Banks v. Wilkes.

leaving a will by which Mr. Banks was appointed her executor, and he became the administrator de bonis non with the will annexed, of James Campbell.

The bill prayed for an account and settlement of the trust fund originally held by Charles Wilkes, and insisted that his surviving executors were liable to make good the sum received by Horatio Wilkes.

The cause was argued in writing with much fulness on all the questions presented by the pleadings and proofs.

Richard H. Ogden, for the complainant.

Charles E. Butler, for the defendants.

THE ASSISTANT VICE-CHANCELLOR.-At the time of the death of Charles Wilkes, the bond and mortgage of S. Wilkeson, which ultimately became the cause of this controversy, although payable to him, were clearly identified and distinguished as being the property of Margaret Campbell; and after his death they were recognized and treated as hers by his representatives.

The securities came to the hands of his executors, with the testator's effects upon his death.

It is agreed on all hands, that Mr. Wilkes held the bond and mortgage, in trust for Miss Campbell. And it appears to me to be quite immaterial, whether this trust was express or implied, direct or constructive.

In Trecothick v. Austin, (4 Mason's R. 16, 29,) the question was whether a statute of limitations, barring suits against executors in their capacity as such, applied to a transaction similar to this in principle; and it was decided that it did not. Judge Story held, that "if at the time of the testator's death, there is any specific personal property in his hands, belonging to others, which he holds in trust, or otherwise, and it can be clearly traced and distinguished from the testator's own; such property, whether it be goods, securities, stock, or other things, is not assets; but is to be held by the executor, as the testator himself held it." And, "coming into the executor's hands, as the general represen

Banks v. Wilkes.

tative of the personalty, he is by law clothed with the same character of trustee of the property, and succeeds to its obligation."

It is insisted on behalf of the defendants, that by the statute relative to uses and trusts, the trust in question upon the death of Mr. Wilkes, devolved upon the court of chancery.

I think the statute is not applicable. It relates exclusively to real property, and its provisions are not extended to personalty, except in limitations of future or contingent interests in such property.

The interest of Miss Campbell in this trust was a present and vested interest, and does not fall within that class of limitations.

If the other construction were correct, and the trust devolved upon the court of chancery; it would not warrant the executors in delivering the fund to any person other than the beneficiary, or a new trustee appointed by the court.

The defendants state in their answer, that shortly after Mr. Wilkes's death, the securities belonging to Miss Campbell were taken possession of by Horatio Wilkes as her trustee in fact, or agent, and were from thenceforth kept and retained by him exclusively in that capacity.

The complainant, denying that Horatio W. was the sole trustee or agent of Miss C. at any time, argues that the act of placing these securities in his hands, or suffering him to take the possession of the same, was a breach of trust on the part of his co-executors, which subjects them to all the consequences flowing from his control over the securities.

It is true Horatio Wilkes, in conformity with his father's request, and from its fitness in reference to the situation and pursuits of the other executors, became the acting executor and manager of the estate. All assented and agreed to this arrangement; but I do not understand from the testimony that his co-executors divested themselves of their legal control over the property, nor but that they could assume its management if they thought proper. I have no doubt but that Miss Campbell's securities, in the first instance, passed into the hands of Horatio Wilkes, in consequence of this family arrangement, with the mass of the personal estate of Charles Wilkes,

Banks v. Wilkes.

But I do not discover any breach of trust in this circumstance. There is no proof that the defendants agreed to intrust the control and management of Miss C.'s securities to Horatio, or that they interfered in any manner in regard to them. The defendants were simply, passive; suffering them to pass into his custody.

After he had thus received them, the executors stood in this position. They were the trustees of the bonds and mortgages of Miss C., and one of their number, Horatio Wilkes, had the same in his keeping. The four trustees could not all have the manual possession of the securities. Nor could any joint possession of them prevent one of their number from receiving payment from the mortgagors, without the concurrence or knowledge of the others, if he chose so to do.

The circumstance of the individual custody of the trust fund, by one of the trustees, is not therefore to be deemed a breach of trust in the others. (Sutherland v. Brush, 7 J. C. R. 17, 22.)

If the rule of law were otherwise, it would not apply to this case, because Miss Campbell was informed, when she received the first account current from Horatio, a few months after his father's death, that he alone had the bonds and mortgages in his possession, and she did not object to that disposition of them or intimate any dissent. Irrespective of the question as to his becoming the sole trustee, her silence after this information, must be deemed an acquiescence in Horatio's being the custodian of the securities as one of her four trustees.

The loss in question occurred before there was any known reason or cause for the defendants to interfere with Horatio's possession of the bonds and mortgages. He received the $6000, without the concurrence or knowledge of either of them, and his sole acquittance, it is conceded, was sufficient to discharge the debtor.

The law appears to be well settled that the defendants are not liable for the money which he thus received. (2 Story's Eq. s. 1281, to 1284; Monell v. Monell, 5 J. C. R. 296, 297; Sutherland v. Brush, 7 ibid. 22; and Manahan v. Gibbons, 19 Johns.

Rogers v. Ludlow.

438, 440, per Kent, Chancellor; Leigh v. Barry, 3 Atk. 584; Lewin on Trusts and Trustees, 269.)

There was no act or agreement in this case, within the meaning of the authorities cited on the part of the complainants, by which this money came into the hands of Horatio Wilkes.

Entertaining this view of the subject, it is unnecessary for me to examine the facts relied upon by the defendants, to show that Miss Campbell recognized Horatio Wilkes as her sole trustee, and acquiesced in his acting in that capacity.

The bill must be dismissed without costs.

P. and H. Y. ROGERS v. LUDLOW and others.

A conveyance of real estate, in trust to lease the same and to pay and apply the income unto such persons, for such uses and purposes, and in such parts and manner, as E., a married woman, should in writing appoint; and for want of such direction, then to her proper hands; or otherwise to permit her to receive the income for her sole and separate use and benefit; is valid as an express trust. Such a trust interest in real estate, cannot be subjected to the payment of liabilities, in the nature of debts, created by the wife.

If the conveyance were deemed to create a valid power in trust, instead of an express trust, such liabilities would not be enforced against the wife's interest, under the provision of the revised statutes for compelling the execution of powers in favor of the creditors of the beneficiary.

A married woman cannot incur a debt; and where she has a separate estate, her obligation incurred on the faith of such estate or for its benefit, is enforced, (when capable of being enforced,) as a charge, and never as a personal liability. May 9, 10, and October, 4; October 23, 1845.

THE bill was filed against Mrs. Elizabeth Ludlow and Edward H. Ludlow and Elizabeth his wife, to obtain payment, out of the separate estate of the latter, of an account for merchandize, charged to have been sold and delivered to her by the complainants, on the faith and credit of such estate.

It appeared that Mrs. Edward H. Ludlow as the daughter and one of the heirs of Elizabeth Stevens Livingston, inherited an undivided share in real estate in New York, New Jersey, and else

Rogers v. Ludlow.

where; in which her father Edward P. Livingston had an estate as tenant by the curtesy, until his death on the 3d of November, 1843. On the 8th day of February, 1837, a post-nuptial settlement was executed by E. H. Ludlow, by which he granted bargained, sold, released, conveyed and confirmed, unto his mother Mrs. Elizabeth Ludlow, in fee, all his estate, right, title, interest, claim and demand, in right of his wife, or otherwise, of in and to all the lands and tenements of which Mrs. Livingston died seised. The conveyance was upon certain trusts, which were expressed as follows:

"To and For the Uses Trusts and Purposes following that is to say, Upon Trust that the said party of the second part her executors administrators and assigns do and shall from time to time lease let and improve the said above referred to premises or any part thereof, to the best advantage and for the most profit and income the same can reasonably produce, according to the best of her or their judgment or discretion, or according to and in pursuance of such directions as the said Elizabeth Ludlow wife of the said Edward H., shall at any time notwithstanding her coverture, by and in writing under her hand direct or appoint, and do and shall from time to time hereafter pay, apply and dispose of the rents issues and profits of the premises aforesaid, as the same shall from to time arise and be received, unto such person or persons, and for such uses and purposes, and in such parts and proportions, manner and form, as she the said Elizabeth wife of the said Edward H. Ludlow, (the party heretofore of the first part) from time to time, notwithstanding her coverture, shall by any note or writing under her hand, direct or appoint, and for want of such direction or appointment, then to the proper hands of her the said Elizabeth, wife of the said Edward H., or otherwise shall permit her to receive the same to and for her own sole and separate use and benefit, and her receipt or receipts alone, notwithstanding her coverture, shall be a sufficient discharge from time to time, to the person or persons so paying the same, for so much thereof for which such receipts shall be given, to the intent that the same rents issues and profits, or any part thereof, may not be at the disposal, or subject or liable to the control, debts, forfeitures, or engagements of the said Edward H. Ludlow, but only VOL. III. 14