3. It is a maxim of equity that a trust shall not fail for want of a trustee. If the intention of the settler be clear, but he has omitted to name a trustee, or the trustee dies or becomes incapable of taking the estate, the trust attaches upon the person on whom the legal estate has devolved. (Wilm. 21, 22.) When powers given to trustees are not discretionary, but imperative, they are, as above mentioned, con sidered as trusts, and the court will protect the cestui que trust from the failure or neglect of the donee of the power. Where the discretion of the trustee was to be governed by a rule which the court can apply, it will do so ; but where there is no rule or measure by which the discretion of the trustee was to be governed, the court executes the power in .the manner which appears most reasonable, and in general proceeds upon the principle that equality is equity. (2 Ed. 332; Eq. Ca. Ab.' 194.) Where a discretion is given to the trustee in respect of the objects to whom an appointment is to be made, questions some times arise, when the power comes to be executed by the court, as to the objects to be included and the mode of distribution. When the power is in favour of " relations," the court, except under particular circumstances, appoints to relations within the statute of distribu tions, when it seems that the distribution will be made per capita, and not per stirpes (1 Bro. C. C. 33); and the words "next of kin" occurring in such a power are settled to mean " nearest of kin," to the exclusion of those who would take by representation under the statute. (2 31. & K. 780.) 4. The cestui que trust is entitled to have the administration of the trust-estate placed in proper hands. Thus the court will dismiss a trustee upon its being shown, upon application by bill to the Court of Chancery, that he has acted improperly, or has become incapable of executing his office (4 Ves. 592; 5 Yes. 707); and where the original number of trustees has been diminished, the cestui que trust may have the vacancies supplied. (5 Yes. 772.) The cestui que trust may also file a bill against his trustee, either for the purpose of compelling him to the execution of an act of duty, or to restrain him from doing any act not within the scope of the trust, or which would be prejudicial to the estate. (1 Bro. ' C. C.' 177; 6 Mad. 10.) 5. If a trustee aliens the trust-estate, the cestui que trust may follow the estate into the hands of any person who has acquired it, whether he had notice of the trust or not ; and even into the hands of a pur chaser for valuable consideration, if he had notice et the time of his purchase. The limit of time and extent within which the cestui que trust may institute proceedings for the recovery of his estate is fixed by the 3 & 4 Will. IV. c. 27.
In case of a breach of duty by the trustee, the cestui que trust has also a remedy against him personally by way of compensation. The
amount of the loss is considered as a simple contract debt against the estate of the trustee, and payment of it may be enforced in the same manner as for any other similar debt. The circumstance of the trustee having derived advantage or not from the breach of trust, makes no difference as to his liability. Where trustees are jointly implicated, it was formerly thought that the eestui vie trust might proceed against any of them singly; but the contrary has since been settled. (8 Sim. 219.) But the cestui gut trust will not be entitled to any remedy against his trustee, if he himself, being under no legal incapacity, has concurred in the breach of trust, or subsequently acquiesced in it, or d fortiori if he has executed a formal release to the trustee. (3 Swanst. 64.) Owing to the inadequacy of the law to meet the case of defalcations and frauds of trustees, bankers, and other persons entrusted with the care and management of the property of others, a statute was passed (20 & 21 Vict. c. 54) whereby offences of this kind were made mis demeanours punishable with penal servitude for three years, or im prisonment not exceeding two years, with or without hard labour.
VIII. There are two rules of equity with respect to trust-estates Viii. There are two rules of equity with respect to trust-estates which are of very general application. The first is, that what the settler has directed to be done shall be considered as done ; so that it shall not be in the power of trustees, by neglecting the performance of their duty, to affect in any way the interests of the cattail; que trust. Thus where money is directed to be laid out in land, or land is directed to be sold, equity will consider the conversion to have taken place, and deal with the property accordingly. This constructive conversion, however, subsists only until a cestui que trust, competent both from interest and personal capacity to elect, declares his intention as to the character in which he will take the property. [ELEcrtox.] The second rule, which Is almost a consequence of the first, is, that no act of the trustee shall alter the nature of the cestui que trust's estate. This rule, of course, is to be understood only of acts not authorised by the trust; and with respect to cestuis gut trust, who arc sui juris, is universal, but is subject to some exceptions with respect to trust-estatea belonging to lunatics. The court, though it will not in general alter the condition of the lunatic's property to the prejudice of his representatives, will not refuse to do so if it appear to be clearly for the benefit of the lunatic himself. (2 Ves. Jun. 72.) It was formerly thought that the court might exercise a similar discretion with respect to the estates of infants, but it is now settled otherwise. (19 Yes. 122.) (Sanders, On Uses and Trusts ; ' Lewin's Law of Trusts and Trustees.')