The general rule with respect to the costa of trustees incurred in legal proceedings is, that they shall be allowed as between solicitor and client, if there be a fund under the control of the court out of which they may be paid. (1 Swanst. 201.) But this rule is subject to numerous exceptions, depending upon the circumstances of the case, and the propriety or otherwise of the conduct of the trustee, either in the course of the suit itself or in the matters out of which it arose. A trustee who disclaims by answer in chancery is entitled to costs as between party and party only. (2 M. & K. 278.) • VI. Of the relinquishment of office by trustees.
A trustee may be discharged from his office by the consent of the cestuis gut trust, but for this purpose the consent'of all must be obtained, however numerous they may be; and if any of the cestuis que trust be incompetent to consent, or be not yet in ease as in the case of a limita tion to unborn children, no complete discharge can be obtained.
• A trustee may be discharged in virtue of a special clause to that effect contained in the instrument under which he is trustee. A proviso to this effect is usually introduced into settlements combined with a power either to the cestui que trust, or to the co-trustees, to nominate a new trustee in the event of any of the number happening to die, or being desirous of being discharged from, or refusing or declining, or becoming incapable of acting in the trusts. The transfer of the trust is not complete until the new trustee has been nominated by the donee of the power, and a conveyance or assignment of the property has been executed. Powers of appointing new trustees aro strictly construed, and cannot be properly exercised except under the precise circumstances contemplated in the power, and it is always con sidered that the original number of trustees ought to be maintained. For this reason it would be improper to appoint one trustee to do the duty of two retiring trustees (2 3L & K. 682); and where there is a direction that upon the trustees being reduced to a certain number others should be nominated by the survivors, it has been determined that they might supply vacancies before the numbers were so far reduced, but that then they were compellable to doss. (5 Ves. 825.) Two recent acts, known as the " Trustee Relief Acts," have pro vided facilities for trustees wishing to discharge themselves from the responsibility of administering funds which may have come into their hands.
VII. Of the estate and rights of the culla que trust.
1. As to what it consists of In cases of the simple trust the whole rights of equitable ownership consist in the right of possession and the right of disposition.
The equitable owner line in general a right to the possession of the estate, but where there are several parties interested either contem poraneously or in succession, it is in the discretion of the court of equity to determine whether possession ought to remain with the trustee or be given up to the cestui que trust. The right of possession
of the tuba que trust Is recognised in a court of equity only, for at law the trustee is considered as the owner, and the cestui gut trust as tenant at will only. The trustee as tenant of the legal estate may recover in ejectment from his own cestui que trust, who has no defence to the action at law, and is only entitled to apply for an injunction in equity. (8 T. R. 122; 1 B. & B.445.) Upon the ground that the cestui que trust is the beneficial owner of the estate, he is entitled, either by the express Language or by the equitable construction of statutes, to various privileges connected with real estate. Thus the 2 Hen. V. et. 2, c. 3, and the subsequent statutes relating to persons entitled to serve as jurors, have been construed to apply to the cestuis que trust, and not to the trustee. By 7 & WilL 111. c. 25, a. 7, the right of voting as a freeholder of a ceenty was conferred on the eestui que trust, if in possession ; and by the 2 WilL IV. c. 45, s. 19, the cestui que trust of copyholds or of any lands whatever except freehold, of the required yearly value, is entitled to vote at elections of members of parliament whether in pos session or not The eestui que trust of chattels is also entitled to the use and pos session of them during the continuance of his interest ; and upon this ground they do not, upon the bankruptcy of the tenant for life, fall under the rules as to goods in the order and disposition of the bank rupt with the consent of the true owner. (19 Yes. 491.) A eestui que trust who is entitled to the whole equitable interest may, in virtue of the jus disponcndi, call upon the trustee for a conveyance of the estate. But he has no such right when the trustee holds upon trust for the benefit of others, or even when lie is entitled to the whole usufructuary interest, but the continuance of the estate in the trustee is necessary to answer some ulterior purpose relating to the trust, such as to preserve contingent remainders. (5 Mad. 429.) In cases of special trust, the right of the calla que trust is to have it specific, execution of the intention of the settler to the extent of that cestui quo trust', interest. If there be but one cestui que trust, and he oapable of consent, the specific execution of the trust may be departed from ; and so where there are several cestuis que trust, who all agree ; but no variation can be made so as to affect the interest of any cestui que trust without his consent.