Ham v. Ham A. , 58 N.H. 70 ( 1877 )

The plaintiff, and the defendant Francis, held the bank shares in trust for the devisees. The special duty of managing and investing a fund did not relate to their general duty as executors in settling the estate, and their powers and duties relating to such fund were those of trustees. Healey v. Toppan, 45 N.H. 243; Leavitt v. Wooster,14 N.H. 550; Gregg v. Currier, 36 N.H. 200. Trustees have not the general power of disposition of trust property which executors have in the settlement of estates, but are limited to the purposes of the trust; and one of several trustees cannot, without the authority of his co-trustee, though an executor may, dispose of, bind, or pledge the trust property (Crewe v. Dicken, 4 Ves., Jr., 97; Sinclair v. Jackson, 8 Cow. 544; Ridgeley v. Johnson, 11 Barb. 527; 2 Bouv. Law Dic. 617); and a purchaser of trust property, having notice of the trust, takes it charged with all the burdens of the trust. The title of the Trust and Guarantee Company to the nine shares of bank stock fails, because Francis alone had no authority to pledge it; and, by finding the certificate of the shares in the name of "The estate of Supply Ham," and Francis's signature as "Executor," the company were chargeable with notice of the trust. Shaw v. Spencer,100 Mass. 382.

A reconveyance of the bank stock is decreed, or, the Trust and Guarantee Company, at their option, may retain it, paying the income to Elizabeth Ham for life, and at her death, if the debt is not paid, retain Francis's interest in the fund.

DOE, C. J., did not sit.