The trustee may convey the legal title to a third person, even though this involves a breach of trust on his part, since he is, in the view, at least, of courts of law, the owner of the property.91 The rights of the cestui que trust are, however, as a general rule, entirely unaffected by any changes in the legal title, whether by descent, devise, or conveyance, and persons claiming under the trustee, except those to whom he conveys the land in the course of the execution of the trust, will take its subject to the trust. An exception to this rule exists, however, in favor of one who pays a valuable consideration for the property without notice of the trust, and he acquires the property discharged therefrom,92 as does one who, with v. Carlisle, 51 Miss. 785; Brooks v. Davis, 82 N. J. Eq. 118, 88 Atl. 178; Cheyney v. Geary, 194 Pa. 427, 45 Atl. 369; Henson v. Wright, 88 Term. 501, 12 S. W. 1035; Managan v. Shea, 158 Wis. 619, 149 N. W. 378.

88. The validity of such stipulations is elsewhere considered. Post Sec. 592(f).

89. 1 Stimson's Am. St. Law, Sec. 1720; Chaplin, Express Trusts, c. 9

89a. 1 Jarman, Wills, 48, 50.

90. Lewin, Trusts, 1061; Pier-son v. Armstrong, 1 Iowa. 282, 63 Am. Dec. 440; Avery v. Dufrees, 9

Ohio, 145; Nicholson v. Halsey, 1 Johns. Ch. (N. Y.) 417.

91. Lewin, Trusts (12th Ed.) 251; 1 Perry, Trusts, Sec. 321; Bank of United States v. Benning, 4 Cranch, C. C. 81, Fed. Cas. No. 908; Robinson v. Pierce. 118 Ala. 273, 45 L. R. A. 66, 72 Am. St. Rep. 160. 24 So. 984; Prather v. McDowell, 8 Bush (Ky.) 46; Dawson v. Hayden, 67 111. 52; Taft v. Decker, 182 Mass. 106, 65 N. E. 507; Lindley v. O'Reilly. 50 N. J. L 636, 1 L. R. A. 79, 7 Am. St. Rep. 802, 15 Atl. 379.

92. 1 Perry, Trusts, Sec.Sec. 217-223; notice of the trust, purchases the property from an innocent purchaser for value, unless he be the trustee who committed the breach of trust.93: In order that one be able to claim the property free from the trust as a purchaser for value, without notice, he must have paid the consideration before receiving notice;94 hut even if he did pay the consideration before notice, he will, it seems, take subject to the trust if he received notice thereof before the execution of the conveyance, since he might have refused the conveyance and demanded a return Of the money.95

In the case of a sale and transfer of the property by the trustee in the course of the execution of the trust, a rule formerly prevailed that the purchaser was generally bound to see that the purchase money paid by him was properly applied by the trustee. The rule was never regarded with favor in this country, and, even when not expressly abolished by statute, may be regarded at the present day as practically nonexistent; the purchaser being so liable only when the circumstances were such as affect him with notice of a possible misapplication by the trustee.95a title, whether a former trustee, or his heir, or the heir of the creator of the trust, to convey the legal title to the trustee so appointed.1 Not infrequently the instrument creating the trust provides that a vacancy in the office of trustee shall be filled by appointment by some individual or individuals, as when the surviving trustee is empowered to fill a vacancy caused by death.

- Transfer by death. Upon the death of a sole trustee intestate, the legal title will, in the absence of a statute providing otherwise, pass by descent to his heir or heirs,96 usually the common law heir, the statutes abolishing primogeniture being regarded as ap plicablo only when the decedent had a beneficial in terest.97 And, in the absence of statute to the contrary, the trustee may dispose of the legal estate by devise.98 In some states the statute provides that, on the death of a trustee, the ownership of the property hall vest in the court, which shall appoint new trustees to carry on the trust.99

1 Ames, Cas. Trusts, 286; Pomeroy Eq. Jur. Sec.Sec. 730, 1048; Lewin, Trust, 1102.

93. 1 Ames, Cas. Trusts, 286, 287; 1 Perry, Trusts, Sec. 222. See post Sec. 575.

94. 1 Perry, Trusts. Sec. 221; 1 Ames, Cas. Trusts, 287; Tourville v. Naish, 3 P. Wms. 307; Wormley v. Wormley, 8 Wheat. (U. S.) 449; Keys v. Test, 33 111. 316; Blanch-ard v. Tyler, 12 Mich. 339; Patten v. Moore, 32 N. H. 382.

95. 1 Perry, Trusts, Sec. 221; 1 Ames, Cas. Trusts, 288; Wigg v. Wigg, 1 Atk. 382. See post Sec. 574(d).

95a. 2 Perry, Trusts, Sec.Sec. 790, note, 791-808; 1 Ames, Cas. Trusts, 269; Elliot v. Merryman, 1 White & T. Lead. Cas. Eq. 109, notes; Claiborne v. Holland, 88 Va. 1046, 14 S. E. 915. For statutory provisions relieving the purchaser of liability, see 1 Stimson's Am. St. Law, Sec. 1723.

Upon the death of one of two or more joint trustees, the legal estate will, in most jurisdictions, vest in the survivor or survivors, on the theory that the trustees are to be regarded as joint tenants rather than tenants in common.99a

Sec. US. Appointment and substitution of trustees. It is a well-settled rule that equity will not permit a trust to fail for want of a trustee, and consequently, if a trustee is not named in the declaration of trust, or the person named dies, or the office in any other way becomes vacant, the court will appoint a person to act as trustee, and, if necessary, require the holder of the legal

96. Lawrence v. Lawrence, 181 111. 248, 54 N. E. 918; Gill's Heirs v. Logan's Heirs, 11 B. Mon. (Ky.) 231; Richardson v. Woodbury, 43 Me. 106; Harlowe v. Cowdrey, 109 Mass. 183; Ewing v. Shannahan, 113 Mo. 188; Duffy v. Calvert, 6 Gill (Md.) 487; Wills v. Cooper, 25 N. J. L, 137; Watkins v. Specht, 7 Coldw. 585.

97. Boston,etc., Co. v. Condit, 19 N. J. Eq. 394; Jenks v. Backhouse, 1 Binn. (Pa.) 91; Reynolds v. Reynolds, 61 S. C. 243, 39 S. E. 391.

98. Taylor v. Benham, 5 How. (U. S.) 233, 270, 12 L. Ed. 130; Richardson v. Woodbury, 43 Me. 206; Gray v. Lynch, 8 Gill (Md.); Jackson v. Delancy, 13 Johns. (N.

Y.) 537, 7 Am. Dec. 403; Heath v. Knapp, 4 Pa. 228; Hughes v. Caldwell. 11 Leigh (Va.) 342. 36 Am. Dec. 385. As to when the legal estate will pass by general words of devise in the trustee's will, see 1 Ames, Cas. Trusts, 316.

99. 1 Perry, Trusts, Sec. 341.

99a. 1 Perry, Trusts, Sec. 343; 1 Ames, Cas. Trusts, 346; Peter v. Beverly, 10 Pet. (U. S.) 532, 9 L. Ed. 522; Parsons v. Boyd, 20 Ala. 118; Sanders v. Schnaelzle, 49 Cal. 59; Golder v. Bressler, 105 111. 419; Boyer v. Sims, 61 Kan. 593, 60 Pac. 309; Osgood v. Franklin 2 Johns. Ch. (N. Y.) 1, 7 Am. Dec. 513.

One named as trustee in an express declaration of trust, if he has in no way indicated an acceptance of the office, may refuse to accept it, and such disclaimer will relate back and prevent the vesting in him of the legal title.2 The effect of such disclaimer is to place the parties in the same situation as if he had not been named in the first place, and consequently, if there are other trustees who do not disclaim, they may act as trustees without him, while, if there are no others named, the legal title will, if the trust was created by devise, pass to the heir or devisee of the testator, and the court will appoint a trustee.3

If one who receives the legal title as heir or devisee of the previous holder thereof, as heretofore explained,4 is not competent to act, as not being a person within the scope of the terms of the declaration of trust, or is not a proper person for the office, the court will appoint a trustee, to whom the legal title will be transferred.5 Likewise, if for any cause the interests of the cestui que trust are liable to suffer by a continuance in office of a particular trustee, the court has full power to remove or relieve him and substitute another in his place.6

1. 1 Perry, Trusts, Sec.Sec. 38, 45, 240; Lewin, Trusts, c. 28; 1 Ames, Cas. Trusts, 230.

2. 1 Parry, Trusts, Sec.Sec. 259, 268; Robinson v. Pett, 3 P. Wms. 251; Burritt v. Silliman, 13 N. Y. 93, 64 Am. Dec. 532; Beekman v. Bonsor, 23 N. Y. 298, 80 Am. Dec. 269.

3. 1 Perry, Trusts, Sec. 273; 1 Ames, Cas. Trusts, 230; Taylor v.

Benham, 5 How. (U. S.) 233, 273, 12 L. Ed. 130; Wheeler's Appeal. 70 Conn. 511; Williams v. Otey, 8 Humph. (Tenn.) 563, 47 Am. Dec. 632.

4. Ante, notes 97, 98.

5. 1 Perry, Trusts, Sec.Sec. 340, 341; In re Abbott's Petition, 55 Me. 580.

6. 1 Perry, Trusts, Sec.Sec. 274-283; 1 Ames, Cas. Trusts, 223, 224; due influence, the omission of such an express power being occasionally referred to as itself a circumstance tending to show fraud or mistake.9

A trustee appointed by the court is not, in most jurisdictions, vested with the legal title by the appointment, but the previous holder of such title must make a conveyance thereof to him.7 In some states, however, the statute provides that the appointment shall vest the title in the new trustee, and occasionally that effect is given to the appointment apart from statute.