Fitzpatrick v. Fitzgerald

Metcalf, J. The St. of 1855, c. 314, § 1, cannot be applied to the deed which conveyed the locus in quo to the plaintiff That conveyance is to him, and his heirs and assigns forever, and not to him “ and his successors in any ecclesiastical office.” He therefore took an estate in fee simple. And though he holds “ in trust for the catholic community, for the purpose of a free burial ground,” yet, as he is seised and holds in fee, he can maintain an action at law for any injury to the estate. Even when the cestuis que trust are individuals named, the trustee may maintain a writ of entry, ejectment or trespass quare clausum fregit against them. Crane v. Crane, 4 Gray, 323. Roe v. Reade, 8 T. R. 122, 123. Beach v. Beach, 14 Verm. 28. Moore v. Spellman, 5 Denio, 225. Lewin on Trusts, 482. There would doubtless be an exception to this rule of law in a case in which, by the terms of the trust, or by agreement of the trustee, the cestuis que trust were entitled to actual possession of the trust estate. The answer of the defendant shows no breach of trust by the plaintiff; and if such breach were shown, it would be no defence to this action. The remedy of a cestui que trust for the trustee’s breach of trust is not by taking the trust property into his own hands and forcibly withstanding the trustee’s disposition of it. Exceptions overruled.