3. By the Revised Statutes, c. 58, § 13, every owner or keeper of any dog shall forfeit to any person injured by such dog double the amount of damage sustained. In trespass under this statute, the declaration alleged, that the defendants were the owners and keepers of the dog. Held, it must be proved that they were both owners and keepers. Buddington v. Shearer, xx. 477. 4. The injury having been done by two dogs together, belonging to different persons; held, each was liable only for the damage done by his own dog- not for the whole injury. Ibid. Trover. 1. A. made a mortgage of goods to B., which was recorded. A., remaining in possession, assigned the goods to C., and aided him in clandestinely removing them from the State. B. brings trover against C. and one D., who, by request of A., carried away some of the goods and delivered them to C. Held, if D. did not act in concert with C., or with intent to deprive B. of his property, the mere removal of a part of the goods, at the request of A., was not a conversion, because A., having lawful possession, might properly direct such removal, unless it was done with design to injure B. So also, if A. had such intent, and was in concert with C., yet, if D. did not know or assent to it, he was not guilty of a conversion. Strickland v. Barrett, xx. 415. 2. Trover by A. against B. and C. for a horse hired of A. Held, the defendants might prove, there being no evidence of an express hiring by B., that by a contract between them C. was to carry B. as a passenger. Adams v. Graves, xviii. 355. - 3. A. pledges to B., his creditor, goods of C., B. supposing them to belong to A. B. afterwards permits A. to sell and deliver them to D., upon D.'s promise to pay B. the price towards his debt. Held, B. was not liable to C., in trover. - Leonard v. Tidd, 3 Met. 6. 4. One from whom goods are obtained by a nominal sale, but through fraud and misrepresentation, may maintain trover against one who, with notice of the fraud, purchases them from the first vendee, without a demand. Stevens v. Austin, 1 Met. 557. — Thurston v. Blanchard, xxii. 18. 5. So, without restoring to the first vendee a note given by him for the price of the goods. - Ibid. 6. If the purchaser gave in payment his own negotiable note, which has not been negotiated, this action lies without a previous tender of the note, if it be brought into court, to be given up to the maker. Ibid. -- Trust and Trustee. (See Devise, D.) 1. Real and personal property was devised in trust, the rents, issues and income to be paid to the cestui, A. A part of the real estate being taken for a railroad, and the damages paid to the trustee; held, this sum was not income, &c., to be paid to the cestui, but a substituted capital, of which he was merely entitled to the interest. Gibson v. Cooke, 1 Met. 75. 2. Real estate was placed in the hands of a trustee, to be conveyed to the appointee of A., or, in failure of an appointment, to her heirs. She having died without making an appointment, held, as she had no legal title, the property could not be sold in the ordinary course of administration, under a license, for payment of her debts. Coverdale v. Aldrich, xix. 391. 3. An heir of A. having made a general assignment for his creditors, of all his lands, tenements and hereditaments, goods and chattels, &c., and all his right, title and interest in and to the same; held, his share in the real estate possessed by such trustee passed by the assignment. - Ibid. 4. The court may allow to a trustee commissions, in addition to his charges for specific services. In such case, the commissions are considered as a compensation for services not specially mentioned in the account. Rathbun v. Colton, xv. 471. 5. A trustee cannot have an allowance by way of commission, on assuming his office. But, as a compensation for his services, he may have a reasonable commission on the net income of the trust property, after collecting such income. Dixon v. Homer, 2 Met. 420. 6. The law will protect a trustee who acts according to his best judgment, though he make some trifling mistakes in doubtful matters. Root v. Yeomans, xv. 488. 7. Devise in trust, to apply the use and improvement of the property to the support of the testator's three children, for their lives; and, "so long as each of his children should be industrious and economical, those so continuing should have and be entitled to the use and improvement, each of one third of the real estate, and be entitled to all each should respectively raise by virtue of their improvement of the property." One of the cestuis brings a suit against the trustee for her portion of the real estate. The defendant offers to prove that, for years previous to the testator's death, and ever since, the plaintiff was weak-minded and incompetent to manage common affairs with ordinary prudence; but, wheth er from natural incapacity, or as the consequence of long-continued intemperance, did not appear. Held, the evidence was admissible. Ibid. 8. The trustee took possession of the land, incurred expenses necessary to prevent its running out, and allowed the cestui, annually, the interest of the sum at which it was appraised at the testator's death; and the increase of the products did not more than compensate the trustee for the above expenses. Held, the trustee was authorized thus to occupy, the rent allowed being reasonable; and that the cestui could not avail himself of the improvements, till he refunded the expenses. Ibid. 9. Bequest of property to a trustee, for the purpose of maintaining public lectures, to be delivered in Boston, for the promotion of the moral, intellectual and physical instruction and education of the inhabitants. The will contained no limitation of time, but provided for a perpetuation of the trust, and a perpetual succession of trustees, prescribed the mode of keeping and auditing the accounts of the trust, without reference to the provisions of the probate law, and appointed a perpetual board of visiters of the trust. Held, this bequest, being for a purpose of general charity, was not a gift in trust for any person or persons, within the meaning of the Revised Statutes, c. 69, § 1, and therefore no bond should be required from the trustee. Lowell, &c. xxii. 215. 10. By the same statute, § 1, 2, where the will so orders or requests, one appointed trustee for minors or others shall be exempted from giving a bond. It seems, to bring a case within this provision, no express order or request is necessary, provided the intention of the testator may be fairly inferred from the will. Ibid. 11. Land was conveyed upon divers trusts, with power to sell. The trustees, meaning to annul the trusts, reconveyed to the grantor, who thus took the legal estate, but still burdened with the trusts. He thereupon reconveyed to the trustees, to hold for the same uses and purposes and as fully in every respect, as under the original conveyance to them. Held, the power to sell of the trustees was revived. Salisbury v. Bigelow, xx. 174. 12. Devise to a trustee, his heirs and representatives, in trust, to invest and reinvest the land from time to time in stocks or other safe securities, and pay the income, with $200 annually of the principal, to the testator's daughter for life; afterwards to pay and transfer the whole of the trust fund to her children. Held, by necessary implication, the trustee had power to sell the real estate, discharged of the trust. - Purdie v. Whitney, xx. 25. 13. A testator, after appointing trustees to hold his estate during the lives of his children, directed that they should apply the rents and profits to the support of his children in certain proportions, and, if either or all of them should become necessitous, and the trustees should think it for their benefit to sell the whole or a part of the property, they might do so, and apply all or a part of the proceeds, in the same proportions, to the support of his children, their heirs or wives. He further directed, that, in case of the death of either of his sons, the trustees should apply the rents and profits of the estate, to the support of their wife or wives and children, during the life or lives of their wife or wives, in the same proportions. Held, the trustees were not authorized to sell any part of the estate, to relieve the necessities of the widow of one of the testator's sons; and, if only one of the testator's children should be in want, and a partial sale made for his relief, the whole of the proceeds might be applied for his benefit, to an extent not exceeding his portion of the estate, instead of being divided among all the children in the proportions specified by the will. Rathbun v. Colton, xv. 471. 14. In a suit in equity by the widow of one of the sons, against a trustee appointed by the probate court, according to the will, in place of the original trustees, it appeared, that money had been awarded and paid to the defendant, for damages occasioned by the laying out of a road over the estate. Held, the plaintiff could not claim a share of this sum, but it must follow the disposition of the residue of the estate. - Ibid. 15. The defendant had been of opinion, that it would be best for all parties, to sell the estate, and that this would be justified by the necessities of one of the cestui que trusts; but some of them petitioned for a removal of the trustee, or that he might be restrained from selling. Upon a hearing, no decree was made, but the defendant was admonished by the judge, that, if he persisted in attempting to sell, he would be removed, and the plan was accordingly abandoned. Held, the defendant was not bound to sell, and appeal from the judge's decree, unless requested to do so by some party interested. Ibid. 16. Held, the trustee should not be allowed for the cost of permanent improvements; but that the probable duration of the trust was to determine, whether repairs should be slight and temporary, or thorough and permanent. - Ibid. 17. Where the rent of a trust estate is increased by improvements made by the trustee, the cestui must elect either to give up the increased rent, or allow to the trustee the cost of such improvements. · Ibid. 18. A motion was made for an injunction upon a trustee, to restrain him from making any repairs, not essential to the immediate preservation of the buildings. Upon a hearing at chambers, the injunction was refused, upon the ground that the motion, with no tice to the defendant, would be enough to protect the plaintiffs, and that the trustee would not be allowed any expenditures, considered by the court, at a hearing, to be unauthorized. No formal decision was made upon the application. Held, the trustee was not bound to abstain from repairs, until the cause was decided, and might be allowed the expenses of subsequent repairs. — Ibid. - 19. A mother, in consideration of love and good will to her daughter, a married woman, conveyed lands to A., in "trust and for the sole use and benefit" of the daughter for life. Held, A. took the legal estate, in trust for the daughter's separate use; that this Court, therefore, had jurisdiction of a suit in equity, brought by the daughter against her husband and the trustee, to enforce the execution of such trust; that the husband, having received the rents and profits, was properly joined in the suit; that the wife, though she had separated from her husband, was entitled to such rents and profits from the time of separation, unless it should be clearly proved by the husband, that she had misconducted herself, and separated from him without cause or any manner of excuse, and without his consent; and that no demand on the husband was necessary, his answer showing that he denied her right; but otherwise a demand would have been necessary. - Ayer v. Ayer, xvi. 327. Trustee Process. A Who are liable to the trustee process; where it must be brought; and the effect of an attachment there upon. B. What are goods, effects, and credits, liable to attachment by the trustee process. C. Practice in the trustee process; interrogatories, issue, appeal, costs. D. Pleas and answers in the trustee process; upon what answers the respondent will be charged or discharged. E. Claims of third persons to the fund in the hands of a trustee, and their effect upon his liability. F. Judgment and execution in the trustee process; scire facias upon such judgment. |