strict, that if the trustee has a partner, and employs such partner, no charge can be made by the firm; but if the trustee is excluded from all participation in the compensation, the partner of the trustee may be paid like any other person for similar services. In one case where several trustees were made defendants, one of them, being a solicitor, conducted the defence, and was allowed his full costs, it not appearing that the costs were increased by such conduct. This case is put upon the ground that the services were rendered under the eye of the court, and there could be no danger of collusion; but the case is not approved in England, and has not been followed. In the United States, a trustee has been refused compensation as solicitor, for professional services rendered by himself for himself as trustee, on the ground that no man can make a contract with himself.5 § 433. Under no circumstances can a trustee claim or set up a claim to the trust property adverse to the cestui que trust. 1 Collin v. Carey, 2 Beav. 128; Lincoln v. Winsor, 9 Hare, 158; Christophers v. White, 10 Beav. 523; Lyon v. Baker, 5 De G. & Sm. 622; Manson v. Baillie, 2 Macq. (H. L.) 80. [See contra, Turnbull v. Pomeroy, 140 Mass. 117; Thayer v. Badger, 171 Mass. 279.] 2 Clack v. Carlon, 7 Jur. (N. s.) 441; Burge v. Burton, 2 Hare, 373. 3 Cradock v. Piper, 1 McN. & G. 664; 1 Hall & T. 617; overruling Bainbrigge v. Blair, 8 Beav. 588. Lyon v. Baker, 5 De G. & Sm. 622. Mayer v. Galluchet, 6 Rich. Eq. 2; Jenkins v. Fickling, 4 Des. 470; Edmonds v. Crenshaw, Harp. 232. [See note a, supra.] Att. Gen. v. Monro, 2 De G. & Sm. 163; Stone v. Godfrey, 5 De G., M. & G. 76; Frith v. Curtland, 2 Hem. & M. 417; Pomfret v. Winsor, 2 Ves. 476; Kennedy v. Daley, 1 Sch. & Lef. 381; Ex parte Andrews, 2 Rose, 412; Conry v. Caulfield, 2 B. & B. 272; Newsome v. Flowers, 30 Beav. 461; Shields v. Atkins, 3 Atk. 560; Langley v. Fisher, 9 Beav. 90; Reece v. Frye, tion for necessary services which lay outside his duty as surviving partner. Vanduzer v. McMillan, 37 Ga. 299; Starr v. Case, 59 Iowa, 491, 503; Thayer v. Badger, 171 Mass. 279. In some States it is expressly provided by statute that trustees shall receive compensation for such services in addition to that allowed for their ordinary services. Infra, §§ 917-919 and notes. Nor can he deny his title.' If a trustee desires to set up a title to the trust property in himself, he should refuse to accept the trust. But if a claim is made upon him by a third person, adverse to the cestui que trust, he may decline to deliver over the property to his cestui que trust until the title is determined, or he is indemnified or secured against the consequences,2 or he may pay the fund into court,3 and if he neglects to do so, and thus makes a suit necessary, he will recover only such costs as he would have been entitled to if he had paid the money into court. A trustee must assume the validity of the trust under which he acts, until it is actually impeached, although he may have some suspicion that there may have been fraud or collusion in the appointment and settlement.5 (a) So, if a trustee obtains a knowledge of facts that would defeat the title of his cestui que trust, and give the property over to another, he is not justified in morals in communicating such facts to such other person. His duty is to manage the property for his cestui que trust, and not to keep his conscience, or betray his title or interests; and he can make no admissions prejudicial to the rights of his cestui que trust, nor can he use his influence to defeat the purposes of the trust as declared by the creator of it.8 (b) 6 1 De G. & Sm. 279; Benjamin v. Gill, 45 Ga. 110. [Ownes v. Ownes, 23 N. J. Eq. 60. As to purchase of incumbrance or adverse interest see supra, § 195, note.] 1 Von Hurter v. Spergeman, 2 Green, Ch. 185. [Associate Alumni v. General Theol. Seminary, 49 N. Y. S. 745.] 2 Neale v. Davies, 5, De G., M. & G. 258. Gunnell v. Whitear, L. R. 10 Eq. 664. ♦ Ibid.; Weller v. Fitzhugh, 22 L. T. (n. s.) 567. Beddoes v. Pugh, 26 Beav. 407; Reid v. Mullins, 48 Mo. 344. • Lewin, 234. Thomas v. Bowman, 30 Ill. 34; 29 III. 426. (a) A party to a contract, who seeks to be relieved therefrom, and relies upon its illegality or want of consideration, may be estopped from setting up such a defence, and a trustee who has accepted and entered upon the administration of the trust, cannot allege the invalidity of his appointment as a reason for not accounting for the trust property. Harbin v. Bell, 54 Ala. 389; Saunders v. Richard, 35 Fla. 28, 42. (b) Where a creditor of the cestui is seeking to reach the latter's inter § 434. In England, a trustee, being in possession of real estate in trust, may profit from his trust if the cestui que trust dies without heirs; for, as the trustee is tenant in possession, there is no such failure of a tenant as to cause an escheat; and the trustee thenceforth holds the lands for his own use, there being no cestui que trust to call him to an account. This is a benefit to the trustee; but it arises rather from an absence of right in others, than from an affirmative right in himself. But if he is not in possession, or if he has need of the assistance of a court of equity to enforce his rights, the court will not act; 2 though it is said, that having the legal title, which a court of law must recognize, he can obtain all the rights which a court of law must give. But if the cestui que trust devise the estate to another upon trusts that fail, the trustee must pass over the estate to the devisee, for the reason that the trustee can have no advantage from trusts that so fail, and he has no equity against the devisee to keep the estate.1 § 435. Upon this rule of law in England, several questions were started in the case of Burgess v. Wheate,5 which are rather curious than practical in this country; as, for instance, if a purchaser should pay the money in full for land, and die without heirs, before he obtained a conveyance, could the vendor keep both land and purchase-money? Again, if a mortgagor in 6 1 Burgess v. Wheate, 1 Eden, 177, 186, 216, 256; Taylor v. Haygarth, 14 Sim. 8; Daval v. New River Co., 3 De G. & Sm. 394; Cox v. Parker, 22 Beav. 168; Barrow v. Wadkin, 24 Beav. 9; Att. Gen. v. Sands, Hard. 496. 2 Burgess v. Wheate, 1 Eden, 212; Onslow v. Wallis, 1 McN. & G. 506; Williams v. Lonsdale, 3 Ves. Jr. 752. * King v. Coggan, 6 East, 431; 2 Smith, 417; King v. Wilson, 10 B. & C. 80. 33. Onslow v. Wallis, 1 McN. & G. 506; Jones v. Goodchild, 3 P. Wms. 5 1 Eden, 177. • Ibid. 212. est in the trust property, the trustee cannot safely waive any of the neces sary legal steps. Kutz v. Nolan, 224 Pa. St. 262. fee should die without heirs, could a mortgagee in fee keep the whole estate, for the reason that there was no person having a right to redeem? Of course the equity of redemption would be assets for the payment of the debts of the mortgagor.2 But if there were no debts, could the mortgagee keep a large estate for a small debt?3 Another question was raised, whether a trust in such cases might not result to the grantor. No answers have been given to these questions by decided cases, and as they were put more than a century ago, it is not probable that a case will arise requiring their judicial determination. § 436. In the United States, if a cestui que trust should die without heirs, the trustee could not hold for his own beneficial use; but he would hold for the State as ultima hores where all other heirs fail.5 § 437. Where a cestui que trust of chattel dies without heirs, the trustee can take no benefit; for the beneficial use in such chattel will go as bona vavantia to the crown or State. So, if the cestui que trust makes a will and appoints an executor, but makes no further disposition of his personalty, the executor will take for the State; for the executor can take no beneficial interest unless the will expressly gives it to him. 6 § 437 a. Payment of a trust debt by crediting the trustee's individual account is not good. A trustee may in good faith 1 Ibid. 210. Beale v. Symonds, 16 Beav. 406; Downe v. Morris, 3 Hare, 394. 1 Eden, 236, 256. • 1 Eden, 185. ' McCaw v. Galbraith, 7 Rich. L. 75; Matthews v. Ward, 10 G. & J. 443; Darrah v. McNair, 1 Ashm. 236; Ringgold v. Malott, 1 Harr. & John. 299; 4 Kent, 425; 1 Cruise, Dig. 484; Crane v. Reeder, 21 Md. 25. Middleton v. Spicer, 1 Bro. Ch. 201; Taylor v. Haygarth, 14 Sim. 8; Russell v. Clowes, 2 Col. C. C. 648; Powell v. Merritt, 1 Sm. & Gif. 381; Cradock v. Owen, 2 Sm. & Gif. 241; Read v. Steadham, 26 Beav. 495, Cane v. Roberts, 8 Sim. 214. 7 See §§ 815 a, 815 b. Maynard v. Cleveland, 76 Ga. 52. compromise a doubtful debt due the trust estate, and a fraud committed by him upon others is admissible to show his zeal for the interests of the estate. But a compromise of a debt due from the trust by which an advantage is gained, as where a legatee accepted $1100 for a $3000 legacy, inures to the benefit of the trust estate, and the trustee cannot transfer the whole gain to one of the cestuis. A trustee to sue for and recover certain property may make a fair and judicious compromise by which the title is secured to the cestui.3 Church trustees cannot, by their acts, create any lien on the trust property unless they have express authority for so doing. A trustee can be held personally for materials ordered by him for the trust estate, and on contracts made by him in its behalf, unless there be a special agreement to look only to the trust, and this even though the trustees acted under order of the court, this being merely a security to the trustee that he shall be indemnified out of the trust funds. (a) But the mere fact of want of authority in a 5 1 Id. 68 et seq. Mitchell v. Colburn, 61 Md. 244. Caldwell v. Brown, 66 Md. 293. ♦ Trustees First M. E. Church v. Atlanta, 76 Ga. 181. Gill v. Carmine, 55 Md. 339; Hackman v. MaGuire, 20 Mo. App. 286; People v. Abbott, 107 N. Y. 225; Kedian v. Hoyt, 33 Hun, 145. [ Dantzler v. McInnis, 151 Ala. 293; Johnson v. Leman, 131 Ill. 609; Hussey v. Arnold, 185 Mass. 202; McGovern v. Bennett, 146 Mich. 558; Truesdale v. Philadelphia Tr. Co., 63 Minn. 49; Koken Iron Works v. Kinealy, 86 Mo. App. 199; Blewitt v. Olin, 14 Daly, 351; Mitchell v. Whitlock, 121 N. C. 166; Fehlinger v. Wood, 134 Pa. St. 517; Neal v. Bleckley, 51 S. C. 506; McIntyre v. Williamson, 72 Vt. 183; Taylor v. Davis, 110 U. S. 330, 334; Brazier v. Camp, 63 L. J. Q. B. 257.] (a) A trustee is likewise personally liable to third persons for his torts either of misfeasance or of nonfeasance in failing to keep the trust property in repair, irrespective of his right to reimbursement. Baker v. Tibbetts, 162 Mass. 468; Shepard v. Creamer, 160 Mass. 496; Odd Fellows Hall Ass'n v. McAllister, 153 Mass. 292; O'Malley v. Gerth, 67 N. J. Law, 610; Gillick v. Jackson, 83 N. Y. S. 29; Norling v. Allee, 13 N. Y. S. 791. See Brown v. Wittner, 59 N. Y. S. 385, 43 App. Div. 135. In re Raybould, [1900] 1 Ch. 199; Prinz v. Lucas, 210 Pa. St. 620. And also for the torts of his agents. Blewitt v. Olin, 14 Daly (N. Y.) 351. As |