becomes a bare trust so soon as A. attains twenty-one. Again, if land is vested in a trustee in trust to sell and divide the proceeds between a number of persons, all of whom, being sui juris, join in requesting him not to sell but to convey the land to them as real estate, the trust from the date of such request becomes a bare trust. The foregoing description of a bare trust naturally leads up to a definition of the term "bare trustee," as used in sect. 6 of the Vendor and Purchaser Act, 1874, and in sect. 48 of the Land Transfer Act, 1875 (which last-mentioned section is, however, repealed as regards any trustee dying after the 31st December, 1881 (b)). It is submitted that a bare trustee may for the purposes of these Acts be defined as "a trustee, who has no duties to perform beyond the simple obligation to convey the land to or according to the direction of his cestui que trust, whenever required so to do, and in the meantime to permit him to receive the rents and profits" (c). In accordance with the above definition, (b) Conveyancing Act, 1881, s. 30. Messrs. Dart and Barber Dart, V. & P. p. 517) conclude that the term will be held to mean a trustee to whose office no duties were originally attached, or who, it was held in a recent case that a married woman, being a devisee in trust for sale under a will, was, after a sale by the Court in an administration action, a bare trustee for the purchaser (d). constructive Trusts may be also divided into express trusts, and Express and implied, or constructive trusts, and this distinction is trusts. rendered important by sect. 25 of the Statute of Limitations, 3 & 4 Will. 4, c. 27, which excepts express trusts from the operation of the general enactment. An express trust has been defined to be a trust ex- What is an pressly declared by a deed, will, or other written express trust. instrument (e), and this definition seems correct and exhaustive as applied to land. But an express trust may be created of chattels or personal property without any writing, as by a deposit of them with a factor or agent for a particular purpose (ƒ). implied or An implied or constructive trust is one arising by Instances of implication or construction of law from certain circum- constructive stances; as, where land is purchased by and conveyed trusts. to A., but with money belonging to B., A. is treated as a trustee for B. unless there is such a relation between the parties as will lead to the presumption that a gift although such duties were originally attached to his office, would, on the requisition of his cestuis que trust, be compellable in equity to convey the estate to them, or by their direction, and has been requested by them so to do." This definition has been approved by V.-C. Hall, with the omission of the words in italics. Christie v. Ovington, L. R. 1 Ch. D. 279. It is submitted that Messrs. Dart and Barber's definition is not quite correct, either with or without the words in italics proposed to be omitted by the Vice-Chancellor. Suppose land to be vested in A. in fee simple in trust to sell and divide the proceeds between B. and C., it is clear that B. and C. being sui juris might require A. to convey the land to them, and it is apprehended that until such requisition is made he is not a bare trustee. On the other hand, if land is vested in A. in fee simple in trust for B. in fee simple, there can be no doubt among conveyancers. (d) Re Docwra, 29 C. D. 692. Petre v. Petre, 1 Drew. 393. Against whom was intended by B. to A. Again, if land is conveyed to a trustee, upon trusts which partly fail or do not exhaust the whole legal interests conveyed, there will, as a general rule, be an implied trust to the extent of the undisposed-of interest for the grantor, which trust is usually called a resulting trust. Again, after a contract for sale of land, the vendor is deemed a trustee for the purchaser subject to the payment of the purchase-money. So also it is a rule that a trustee cannot derive any personal advantage from the administration of the trust property, and consequently, if a trustee renews a lease in his own name, he will be deemed to hold the new lease for the benefit of his cestui que trust. A trust may be enforced against the person in whom it was originally reposed, and all persons deriving title to the property under him, whether by descent, representation, conveyance, or devise, other than purchasers for valuable consideration without notice of the trust. If a testator leaves property upon trust, and the trustee dies in his lifetime or disclaims, the legal estate appointed by will devolve on the heir-at-law, who will take it subject estate descends to the trust. On death or disclaimer of trustee will, legal to heir, subject to trust. Power when exercisable II. The transmission of powers and trusts. A power, properly so called, i. e., an authority by survivors. enabling the donees to revoke or alter interests existing in default of and until its exercise, must be strictly followed, and can only be exercised by the persons named or indicated for that purpose by the instrument creating it. Thus a power of this kind given to several persons by name and their heirs cannot be exercised by the survivors, and this is so even when the persons so named are trustees (g), except in cases coming within sect. 38 of the Conveyancing Act, 1881. But a power given to persons by some general description, as "my trustees," and not by their names, may (independently of the Act) be exercised by the survivors, or other the persons answering the description, so long as the (g) Townsend v. Wilson, 1 B. & Ald. 608; Hall v. Dewes, Jacob, 189. |