author: By the Court. Sandford, J.

text:
    Ring v. McCoun.
    An action brought to compel the conveyance of a farm to the plaintiff, on the ground that the defendant held it in trust for one who had conveyed it to the plaintiff, is an action for the recovery of real property, and under the code of procedure, must be tried in the county where the farm is situated.
    It is also an action for the determination of an estate, right, or interest in real property, and as such must be tried in the county where the property is situated.
    An alternative prayer for relief, that the defendant be adjudged to pay to the plaintiff the money originally intrusted to him for the purchase of the farm, does not affect the character of the action in this respect.
    The provision in the code of 1848, giving jurisdiction to this court in cases mentioned in section one hundred and three, " when the cause of action shall have arisen” in the city of New York, relates to the personal actions enumerated in that section, and it does not affect or control the clause giving jurisdiction “ when the subject of the action shall be situated” in that city. (Code of 1848, § 39,103 ; Code of 1849, § 33, 123, 124.)
    Where the subject matter of an action island (or some estate, right or interest therein,) . situate in some county other than New York, this court has not jurisdiction of the action under the code of procedure.
    This is so, although the acts which furnish the grounds of the suit, were all done in the city and county of New York, and in that sense the cause of action arose there.
    (Before Oaklet, Ch. J., and Sandeokd and Paine, J.J.)
    Jan. 9 ;
    April 13, 1851.
    Appeal from a judgment at the special term, allowing a demurrer to the complaint, and dismissing the latter for want of jurisdiction.
    The complaint stated in substance, that John Mason, deceased, during his life, intrusted the defendant with $3,500 in cash, with instructions to purchase a farm for James Mason, a son of John Mason, the deed to be taken in the name of the defendant absolutely, and the farm to be held upon a general trust, for the benefit of James Mason and for his possession. That John Mason died shortly afterwards, without having declared any other trust respecting the farm or money. That a farm was bought on Long Island, by the defendant, with the money só intrusted to him, some time in the year 1838, and the deed taken in his own name absolutely. That after taking the deed, James Mason took possession of the farm by permission of the defendant, and retained the possession until he sold it to the plaintiff, as after mentioned, and expended $4,000 upon it in out-buildings, &c., with the knowledge and consent of the defendant.
    That by reason of the instructions to the defendant and the purchase money furnished by John Mason, the defendant holds, and has always held the title of the farm in trust, and for the use and benefit of James Mason; by force of the statute no estate vested in the defendant; and the deed to him is a cloud upon James Mason’s title, in whom the legal and equitable estate was absolutely vested until he executed the deed to the plaintiff next mentioned.
    That about the 7th day of February, 1849, James Mason conveyed by a deed of bargain and sale, the farm and premises to the plaintiff, for the consideration of $6000, mentioned in the deed. That about the 20th of March, 1849, the plaintiff called upon the defendant, and exhibited to him a written notice, signed by James Mason, notifying him of the sale of the farm to the plaintiff, and requesting him, upon the demand of the plaintiff, to execute the papers necessary to vest the legal title to the farm in the plaintiff. That the plaintiff at the same time exhibited to the defendant, the deed of James Mason, and also a deed prepared for the defendant’s execution, which the plaintiff demanded that defendant should sign for the purpose of vesting in the plaintiff the legal title to the farm. That the defendant absolutely refused so to do, and also refused to sign any deed for that purpose. Copies of these deeds were annexed, from which it appeared that the farm is in the county of Queen’s.
    The prayer of the plaintiff’s complaint was, that the defendant might be directed to convey the legal title of the farm to the plaintiff, or that he might be directed to pay to the plaintiff the money received by the defendant of John Mason, deceased, together with the value of the improvements made on the farm by James Mason and the costs of the action.
    The defendant demurred to the complaint on the grounds :
    1st. That this court has no jurisdiction of the subject of this action; the same being brought for the recovery of real property situated in the county of Queen’s, or of an estate or interest therein, or for the determination, in some form, of such right and interest. . And the joining of the claim for money, with that mentioned in the preceding subdivision, can give this court no jurisdiction of the claim, in regard to the real estate in Queen’s county.
    2d. That there is a defect of parties defendant to the action, in the omission of John Mason’s heirs and personal representatives.
    3d. That several causes of action have been improperly united; viz. the claim to recover real property; the claim to recover personal property; and also, in the same action, a claim against the defendant, as trustee, by virtue of a contract, or by operation of law.
    4th. That the complaint does not state facts sufficient to con stitute a cause of action. (Under this there were several causes specified.)
    Vanderpoel, J., at the special term delivered the following opinion.
    This suit is brought to compel the defendant to execute to the plaintiff a deed of land in Queen’s county. ■ The first objection taken by the defendant is to the jurisdiction of the court. Section 123 of the code, (Laws of 1849, p. 640,) provides that “ actions for the following causes, must be tried in the county in which the subject of the action, or some part thereof, is situated.
    I. For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property.”
    Section 33, (page 621,) which defines the jurisdiction of this court, provides that the jurisdiction of the superioi court of the city of Hew York, shall extend to the actions enumerated in sections 123 and 124, when the cause of the action shall have, arisen, or the subject of the action shall be situated within those cities respectively.
    I regard the farm alleged to have been purchased by the defendant, as the subject of this action. It is surely for the determination of. the interest in the farm, situate in Queen’s county, that this action is brought; no decree can be made in favor of either party, which does not determine the right to the farm. Sections 123 and 33 must be taken together.
    The plaintiff contends, that as the money was paid to the defendant in the city of Hew York, and the * instructions to him to buy the farm, were given here, the cause of action, for the purposes of this question, must be deemed to have arisen in the city of Hew York. Section 123 provides clearly, that this action must be tried in the comity of Queen’s, as the subject is situated there. It is contended by the plaintiff, that this is not the test of the jurisdiction of this court; that though an action must be tried in one county, it does not follow that it may not be brought and prosecuted in another; that under the 33d section of the code of 1849, the supreme court has power to remove any cause into the supreme court, and change the place of trial of any transitory action. I think the plaintiff is wrong in this view. If the statute requires that an action of a particular character should be tried in one county, it follows, pretty conclusively from this, that the legislature did not intend that it should be brought and prosecuted in a local court of another county. If an action is of such a nature that it must be tried in Ohautauque county, it is quite natural to suppose, that the power which thus determined the place of trial, did not intend that it should be instituted and prosecuted in the county court of Suffolk county.
    The plaintiff relies upon the first subdivision of the 33d section of the code, which gives the court jurisdiction, when the cause of action shall ham a/risen within this city, or the subject of the action shall be situated within it. The words italicised, must be taken in connection with the words, “to the actions enumerated in sections 123 and 124.” The defendant says, the cause of action arose here, in contemplation of the statute. Let us test the argument, by the second and third subdivision of section 123. ’ .
    The second subdivision gives jurisdiction in actions “ for the partition of real property.” The third, “ for the foreclosure of a mortgage of real property.” Suppose a deed for real property in Erie, to he given in this city, could the grantee bring partition in this court, on the ground that his cause of action arose here,because his deed was given here?- So, of a mortgage for lands in Erie, executed here, could he maintain a suit of foreclosure in one of the local courts ? And would it be sound, in either of the above cases, to say, that the plaintiff’s cause of action, under section 33, must be deemed to have “ arisen ” here ? I think not. The argument in favor of the idea, that the cause of action arose here, would be quite as strong, in either of the above cases, as in the present. I consider the present, an action for the recovery of a farm in Queen’s county, or of an estate or interest therein, or for the determination, in some form, of such right or interest, and that this court has no jurisdiction of it. Unless the complainant proves a title to the farm, he is not entitled to a decree in his favor. Attempt to cover up and disguise the question as you may, it is an action brought to recover the farm; and I think this comt has no more right to entertain jurisdiction of it, than of an action of ejectment, or, under the code, an action in the nature of an ejectment, to recover the farm in Queen’s county.
    This view renders it rmnecessary to consider the point of -merits presented by the demurrer. I consider the demurrer well taken, and that the complaint must be dismissed.
    The cause on the appeal, was argued by,.

      J. J. Rmg, in person, and

      F. F. Marbu/ry, for the defendant.
   By the Court. Sandford, J.

We have no difficulty in affirming this judgment, on the ground taken by the judge at the special term. The suit is brought, most palpably, for the recovery of a farm in the county of Queen’s. The circumstance that the complaint does not pray the delivery of possession, has no influence on its character. If the prayer be granted, the plaintiff recovers the title to the farm, which in effect is recovering the farm. The court, as a matter of course, would add to the judgment a direction that the defendant deliver up the possession. _ If the plaintiff should decline such direction, a suit in the nature of an ejectment founded on the judgment, would give him the possession; the title being already vested in him by the judgment.

Nor does the fact that the judgment sought in this case would operate on the defendant personally, affect the point. The object of the suit is land, and nothing else. The alternative prayer, for the money intrusted to the defendant is of no consequence, because there is no pretence that he has misapplied the money, and the plaintiff, if entitled to recover at all, is entitled to the farm itself. He cannot, on the defendant’s refusal to convey, recover the value of the land, leaving it in the ownership of the defendant.

The action also falls within the other clause of the provision in the code of procedure. It is brought for the determination of an estate, right, or interest, in real property. We cannot assent to the argument, that this comprehensive language of the code, was designed merely to embrace the novel, and, as yet, scarcely tried, real action, originated by the revised statutes, entitled “ Proceedings to compel the determination of claims to real property in certain cases.” (2 R. S. 312.) Proceedings of this nature are, doubtless, within the language of the code; and so are a great many other actions equally embraced by it. The argument would be just as strong in favor of saying that none but actions for an equitable right in lands, were intended by the language in question. We are informed that the same view we take of the extent of this provision, was held by Hr. Justice Hitchell, in the supreme court in this district, two or three weeks since; and that he applied it to an action brought for the purpose of declaring a conveyance of lands fraudulent, and to have the grantee claiming the land as his own, declared to be a trustee for others.

Then as to our jurisdiction of this action. The code of 1848, which was in force when the suit was commenced, enacts that the jurisdiction of this court shall extend, first, to the actions enumerated in section one hundred and three, when the cause of action shall have arisen, or the subject of the action shall be situated in the city of Eew York; second, to all other actions where the defendants reside or are personally served with process in that city; and third, to corporations in certain cases. (Code of Procedure of 1848, § 39.) Eow the action before us does not fall within the second subdivision, for the reason that it is one of those enumerated in section one hundred and three. It is true there are no words of exclusion, as there are in the code in respect of justices’ courts ; but the effect is the same, because the whole jurisdiction is bestowed by the code itself.

Then as to section one hundred and three; it contains, besides actions for the recovery of real property &c., partitions, and the foreclosure of mortgages; a large class of actions purely personal in their nature, most of which in the former practice were termed transitory, and others that were made local by statute. It is plain, therefore, that the words in section thirty-nine, “ when the cause of the action shall have arisen” in the city of Eew York, relate to the class of personal actions, and that they do not affect or control the other words, “ when the subject of the action shall be situated” in this city.

To express our idea in a different form, when the subject of the action, not of a transitory nature, is situated in the county of Queens, that fact must govern as to our jurisdiction; although it may be true, that the acts which furnish the grounds of the suit were all done in the city of Eew York, and in that sense the cause of action arose there.

There is no analogy between this question and the jurisdiction of the vice-chancellors under the revised statutes. The latter had jurisdiction where either of the persons proceeded against resided in their respective circuits, without regard to the place where the cause arose,, or where the subject matter in controversy was situated. (2 R. S. 168, § 2.) Eor does our construction oust the supreme court of any jurisdiction which the late court of chancery exercised against persons in this state, affecting lands owned or claimed by them in other states or countries. The jurisdiction of the supreme court is made general by the constitution. The code does not define it; much less does it assume to restrict its limits.

Without looking into the other grounds of demurrer, we must affirm the judgment.

Judgment affirmed.


source: Caselaw Access Project

author: By the Court. Duer, J.

license: Public Domain

text:
    Noyes v. Blakeman and others.
    Before the revised statutes, the doctrine was established, in this state, as it is in England, that where real or personal property is settled to the separate use of a married woman, her power of disposition and control is subject to no other limitation or restraint, than such as the terms of the settlement directly and plainly impose.
    She might, therefore, charge it with the payment of debts, and when with her assent, credit was given to her on the faith of such estate, the creditor acquired a lien which equity would enforce.
    Since the revised statutes, where real estate is settled to a married woman’s separate use, neither the estate nor the rents and profits, can be charged for any debt or liability created, or imposed upon it, by her. It is no longer her estate. The wjiole estate is in the trustee, and her interest is inalienable.
    Neither can the surplus rents be reached, because, as a married woman, she is not personally liable for debts.
    A trust of real estate to receive the rents and profits, and apply them to the separate use of a married woman, is a valid express trust, under the provisions of the revised statutes relative to uses and trusts.
    All the necessary expenses of a trustee are to be reimbursed to him out of the estate, although no provision in relation to such expenses be contained in the instrument creating the trust.
    Where the trastee of real estate, settled for the separate use of a married woman, necessarily defended suits brought to charge the estate with her insolvent husband’s debts, on the ground of the invalidity of the settlement; it was held that he might reimburse himself for the reasonable expenses incurred, from the funds arising from the trust estate.
    Such expenses are, in all cases, a charge on the rents and profits, and when incurred, for the benefit of the remaindermen as well as the life beneficiary, are a charge on the inheritance.
    The solicitor and counsel who defended suits of this character, was held entitled, to recover such expenses against the estate which he had defended on the retainer and agreement of the trustee to compensate him out of the rents and profits.
    (Before Ddbr, Mason, and Campbell, J.J.)
    March 4, 5 ;
    April 20, 1850.

      The bill in this cause was filed, September 16,1846, before the vice-chancellor of the first circuit, by Willian Curtis Eoyes against Henry Blakeman and Ann Maria his wife, and Elisha Ruckman, for the purpose of obtaining payment out of the separate estate of Mrs. Blakeman, of the several claims and demands of the complainant for costs and counsel fees incurred by the defendants Mrs. Blakeman and her husband, in the prosecution and defence of suits at law and in chancery, relating, as alleged, to the separate estate of Mrs. Blakeman, and for her particular use and benefit. The bill was taken as confessed against Henry Blakeman. Mrs. Blakeman, by leave of the court, filed her separate answer to the bill. Ruckman also appeared and filed his answer. Replications were filed by the complainant, to both the answers; and proofs were taken by both parties entitled.
    The cause was argued at the special term of the supreme court, before Edmonds, J., who, in July, 1849, made a decree in favor of the plaintiff for his whole claim, chargeable on the separate estate of Mrs. Blakeman. An order for a re-hearing by way of an appeal, was made by the general term of the supreme court; after which the cause was transferred to this court.'—The facts appearing by the pleadings and proofs, sg far as it is needful to state them to understand the judgment of the court, were these:—At the time of the marriage of Blakeman and his wife, the latter was an infant, and afterwards, while under age, became entitled to certain real estate in fee as heir of her father, W. Smith. On the 7th of October, 1842, she then having attained her full age, a deed of settlement was executed by and between Blakeman and wife and Henry F. Belden, by which the two former conveyed the real estate to Belden in trust for the following purposes as therein expressed, viz:

      “ To and for the several uses, intents and purposes, and upon the trusts hereinafter mentioned and expressed concerning the same: that is to say, in trust, in the first place, to pay out of the rents, income and profits of the said premises, the interest accruing and to accrue upon the aforesaid mortgages and other incumbrances, in the next place to pay thereout all necessary taxes and assessments upon the said premises, and in the next place to pay thereout all, the necessary expense incurred in the needful repairs and insurance of the buildings erected on the said premises, and after the payment of the said interest and assessments, and expenses thereto, to pay the remainder of the said rents, income, profits and proceeds, to the said Ann Maria, upon her own separate receipt, notwithstanding her coverture, to the intent and purpose that the same or any part thereof may not be at the disposal of, or subject to the control, debts, liabilities or engagements of the said Henry Blakeman, or of any future husband she may have, but at her own sole and separate use and disposal, and upon this further trust upon the decease of the said Maria during her coverture with the said Henry Blakeman, or any other future husband she may marry, to appropriate the said proceeds (after deducting the outgoings aforesaid,) and to apply and dispose of the same in such manner as the said Ann Maria shall, by her last will and testament, duly executed, direct and appoint, and in default of such appointment, then to apply the said proceeds towards the maintenance and education of the child or children of them, the said Henry and Ann Maria, until they shall arrive at age, or if females, be married, if any such children then be living at her decease, and if no child or children shall be then living, then to pay the same to the said Henry Blakeman during his life; and it is hereby declared and agreed by and between all the said parties to these presents, that the said Ann Maria shall have power during her coverture with the said Henry Blake-man, or with any other future husband she may marry, to devise the said pieces, parcels or lots of ground and premises, by her last will and testament, in the same manner as though she were a feme sole and unmarried, and the said party hereto of the second part is hereby empowered to use all necessary ways and means for the recovery of the rents and profits of the said premises, and to reimburse himself all necessary expense^ in the execution of the trust hereby reposed in him, and it is hereby further declared and agreed, that upon the death of the said Henry F. Belden, party hereto of the second part, if the same should happen before the decease of the said Ann Maria, she, the said Ann Maria, shall be, and is hereby empowered to appoint one or more trustees in the place and stead of the said Henry E. Belden, party hereto of the second part, and also shall be, and is hereby empowered to appoint any new trustees in the place and stead of those, at any time so to be appointed, such newly appointed trustees to be invested with the same powers, and to hold the same premises upon the same trust as hereinbefore set forth.’*
    In April, 1845, the defendant, Ruckman, by an order of the court of chancery, was substituted as trustee for Mrs. Blakeman, under the trust settlement, in the plade of Belden.
    Blakeman, at the time of the settlement, was in embarrassed circumstances, and soon after became insolvent. In December,
    1843, he was discharged from his debts, under the bankrupt act of Congress. The complainant’s professional services commenced in the winter of 1842-3, and continued till the fall of 1844, and were briefly as follows:
    1. Counsel fee in a suit in the marine court against Blakeman, tried by the complainant’s assistant. 2. Taxed costs in a suit by Bogardus, administratrix, &c., in the common pleas, against Blakeman and wife, discontinued after a demurrer to the declaration. 3. Taxed costs and counsel fee in a suit in chancery by the same administratrix, against Blakeman and wife, brought in April, 1843, to subject the trust estate to the payment of an old debt of Blakeman’s. In this suit, separate answers were put in, replications filed, and proofs were taken. Mrs. Blakeman understood that the complainant, Mr. Hoyes, was looking to her separate estate for his remuneration, and assented to it. After his bankrupt discharge, Blakeman filed a cross bill, setting it up. Proceedings were then suspended in the Bogardus suits. 4. Taxed costs and counsel fee in a suit in chancery, brought in August, 1843, by John H. Williams against Blakeman and wife, Belden the trustee, and T. Morrell, a mortgagee of the trust property; the object of which was to subject the trust estate to an old debt of Blakeman’s. Mr. Hoyes defended this suit, at the request of both Blakeman and Belden. It was severely litigated until after Blakeman’s discharge in bankruptcy. 5. Then the general assignee in bankruptcy, Mr. Waddell, prosecuting in behalf of Williams, filed a bill in equity, in April, 1844, in the circuit court of the United States, for the southern district of New York, against Blakeman and wife, Belden and Morrell; claiming that the trust deed was invalid as against Blakeman’s creditors, and that he, as assignee, was entitled to the property. After some proceedings for a receiver, this suit was settled June 28th, 1844. The costs and counsel fees in this suit were a part of Mr. Noyes’s demand against the trust estate. The suits of Williams and Waddell, were defended by Mr. N. at the request of both Blakeman and Belden, and the latter agreed the expense should be paid from Mrs. B.’s separate estate. 6. Mr. Noyes also conducted the proceedings by which Blakeman obtained his discharge in bankruptcy, and claimed for his costs and a counsel fee in that behalf. In none of the services rendered, did Mr. N. proceed on the responsibility of Blakeman, who was known to be destitute of property.
    The costs were regularly taxed, and a bill rendered to the trustee. Some efforts were made to bring about an adjustment, which were fruitless, and the trustee paying no part of the clainq this suit was commenced.

      0. Tracy, for the complainant.
    1. The plaintiff’s right to recover is sustained by the following propositions of fact.
    The services for which payment is sought were rendered in behalf of Mrs. Blakeman’s separate estate, and were indispensably necessary for its preservation.
    They were also useful, and effectually protected such estate against the attacks then making against it. They were rendered on her request, and under her constant oversight and direction.
    She promised that they should be paid out of her separate estate.
    The services were rendered and the promises made, with the knowledge, sanction, and assent of the trustee for the time being. The separate estate was relied on for payment- by the plaintiff, and the whole amount of the claim was incurred exclusively on the faith of the separate estate alone.
    The bills of costs were duly rendered, and were taxed on aotice; and the income of the estate is ample to provide for the payment of the sum due to the plaintiff, without embarrassing the trust.
    H. The plaintiff is equitably entitled to payment out of the separate estate of Mrs. Blakeman, in the hands of the defendant Euckman, her trustee.

      I. As to her separate estate, she is to be regarded as a feme sole, having full power to contract liabilities, and create liens and charges affecting such estate. (3 J. C. R. 77, 120, Jaques v. Meth. Episcopal Church; 17 J. R. 548, S. C.; 2 Story’s Eq. Jur. § 1398-1400 and note; McQueen on Husb. and Wife, 294; 13 London Jurist, 739, Gaston v. Frankham; 7 Paige, 9, North Amer. Coal Co. v. Dyett; 20 Wend. 570, S. C.; 4 Barb. S. C. R. 407, Firemen's Ins. Co. of Albany v. Bay; Clancy’s Rights of Women, 343, 4; 9 Vesey, 486, Jones v. Harris; 14 do. 542, Essex v. Atkins; 7 B. Monroe, 293, Jarman v. Wilkerson.)

    There is no clause in the deed, nor anything in the nature of the trust, depriving her of the right of anticipating the income, which properly attaches to a wife’s separate estate. (Hill on Trustees, 422-4; 1 Jarman on Wills, 830, 1; 2 Roper on Husb. and Wife, 239; 9 London Jurist, 82, Harrop v. Howard; 3 Maddock’s Ch. R. 387, Stewart v. Kirkwall; Id. 94, Greatly v. Noble: 4 Simons, 82, Murray v. Barlee.)

    The trust deed being intended to secure the property to her separate disposal as to both income and principal, should be construed liberally in favor of her free and ample control over her own estate. (Willis on Trustees, 128-130; 2 Barb. S. C. R. 493, Stuart v. Kissam.)

    The right of a married woman to anticipate her income, in order to preserve her estate by a necessary legal defence, is indispensable to her safety; and a charge made for such a purpose should be sustained and favored by the court. (3 M. & K. 209, 221, 226, Murray v. Barlee; S. C. 4 Sim. 82; Willis on Trustees, 130.)
    2. The statute concerning alienations by cestui que trust, does not affect the plaintiff’s claim. (1 R. S. 729, § 60; Id. 730, § 63; Id. 729, § 57; 1 Barb, C. R. 34, L'Amoureux v. Van Rensselaer; 3 Sandf. C. R. 104, Rogers v. Ludlow; 14 Wend. 265, Coster v. Lorillard; 4 Barb. S. C. R. 407, Firemen's Ins. Co. v. Bay; 2 R. S. 174, § 38; 5 Paige, 586, Hallett v. Thompson; Willis on Tr. 128-130; 1 Hill’s (So. Car.) 228, Magwood v. Johnson; 1 McCord, 267, Montgomery v. Eveleigh; 4 Dess. 591, James v. Magrant; Id. 19, Carter v. Eveleigh; Amb. 103, Barnessy v. Powell; 7 Paige, 9; 20 Wend. 570; Lewis on Trustees, 453.)
    3. The trust estate also became liable through the trustee, Belden, who knew, sanctioned, and assented to the litigation in defence of the property, and took no other steps to preserve the estate when it was in peril, but left the care of its defence with Mr. and Mrs. Blakeman. (2 Greenl. 373, Upton v. Gray; 9 Paige, 9.)
    4. The plaintiff having relied wholly upon the wife’s separate estate for compensation, while rendering it essential services, is entitled to payment out of such estate for services performed in faith of such payment. (4 Barb. S. C. R. 415; 3 Iredell Eq. R. 237, Frazier v. Brownlow; 9 Ves. 486, Jones v. Harris.)

      G. Judson and F. Samdford, for the defendants.
    I. The evidence given in the cause does not establish any agreement on the part of Mrs. Blakeman, by which her separate estate can be made, in equity, chargeable with the claim of the plaintiff, or any part thereof. There is no evidence in the case to create a charge on her separate estate, either as an appointment, or as a disposition of it by a contract in the nature of an appointment.
    II. ' Under the deed of trust executed by Blakeman and wife, to Belden, it was not competent for Mrs. Blakeman, either expressly or by implication, to create any charge on the property. She had no power to dispose of any part of the trust estate, ndr to make any appointment in relation thereto.
    1. By the deed referred to, a valid express trust is created. (IR. S. 728, §55, sub. 3.)
    2. Such express trust vested the whole estate in the trustee in law and in equity, subject only to the execution of the trust, and Mrs. Blakeman has no estate or interest in the land. (1 R. S. 729, § 60.)
    3. The interest of Mrs. Blakeman in the trust for the receipt of the rents and profits of lands was not assignable; but it is declared.by statute that she cannot m mvy ma/rm&r dispose of suoJi interest. (1 R. S. 730, § 63.)
    4. The trust being expressed in the deed creating the estate, it was not lawful for Belden as trustee, nor for Ruckman as his successor, to make any conveyance, or to do any other act in relation to the trust estate, in execution of any such alleged agreement on the part of Mrs. Blakeman, because it would have been in contravention of the trust. (1 R. S. 730, § 65.)
    5. By law, only the surplus rents and profits, beyond the sum that might be necessary for the support of Mrs. Blakeman, could be made liable in equity to the claims of her creditors. The bill did not make any case within the provisions of this law, and there is no such surplus. (1 R. S. 729, § 57.)
    6. The bill does not allege that any rents were due and unpaid to Mrs. Blakeman in the hands of her trustee, at the time of her alleged agreements, if they be proven to have been made by her. The interest of Mrs. Blakeman in the rents thereafter to accrue, and be received, was future and contingent. Until the rent accrued, the person who would be entitled to receive it under the trust deed remains uncertain. (1 R. S. 725, § 36.)
    HI. These objections appearing upon the face of the bill of complaint, the court cannot make the decree prayed for without, annulling the statute. The English cases, and the cases which arose in our state before the present law in relation to uses and trusts, have no application. (1 Barb. Ch. R. 34, L'Amoureux v. Van Rensselaer.)

    The decree made at the special term should, therefore, be reversed, and the bill of complaint be dismissed with costs.
   By the Court. Duer, J.

The object of this bill is to charge the separate estate of Mrs. Blakeman, a married woman, with the payment of various sums of money, that are alleged to- be due to the plaintiff, for his disbursements and services as her solicitor and counsel, in several suits in relation to her estate, in which she employed him. A decree in his favor has been rendered at a special term of the supreme court, for the whole amount of his claims, and it is upon an appeal from this decree that the cause is now before us.

We are satisfied that all the material allegations in the bill in relation to the employment of the plaintiff, and the nature and value of his services, are sufficiently established by the proofs, and consequently that we have only to consider the question of law, whether he is entitled, in whole or in part, to the relief that has been decreed to him.

The bill avers that all the suits, in which the plaintiff was employed, had a direct relation to the estate held in trust for Mrs. Blakeman, and that when he was employed, it was expressly understood and agreed, that he should be paid for his services, out of this estate, and that it was upon the faith of this agreement that his services were rendered. The bill also avers, that in two of these suits, those which are last mentioned in the bill, the assent of Mrs. Blakeman’s trustee to the employment of the plaintiff, upon the terms that have been stated, was expressly given, but there is no such averment in relation to the remaining suits, nor does it appear from the evidence that such was the fact.

In order to determine whether a proper decree has been made, we must first inquire into the nature of the estate or interest of Mrs. Blakeman, in the property which is sought to be charged, and which the bill and even the decree describes, as her separate estate. If this description is true, the propriety of the decree in its present form, is not to be questioned, for no doctrine is more •fully and clearly established, than that a feme covert in regard to her separate estate is considered, in equity, in all respects, as a feme sole.

The rule was first laid down in these "broad terms, by Lord Hardwicke, in Peacock v. Monk, (2 Ves. Sen. 190,) and for a time, courts of equity seem to have hesitated as to its adoption, and were disposed to qualify and restrict its application. No traces, however, of such hesitation and doubt, are to be found in the more recent decisions. But on the contrary, they have adopted and carried out the rule in the fullest sense that its terms import. Consequently, it is now certain that where real or personal property is settled to the separate use of a married woman, her power of disposition and control is subject to no other limitation or restraint, than such as the terms and the settlement directly and plainly impose. Where no such limitation exists, the power to sell and convey her separate property, necessarily includes the power to charge it with the payment of debts, and in all cases, where with her knowledge and assent, credit is given to her upon the faith of her separate estate, the creditor acquires a lien which a court of equity will enforce. (Hume v. Tenant, 1 Bro. Ch. Ca. 16; S. C. 2 Dickens 560; Fettiplace v. Gorges, 1 Ves. Jr. 46; 3 Br. Ch. Ca. 8; Essex v. Atkins, 14 Ves. 542; Heathy v. Thomas, 15 Ves. 596; Murray v. Barlee, 3 M. & K. 220; Owen v. Dickinson, 1 Cr. & Ph. 53; Tullett v. Armstrong, 1 Beav. 1.)

In some of our sister states, a rule exactly the converse of that which prevails in England, has been adopted, but our own decisions have followed substantially the English doctrine. (Jaques v. Meth. Epis. Church, 17 John. 548; North American Coal Co. v. Dyett, 7 Paige 9; S. C. 20 Wend. 570; Gardner v. Gardner, 7 Paige 112; Cumming v. Williamson, 1 Sand. Ch. R. 17; Curtis v. Engel, 2 Ibid. 287.)

Had the trust deed, which is in evidence in this case, been executed before the revised statutes were in force, this equitable doctrine would have been applicable in its whole extent, and as the terms of the deed impose no restraint on Mrs. Blakeman’s power of disposition, we could not have hesitated to affirm the decree exactly as it stands. Upon this supposition, Mrs. Blake-man would have been an equitable tenant for life with an unlimited power to dispose of and charge her estate, and the facts set forth in the bill and substantiated by the proofs, would have given to the plaintiff an unquestionable title to the relief that he has obtained. But the deed was not executed until 1842, and we agree with the learned counsel for the defendant, that this circumstance has rendered the authorities upon which the plaintiff’s counsel mainly relied, wholly inapplicable. It is in the revised statutes that we must now seek the rules, that in con-staling the trust deed we are hound to follow. And it is by a reference to their provisions, that not only the validity of the trust, but the nature and extent of Mrs. Blakeman’s interest in the lands which the trust embraces, must be determined. Applying this test, it is impossible to say, that these lands were her separate estate, for this ms so far from being true, that in reality she had no estate or interest in them at all; the whole, legal and equitable, by the express words of the statute, being vested in her trustee. (1 Rev. Stat. 727, § 60.)

The trust which the deed creates, is to receive the rents and profits of the lands, and pay them over to Mrs. Blakeman, to her separate use during her life, and it is therefore valid, according to a recent decision of the court of appeals, which has fortunately settled a long disputed and very doubtful question, (Leggett v. Perkins 2 Comstock’s R. 297,) as an express trust under the third subdivision of section 55, in the article of uses and trusts. (1 R. S. 728.)

By a subsequent section in the same article, it is declared, that no person interested in such a trust can assign, or in any manner dispose of his interest, and we entirely assent to the opinion of Chancellor Walworth, in L'Amoureux v. Van Rensselaer, (1 Barb. Ch. R. 36,) that the necessary effect of this prohibition, is to prevent the beneficiary from pledging the rents and profits by anticipation, and from creating any lien thereon, in law or in equity, by any contract means or process whatever. The words of the statute operate as an absolute restraint of alienation in any form. A charge upon lands, or upon the rents and profits, is a contingent disposition of them, partial or entire, according to the amount of the charge, and it is obvious that the amount of the charge, or of successive charges, may be such as to absorb, when enforced, the whole value of the lands, or the whole rents and profits during the continuance of the trust.

It follows from these observations, that the claims of the plaintiff, so far as they rest upon the personal agreement of Mrs. B., her promise, that he shoidd be paid out of the rents and profits, cannot be sustained; she had no right to make the promise, nor have we the power to compel its execution. These items, therefore, in his account which embraced the costs and fees for his professional services in the three suits which are first mentioned in the bill, must be rejected. The employment of the plaintiff in these suits, was the act of Mrs. Blakeman and her husband, without the co-operation of the trustee; it was with them, alone, that the special agreement for his compensation was made, and it is upon the validity of this, agreement, as creating, in connexion with the nature of his services, an equitable lien, that his claim to the aid of the court is exclusively founded. It was, however, urged upon the argument, that if the existence of a positive lien, as resulting from the agreement of the parties, must be denied, yet the plaintiff, as a creditor, is entitled to the satisfaction of his debt, from the surplus rents and profits, under section 57, in the article of uses and trusts. (1 Rev. Stat. 729.) But this section is limited by its terms to demands, for which the debtor is personally liable, and which are capable of being enforced by an execution at law. A married woman, who is incapable during her coverture of contracting debts for which she is personally liable, is not within the purview of the section, and can have no creditor entitled to the remedy which it gives. This construction was given to the statute by the chancellor, in L'Amoureux v. Van Rensselaer, and it has been followed by Vice-Chancellor Sand-ford, Rogers v. Ludlow, (3 Sand. C. R. 104.) It is alleged in the bill, that the suits in which the plaintiff was retained by Mrs. B. and her husband, related to the trust estate, and that it was for the purpose of protecting the estate against the claims of the creditors of the husband, that his services were required; in other words, that his services were rendered for th§ benefit of the estate; but although this fact, without any express agreement, may be sufficient to sustain a charge upon rents and profits, when a married woman has a separate estate, and an unrestricted power of disposal, yet we apprehend, that when she has no such estate and no such power, the assent of her trustee is indispensable. Even in England, we infer from the cases, that this assent is necessary, where a feme covert, having a separate estate, is restrained from alienation.

Although, for the reasons that have been given, the larger portion of the claims of the plaintiff must be disallowed, it by no means follows, that the decree which he has obtained is to be wholly reversed. On the contrary, as to the residue of his claims, we have no difficulty in sustaining it. In the other suits that are mentioned in the bill, he was employed by the trustee as well as by Blalceman and his wife, and it is expressly alleged, and we think sufficiently proved, that the trastee was a party to the agreement for his compensation. The object of the plaintiffs in, these suits, was to charge the debts of the insolvent husband upon the trust estate; in other words, to set aside the trust deed, which was a post-nuptial settlement, as fraudulent and void. The defence of those suits was, therefore, a duty, which the law imposed upon the trustee, and for all reasonable expenses incurred by him in the discharge of this necessary duty, he was entitled to reimburse himself from the funds in hand, and from such as he might thereafter receive from the trust estate. The law is most clearly settled, and it would be a reproach to its principles or its administration, were it otherwise, that all the necessary expenses of a trustee, that is, all expenses of every kind, which are reasonably and in good faith incurred by him, for the defence, protection, or reparation of the estate, are to be treated in equity as a charge, in all cases, upon the rents and profits, and when incurred for the benefit of the whole estate, that is, for the benefit of those entitled in remainder as well as the immediate cestui que trust, upon the inheritance and fee. (Hide v. Haywood, 2 Atkyns 126; Balsh, v. Hiqhsham, 1P. Will. 455; Caffrey v. Darby, 6 Ves. 499; Worrall v. Hartford, 8 Ves. 8; Dawson v. Clarke, 18 Ves. 254; Wilkinson v. Wilkinson, 2 Sim. & St. 251.) Pior ° can it be doubted, that where the trustee is not willing to render himself personally liable, he may, by an express agreement, transfer his own equitable lien to a third party, by whom the necessary funds are advanced, or the services from which compensation is due are rendered. (Oases ut supra)

That such are the general rules of law, was not denied by the learned counsel for the defendant; but he strenuously insisted that where a trust is created under the revised statutes, in relation to the receipt and application of rents and profits, the trustee has no .claim to be reimbursed for any expenses, however necessary, that are not expressly authorized by the terms of the trust, nor can it be denied that there are some expressions in the opinion of the chancellor, in L'Amoureux v. Van Rensselear, which, detached from the context, may seem to bear this interpretation. But it is impossible that such could have been the meaning of the chancellor. The doctrine in equity is so unquestionable and familiar, that it may be regarded as elementary, that all the necessary expenses of a trustee are to be reimbursed to him out of the estate, although no provision whatever in relation to such expenses is contained in the deed or other instrument, by which the trust is created. In every such instrument, there is an implied direction that all such expenses as the preservation or protection of the estate may require, shall be incurred, and an implied stipulation or promise, that when incurred, they shall be a charge upon the estate. (Worrall v. Hartford, 8 Ves. 4; Lewin on Trusts 455.) It is certain that no provision is to be found in the revised statutes, by which the rights and duties of trustees, in relation to expenses incurred by them in the execution of their trust, are in any degree varied or affected, and we shall not dwell on the injustice and absurdity of a doctrine, that would enable a trustee, without a violation of his trust, to surrender the possession of the trust property, to any person who upon any grounds might choose to claim it.

The agreement of the trustee, in the present case, that the plaintiff should be compensated for Ms services, out of the rents and profits of the estate, was reasonable and just, and must be carried into effect. The decree, however, must be so far altered, as to limit the recovery of the plaintiff to the sum with interest, that the agreement of the trustee embraced; and thus modified, it is affirmed, but without costs to either party on this appeal.


text:
    Litchfield and others v. White and Leonard.
    In general, a trustee is bound to manage and employ the trust property for the benefit of the beneficiary, with the care and diligence of a provident owner.
    Ho will not be exempted from responsibility for losses occasioned by his negligence, on the ground that he was equally improvident in his own affairs.
    Gross negligence, in the ordinary use of language, signifies negligence of an aggravated character, as distinguished from that which is merely careless or not palpably culpable.
    When the negligent act is such, that, at first blush, it strikes the mind as manifestly culpable or aggravated, it is gross negligence.
    A stipulation limiting the liability of a trustee to his own gross negligence or wilful misconduct, exonerates him from a great portion of the responsibility which the law attaches to his office.
    Such a stipulation, in a general assignment to a trustee, for the benefit of creditors, is evidence of an intent to hinder, delay, and defraud creditors, and it renders the assignment void as against them.
    The courts of this state have never held an assignment to be void on its face, which ■ simply vested the debtor’s estate in trustees, and directed them to convert it into money, and apply it absolutely, and, without reserve, to the payment of his debts, whether equally or with preferences. The invalidity of such assignments, as have been adjudged void per se, has arisen from the insertion of clauses beyond or varying the necessary provisions for transferring the debtor’s property, and appropriating it to the payment of his debts.
    (Before Oakdey, Ch. L, and Sandford and Paine, J.J.)
    Jan. 8 ;
    April 20, 1850.
    The suit was commenced in September, 1848, by E. Darwin Litchfield, Edwin 0. Litchfield, and Thomas H. Hubbard, against Robert H. White and William H. Leonard. The complaint set forth the recovery of a judgment by the plaintiffs against White for $2057 56, in the supreme court, on the first of May, 1848, the issuing of an execution against White’s property, and the return of the same wholly unsatisfied. That previous to the sixteenth day of December, 1847, several suits for the collection of debts had been commenced against White, and he had, for several days, concealed himself, to avoid the service of process in other suits about to he commenced against him. That he then executed an assignment, in these words, viz.

      u This Indenture, made the sixteenth day of December, one thousand, eight hundred and forty-seven, between Robert H, White, of the City of Hew York, merchant, of the first part, and W. H. Leonard, of the said City, Counsellor at Law, party of the second part—
    Whereas, the said party of the first part is indebted unto divers persons, in large and considerable sums of money, which he is unable at present to pay in cash, but is desirous of providing for the payment thereof as far forth as his property and effects will enable him to do. How, therefore, this indenture witnesseth, that the said party of the first part, in consideration of the premises, and of the sum of one dollar, lawful money of the United States of America, to him in hand paid by the said party of the second part, at and before the ensealing and delivering hereof, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, assigned, transferred and set over, and by these presents'doth grant, bargain, sell, assign, transfer and set over unto the said party of the second part, all the goods, wares and merchandise of the said party of the first part, and all promissory notes, drafts, bills of exchange and securities belonging to the said party of the first part, and all hooks, debts, claims and demands owing to the said party of the first part, from any and all persons whomsoever, and all hooks of account, vouchers and securities belonging to the said party of the first part, and generally all property and effects of every nature, kind and description' belonging to the said party of the first part, excepting such as is by law exempt from execution; to have and to hold the same unto the said party of the second part, in trust, for the use and propose following, that is to say, to sell and dispose of the said hereby assigned property, and to convert the same into cash, and to collect the moneys due and to grow due upon the promissory notes, drafts, bills of exchange, securities, book debts, claims and demands hereby assigned or so much thereof as shall he found collectible, and after deducting and retaining out of the proceeds of such sales and collections all expenses that he shall be put to in.making the same, and reasonable compensation for his services in execution of the trust hereby reposed, to distribute and divide the net proceeds of such sales and collections unto and among all the creditors of the said party of the first part, ratably and proportionably to them several and respective claims and demands against him. And the said party of the first part doth hereby make, constitute and appoint, irrevocably, the said party of the second part, his true and lawful attorney, to take and use all due and lawful ways and means, in the name of the said party of the first part, or otherwise, to collect and recover the outstanding debts, claims and demands hereby assigned. And the said party of the second part doth hereby accept the trust so reposed in him as aforesaid, and covenant and agree to and with the said party of the first part, to execute the same to the best of his ability. And it is hereby mutually agreed, by and between the parties hereto, that the said party of the second part shall not he liable or accountable for any loss that may he sustained by said trust property, or the proceeds thereof, unless the same shall happen by reason of his own gross negligence or wilful misfeasance.”
    The assignee, Mr. Leonard, also signed and sealed the assignment.
    The complaint charged that the assignment was made by "White with the intent to hinder, delay and defraud creditors of White, of their lawful suits, debts or demands; that the same was fraudulent and void in law, as against creditors of the said White, at the time the same was made.
    The complaint then proceeded to charge various acts and badges of fraud, on which it insisted that the assignment was fraudulent; hut which are omitted because they were not considered by the court.
    The complaint prayed that the assignment might he adjudged to be fraudulent and void, and that the same might he set aside, and that a receiver of the assigned property and of the property of White, might he appointed, and that he might he ordered to pay out of the proceeds of the assigned property which may come to his hands or under his control, the judgment of the plaintiffs, with interest and the costs of the action. Also for an injunction, and for other relief.

      The defendants answered separately, denying all the fraud alleged, and insisting on the validity of the assignment.
    The cause was tried before Sahdfobd, J. in October, 1849, who decided that the assignment was on its face fraudulent and void as against the plaintiffs, and rendered a judgment in conformity to the prayer of the complaint. The defendants appealed to the general term.

      L>. Lord, for the defendants.
    The clause that the assignee should not be liable, except for gross negligence or wilful default, did not vitiate the assignment.
    The assignee is not by law, liable otherwise than for gross neglect or wilful fault.
    A trustee is not liable for ordinary negligence. (4 J. C. R. 619, Thompson v. Brown.) It would be unreasonable, if it were otherwise, as he is acting for others. Such neglect as does not befal a man in the ordinary walk of life, is gross negligence. If a trustee exercises the same diligence that such a man does, then his failure is only ordinary negligence ; it is not gross.
    In ordinary cases, this exemption would be too broad, yet here the covenant of the assignee, to execute the trust to the best of his ability, qualifies such exemption, and limits it to neglect or fault, happening after the exercise of the assignee’s best ability. If he does not execute the assignment to the best of his ability, he will be guilty of gross negligence, and thus render himself liable as if the clause complained of were omitted.

      0. Tracy and E. 0. Litchfield, for the plaintiffs.
    The assignment itself, by reason of its express provisions, is fraudulent in law, and void. The clause providing that the assignee “ shall not be liable or accountable for any loss that may be sustained by said trust property, or the proceeds thereof, unless the same shall happen by reason of his own gross negligence, or wilful misfeasance,” is an attempt to exempt the assignee from the liability which the law attaches to the office of trustee, and is therefore evidence of an intent to delay creditors, by placing the property beyond their reach, and to defraud them, by depriving them of their legal remedies against the assignee.
    I. The provision in question exempts the assignee from the full measure of liability, which the law attaches to the character of trustee. The degree of diligence required of trustees is “ the care and diligence of a provident owner.” (Willis on Trustees, 125, 189, 172; Lewin on Trustees, 299; 2 Kent’s Com. 230, 6th ed., note a; 15 Petersd. Abridg. 143, Title Trustees, note; Hester v. Hester, Dev. Eq. 328.) And assignees have been held by the courts to the exercise of this degree of diligence, and have been made personally responsible for omitting it. (15 Ohio Rep. 593, State of Ohio v. Guilford; 1 Hoffman’s Ch. Rep. 150, Bowman v. Sabbaton; 5 Wharton 530, Estate of Davis; 4 Pick. 518, Ward v. Lewis; 18 Pick. 48, Pingree v. Comstock; 2 Sch. & Lef. 229.)
    II. The assignment is not, therefore, such an absolute and unconditional appropriation of the debtor’s property to the payment of his debts, as the law sustains; but it contains a reservation and condition inconsistent with the rights of the creditors, and adequate to defeat them. Its intent was to protect the assignee in a degree of negligence which would inevitably delay and defraud creditors, and might be greatly to the benefit of the debtor. It is therefore void. 1. It is not absolute and unconditional, as required by law. (11 Wend. 187, Grover v. Wakeman.) 2. Assignments made with conditions, the direct tendency of which is to injure creditors, are always held fraudulent; as where the assignee is insolvent. (8 Paige 417, Reed v. Emery; 1 Barb. S. C. R. 211, Connah v. Sedgwick.) The law requires the assignee to be personally liable, and able to respond. If he be exempted from personal liability, the effect is equally injurious to creditors. So where, for any physical reason, the assignee is incapacitated from properly executing the duties of the trust. (1 Sandford’s Ch. Rep. 251, Cram v. Mitchell; 2 Ibid. 353, Currie v. Hart; 1 Ibid. 4, Van Nest v. Yoe.) 3. Adjudged cases have condemned similar provisions in voluntary assignments. (10 Paige 223, 227; 4 Bibb’s Ken. Rep. 446, Pitt's Trustees v. Viley; 1 Sandford’s Chy. Rep. 4, Van Nest v. Yoe.) Another class of cases, is where the assignment vests a power in the assignee, which, if he choose to execute it, will tend to injure or defraud creditors. This renders it void. (4 Sand. Ch. R. 552) Barney v. Griffin, S. C. affirmed in court of appeals.) And it does not depend on the consideration whether the assignee does or does not avail himself of the power.
    IH. It is no answer to these positions, to say that the assignee might still be held liable in equity for due diligence. Having refused, by the express terms of the assignment, to assume this liability, it is questionable whether it could be enforced against him. And even if it could be, it would still be dilatory and expensive, and would be a hindering and delaying of creditors. (3 Scammon Rep. 417—423, Howell v. Edgar.)

    IY. The general rule above claimed, is made more evident by the exceptions; being eases in which the liability of the trustee is limited. 1. Where deeds of trust are executed by the creditors, as well as by the debtor, known as composition deeds, there the consent of the creditors upholds the qualification. 2. Where the creator of the trust exempts the trustee from liability, and the contest is between the trustee and some other party, claiming under the same title, as in the case of executors and legatees. 3. Even in the cases last mentioned, where the question is between the trustee and creditors, no such exemptions by the terms of the deed, will shield the trustee from the ordinary liability of a trustee. There the creditors come in by title paramount. (2 Sch. & Lefroy’s R. 229, Doyle v. Blake; 4 Rawle’s Rep. 148, McNair's Appeal; 6 Watt’s R. 250, Verner's Estate; 1 P. Wms. 243, Churchill v. Lady Hobson; Prec. in Chy. Gibbs v. Kening, Case 48.)
    The plaintiffs therefore claim that the assignment in question is fraudulent and void, and the judgment appealed from should be affirmed with costs.
   By the Court. Sandford, J.

Among other objections to (che validity of this assignment, the plaintiffs contend that the clause exonerating the assignee from accountability for any loss which might be sustained by the trust fund, unless the same should happen “ by reason of Ms ovm gross negligence or wilful misfeasance,” renders it fraudulent in law, and void as against the assignor’s creditors. This clause, it is said, is an attempt to exempt the assignee from the liability which the law attaches to the office of trustee; and therefore shows an intent to delay creditors by placing the property beyond their reach, and to defraud them by depriving them of their legal remedies against the assignee.

Does this provision exempt the assignee from the liability which the law attaches to his office when assumed without any such qualification ? The trust created by an assignment for the benefit of creditors, is an active trust, to be executed by the assignee himself for the advantage of such creditors.

In general, a trustee is bound to manage and employ the trust property for the benefit of the cestui que trust, with the care and diligence of a provident owner. (Willis on Trustees, 125, 169.) Consequently, he is liable for every loss sustained by reason of his negligence, want of caution or mistake, as well as for positive misconduct. (Ibid. 112, 113 ; 2 Kent’s Comm. 230.) The adjudged cases abundantly sustain the treatises on this point, and the rule extends to public trusts and those undertaken without compensation, as well as to those in which the trustee is entitled to receive a commission.

One writer, it is true, says that a trustee is called upon to exert precisely the same care and solicitude in behalf of his cestui que trust, as he would do for himself; and that equity will not exact a greater measure than this. (Lewin on Trusts, 299.) The principle, we think, would have been expressed more in accordance with the spirit of the authorities which the author cites in its support, if he had said, “ the same care and solicitude, that a prudent person, or a man of reasonable or ordinary diligence, would use for himself.” (See Lord Eldon’s observations in Massey v. Banner, 1 Jac. & W. 247, 248.) We do not believe that sound legal policy will permit one who undertakes the office of trustee, to escape responsibility for losses negligently incurred to the trust fund, upon the plea that he was equally negligent and improvident, in the management of his own affairs.

We were referred to Thompson v. Brown, 4 J. C. R. 619, as establishing that a trustee is not liable for ordinary negligence. We think, on considering the case, that it does not sustain the defendants’ position. The chancellor there exonerated an administrator from a loss arising from his leaving with the surviving partner of the intestate, the goods of the partnership, to be sold for the joint benefit, it being a continuance in good faith, of the intestate’s confidence in that partner. At the same time, the administrator was charged for other assets of the estate, which he had put into the same partner’s hands, without security,'after they came under his own control.

If a trustee be required by law to exercise the diligence of a man of ordinary prudence in managing his own affairs, or the care of a provident owner; it is very apparent to us, that a stipulation limiting his liability to his own gross negUgenoe or wilfxtH misfeasance, exonerates him from a great portion of his legal responsibility. It is said, the term “ gross negligence” conveys no definite legal idea; and the language of learned judges in some recent cases cited in Angelí on Carriers, (§ 22, 23,168,) appears to sustain the assertion. However that may be, there is no doubt that in the ordinary use of language, and in the popular* sense of the words, it signifies negligence of an aggravated character, as distinguished from that which is merely careless or not palpably culpable. And the language, not being technical, we are bound to construe it in the sense in which it was doubtless understood and used by the parties to the instrument.

Regarding it in that sense, we cannot doubt that the stipulation in question exonerates the assignee from the consequences of want of caution, and of every degree of negligence except that which at first blush would strike the mind as manifestly culpable or aggravated. We will illustrate this by a reference to two or three decisions.

Thus, to take the case cited by ihe defendants, from 4 Johns. Oh. R., the act of the administrator, in placing assets received by him in the keeping of the surviving partner, does not strike the mind as culpable in itself, certainly not as an aggravated neglect. It was not gross negligence, yet it was negligence for which he was held responsible as a trustee.

There was still less of obvious negligence in Doyle v. Blake, 2 Sell. & Lef. 230, where an executor, who at first disclaimed to interfere generally, and afterwards renounced, was held liable for the acts of his co-executor. So in Bowman v. Rainetaux, 1 Hoffm. Ch. R. 150, where an assignee was held responsible for the acts of his co-assignee, he having accepted the trust and left its management to the latter.

And in Pingree v. Comstock, 18 Pick. 46, the omission to recover certain assigned property, for which the assignees were charged, was negligence, which in law amounted to a breach of trust, but which no one would think of designating as gross or aggravated.

It being shown that this assignment seeks to exonerate the trustee from the legal responsibility attached to that office ; our next inquiry is as to its effect upon the validity of the instrument. It was conceded by the learned counsel for the defendants, that creditors coming in under the assignment and claiming the benefit of its provisions, would be bound by the restrictions which it imposes. This is manifestly correct. The assignee has accepted the trust upon certain stipulated terms, and those who claim to enforce a part of those terms, must submit to the residue. He cannot be bound by those favorable to the creditors, and deprived of those favorable to himself.

The effect of the assignment, therefore, is to withdraw the debtor’s property from the reach of creditors pursuing their legal remedies, and to place it in the hands of an assignee, where it may be wasted and lost, unless he choose to exercise a much greater degree of diligence than he has undertaken to bestow upon it. The property is vested in a trustee, who by the debtor’s act, without the assent of the creditors, is exonerated from the principal legal liabilities of trustees. This is the practical operation of the assignment, as expressed upon its face, and to our minds it discloses an intent to hinder and delay creditors. Every provision in an assignment, which exempts the assignee from any liability that he would by law be subjected to as assignee, is of itself a badge of fraud. The insertion of clauses which in their operation may lead to the waste and loss of the property, declares an intention on the part of the insolvent debtor, to devote his property to some purpose other than that of the payment of his debts. The assignor is, in law, deemed to have intended all the consequences which may legitimately flow from the provisions of the assignment. We must, therefore, hold that the debtor in this case intended to place his assets in a situation where his creditors could not reach them, and where, through his own sub-agency or otherwise, they would be lost to such creditors. The intent to hinder, delay, and defraud the latter, thus becomes a necessary legal inference from the- provision under consideration.

We were referred to the assignee’s covenant to execute this trust to the best of his ability, and it was said he would be guilty of gross negligence, if he did not. That covenant does not, in our judgment, vary in any respect the liability which attaches to him by the acceptance of the assignment. It is tp be read in connexion with the next clause, which is the mutual covenant .that he shall not be accountable except for his own gross neglect; and the ability for which he contracts, is thus qualified to be the best of his ability not within the limits of gross negligence.

We were also pressed with the fact that this assignment makes no preferences, as indicating its entire freedom from fraud. This is a feature very much in its favor, and we wish we were not compelled to observe a fraudulent intent in one of its other provisions. And we may here say, in reference to the suggestion ■ of the difficulty of drawing a valid assignment and the imputed leaning of our courts of equity against sustaining this class of trusts; that the whole difficulty consists in the insertion of clauses beyond, or varying, the necessary provisions for transferring the debtor’s property and appropriating it to the payment of his debts. We have never heard of a case, nor do we believe there has ever been one decided in this state, in which an assignment has been held fraudulent, which simply vested the debtor’s estate in trustees, and directed them to convert it into money and apply it absolutely, and without reserve, to the'payment of his debts; whether equally among all the creditors, or with preferences.

'But so long as failing debtors will make assignments, containing provisions, directly or indirectly for their own benefit to the detriment of their creditors, or vesting in assignees the power of giving preferences, or excluding creditors who will not release the debtor, or exempting the assignee from his proper legal responsibility to those for whom he is to act, or otherwise deviating from the direct appropriation of the assets to the payment of debts, so far as they can be reasonably secured and applied; so long it will be the duty of the courts to pronounce such assignments fraudulent, whenever they are presented for adjudication.

The judgment at the special term must be affirmed.