The trustee is in law generally regarded as the owner of the property, whether the same be real or personal ; Hill, Trust. 229. Yet this rule is subject to material qualifi cations when taken in connection with the doctrines of powers and uses, and the legis lation of the several states ; Bank of United States v. Beverly, 1 How. (U. S.) 134, 11 L. Ed. 75 ; 4 Kent 321.
The quality and continuance of the estate of a trustee will be determined by the pur pose and exigency of the trust, rather than by the phraseology employed in the descrip tion of the estate conveyed ; and, therefore, if the language be that the estate goes to the trustee and his heirs, it may be limited to a shorter period, if thereby the purposes of the creation of the trust are satisfied ; 8 Hare 156; Nicoll v. Walworth, 4 Den. (N. Y.) 385.
Where there are several trustees, they are considered to hold as joint-tenants, and on the death of any one the property re mains vested in the survivor or survivors ; and on the death of the last, the property, if personal (at common law), went to the hit or personal representative of the last deceased trustee. But the rule as to trust property going to heirs and executors is changed in most of the states, so that in theory the court of chancery assumes the control, and it appoints a new trustee on the decease of former trustees. If power be com mitted to two or more trustees, it is regarded as coupled with an interest, and will still ex ist in the surviving trustee on the death of any or all of his co-trustees. 2 Prob. Rep. Ann. 23. If the power is confided to several trustees, nonvtnatim, it imports a personal discretion or confidence of a personal nature, and on the death of one of these donees the power dies with him and cannot be exercised by the survivors ; id.; 13 Sim. 91; 4 Kent 311.
See TRUST.
Each trustee has equal interest in and control over the trust estate ; and hence, as a general rule, they cannot (as executors may) act or bind the trust separately, but must act jointly; 4 Ves. Ch. 97; Ridgeley v. Johnson, 11 Barb. (N. Y.) 527. All the trus tees of a single trust must execute the duties of the trust jointly ; People v. O'Loughlin, 79 Misc. 650, 140 N. Y. Supp. 488. One of three trustees cannot institute a suit without the knowledge and consent of the others ; McGeorge v. Imp. Co., 88 Fed. 599 ; the joint act of several executors is necessary in any transaction under the will; Hosch Lumber Co. v. Weeks, 123 Ga. 336, 51 S. E. 439 ;
though more power is usually given to a single executor than to a single trustee.
A co-trustee is not responsible for the act of his co-trustee where the latter undertook the entire management of the trust ; Meldon v. Devlin, 20 Misc. 56, 45 N. Y. Supp. 333; nor does the mere acceptance of commissions render him liable; In re Westerfield, 32 App. Div. 324, 53 N. Y. Stipp. 25., Joint trustees are not responsible for mon ey received by their co-trustees if the receipt be given for the mere purposes of form. But if receipts be given under circumstances pur porting that the money, though not received by both, was under the control of both, such a receipt shall charge, and the consent that the other shall misapply the money, particu larly where he has it in his power to secure it, renders him responsible; Pim v. Downing. 11 S. & R. (Pa.) 71. In the case of a public trust, the acts of a majority are binding ; Bisph. Eq. § 147.
A trustee is, generally, not responsible for the conduct of his co-trustee ; see 2 Lead. ts. Eq. 858 ; where several trustees join in a receipt, prima facie, all will be considered to have received the money, but one of them may show that he did not in fact receive the money, but joined in the receipt for conform ity ; Bisph. Eq. § 146. A trustee who stands by and sees a 'fraud on the trust committed by his co-trustee will be held responsible for it ; Ducommun's Appeal, 17 Pa. 268. But trustees are not liable for the conversion of money collected by their co-trustee, in course of administration of the trust, without their knowledge or consent ; Purdy v. Lynch, 72 Hun, 272, 25 N. Y. Supp. 585.
A trustee who joins in a receipt for con formity is not liable for the misapplication of the money by his co-trustee who receives it ; Stowe v. Bowen, 99 Mass. 194; unless guilty of culpable negligence ; Irwin's Appeal, 35 Pa. 294 (an executor) ; but he must show that he did not receive it, as his receipt is prima facie evidence against him in equity and conclusive at law. The great preponder ance of authority is, that a sale under a pow er is not different from the execution of a re ceipt for the trust moneys ; but a trustee who joined in receiving the money continues re sponsible for it until it is invested. Execu tors are generally held liable only for their own acts, and not for moneys which do not pass into their hands ; Perry, Trusts, pp. 416, 420.