This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The duties of a trustee, if the trust is passive, are, as stated above, merely to transfer the legal title as directed by tied 'with usual or proper powers,' or the like; in which cases the construction consists in developing the limitations involved in such expressions in the form best suited to carry out the general intention of the trust." Leake, Prop, in Land, 245.
73. 1 Perry, Trusts, Sec. 360; Glen-orchy v. Bosville, 1 White & T. Lead. Cas. Eq. 47; Blackburn v. Stables, 2 Ves. & B. 369; Gushing v. Blake, 30. N. J. Eq. 689.
74. 1 Perry, Trusts, Sec. 357; erty. That is, any profit or benefit which he may make from the trust property he holds subject to the same trust.84 An illustration of this doctrine, not infrequently referred to, is presented by the case of a trustee of a renewable leasehold who takes a renewal in his own name, he being compelled to hold it subject to the same trust as the former lease.85 A trust so impressed upon property acquired by the trustee by reason of his control of the original trust res is not infrequently referred to as a constructive trust,86 but it would appear to be quite as satisfactory, if not more so, to regard it as an express trust to the same extent as the trust originally imposed on the res from which it is derived. For instance, if one who holds a leasehold under an express trust effects a renewal thereof in his own name, the new lease may well be regarded as merely an accretion to the original trust res, and for that reason subject to the same express trust.
The cestui que trust, and to defend it or allow the use of his name for its defense. The cestui que trust is entitled to the possession and to the absolute control.77 In the case of an active trust, the trustee has various powers in the conduct of the trust, either expressly given to him, or implied from the nature of the duties imposed on him. Thus, a trustee may generally make necessary repairs, and may make leases for reasonable periods. He may likewise be given, either in express language or by implication, the power to sell land, and frequently there are express directions to this effect, as there may be to invest trust money in land.78 If the trust involves active duties on the part of the trusee, the question of the right of the cestui que trust to the possession of the property is determined primarily by the intention of the creator of the trust, as shown by its terms and purposes, or the nature of the subject-matter; but the court may also consider, in this connection, the possibility of loss to others interested by giving possession to one of the beneficiaries.79 While the trustee is bound to account to the cestui que trust for the net proceeds of the property, he may deduct therefrom the expenses necessarily involved in the maintenance and protection of the trust property, and in the execution of the trust.80 of his own property, and he is liable to the cestui que trust for any losses caused by his failure to exercise such care.81
Wright v. Pearson, 1 Eden, 119; Merrill v. Preston, 135 Mass. 451; Mullany v. Mullany, 4 N. J. Eq. 16, 31 Am. Dec. 238, Cushing v. Blake, 30 N. J. Eq. 689.
75. See post, Sec.Sec. 14S-155.
76. 4 Kent. Comm. 218; 1 Perry, Trusts, Sec. 359; Austen v. Taylor, 1 Eden, 367; Nicoll v. Odgen, 29 111. 323. 81 Am. Dec. 311; Edmonson v. Dyson, 2 Kelly (Ala.) 307; Loving v. Hunter, 8 Yerg. (Tenn.) 4; Tallman v. Wood 26 Wend. (N. Y.) 89.
The trustee is bound to exercise the same care in the management of the trust property as a man of ordinary prudence may be expected to show in the care
77. 1 Perry, Trusts, Sec. 520, Campbell v. Prestons, 22 Grat. (Va.) 396; Wade v. Powell, 20 Ga. 645.
78. Lewin, Trusts, cc. 23, 24; 2 Perry, Trusts, cc. 16, 25. A trustee's powers of sale and of leasing are hereafter considered in connection with the general subject of "powers." See post, c. 10.
79. Lewin, Trusts, 868; 1 Perry,
Trusts, Sec. 329; Tidd v. Lister, 5 Madd. 429; Young v. Miles, 10 B. Mon. (Ky.) 287; Cooper v. Cooper, 36 N. J. Eq. 121; Wickham v. Berry, 55 Pa. St. 70; Cox v. Williams, 5 Jones, Eq. (N. C.) 150.
80. 1 Perry, Trusts, Sec.Sec. 910-913; Flint, Trusts, Sec.Sec. 338, 339; King v. Cushman, 41 111. 31, 89 Am. Dee. 366; Perkins' Appeal, 108 Pa. St. 314, 56 Am. Rep. 208.
In the case of joint trustees, one is not liable for the default or negligence of a co-trustee, unless by his negligence or connivance he contributed thereto.82