Litchfield vs. White, 7 N. Y., p. 438. Formerly no
compensation was allowed.-Green vs. Winter, 1
Johns. Ch., p. 26; Manning vs. Manning, id., p. 527;
Ormsby's Case, 1 Ball & B., p. 189. If the declara-
tion of trust specifies the amount of compensation.—
See Meacham vs. Sternes, 9 Paige, p. 398.

tary

trustee.

2275. An involuntary trustee, who becomes such Involunthrough his own fault, has none of the rights mentioned in this Article.

ARTICLE V.

TERMINATION OF THE TRUST.

SECTION 2279. Trust, how extinguished. 2280. Not revocable.

2281. Trustee's office, how vacated.

2282. Trustee, how discharged.

2283. Removal by District Court.

extin

2279. A trust is extinguished by the entire fulfill- Trust, how ment of its object, or by such object becoming impos- guished. sible or unlawful.

NOTE. So as to real trusts (Matter of Craig, 1 Barb., p. 33; Matter of De Kay, 4 Paige, p. 403), and doubtless as to personal trusts.

revocable.

2280. A trust cannot be revoked by the trustor Not
after its acceptance, actual or presumed, by the trustee
and beneficiaries, except by the consent of all the
beneficiaries, unless the declaration of trust reserves
a power of revocation to the trustor, and in that case
the power must be strictly pursued.

NOTE.-See Diefendorf vs. Spraker, 10 N. Y.,
Petre vs. Espinasse, 2 Myl. & K., p. 496.

p. 246;

2281.

The office of a trustee is vacated:

1. By his death; or,

2. By his discharge.

Trustee's office, how vacated.

2282. A trustee can be discharged from his trust Trustee,

only as follows:

1. By the extinction of the trust;

how

discharged.

Same.

Removal

by District

Court.

2. By the completion of his duties under the trust; 3. By such means as may be prescribed by the declaration of trust;

4. By the consent of the beneficiary, if he had capacity to contract;

5. By the judgment of a competent tribunal, in a direct proceeding for that purpose, that he is of unsound mind; or,

6. By the District Court.

2283.

NOTE. He cannot resign of his own mere will.Diefendorf vs. Spraker, 10 N. Y., p. 246; Cruger vs. Halliday, 11 Paige, p. 314; Shepperd vs. McEvers, 4 Johns. Ch., p. 136; Chalmers vs. Bradley, 1 Jac. & W., p. 68.

The District Court may remove any trustee who has violated or is unfit to execute the trust; or may accept the resignation of a trustee.

NOTE.-People vs. Norton, 9 N. Y., p. 176. This does not extend to executors and administrators.Emerson vs. Bowers, 14 N. Y., p. 449.

Vacant trusteeship filled by Court.

Survivorship between

co-trustees

ARTICLE VI.

SUCCESSION OR APPOINTMENT OF NEW TRUSTEES.

SECTION 2287. Vacant trusteeship filled by Court.
2288. Survivorship between co-trustees.

2289. District Court as trustee.

2287. The District Court may appoint a trustee whenever there is a vacancy, and the declaration of trust does not provide a practicable method of appoint

ment.

2288.

NOTE.-Leggett vs. Hunter, 19 N. Y., p. 459. This provision is broader than the former rule, which applied only to vacancies caused by resignation or removal.Matter of Stevenson, 3 Paige, p. 420; Matter of Van Schoonhoven, 5 id., p. 559.

On the death, renunciation, or discharge of one of several co-trustees the trust survives to the others.

NOTE. "On the death."-Lewin on Trustees, p. 299; Belmont vs. O'Brien, 12 N. Y., p. 394. "Renunciation."-Matter of Van Schoonhoven, 5 Paige, p. 559; De Peyster vs. Clendining, 8 id., 295. "Discharge."-Matter of Crossman, 20 How. Pr., p. 350.

Court as

2289. When a trust exists without any appointed District trustee, or where all the trustees renounce, die, or are trustee. discharged, the District Court of the county where the trust property, or some portion thereof is situated, must appoint another trustee, and direct the execution of the trust. The Court may, in its discretion, appoint the original number, or any less number of trustees.

NOTE.-Compare, as to personal trusts, Hawley vs.
Ross, 7 Paige, p. 103, and Banks vs. Wilkes, 3 Sandf.
Ch., p. 99.

TITLE IX.

AGENCY.

CHAPTER I. Agency in General.
II. Particular Agencies.

NOTE.-Under this head the representation of one
person by another is the only subject treated. The
rights acquired by third persons against both the prin-
cipal and the agent are here stated. The mutual rela-
tions of principal and agent are a branch of service,
and are defined in the Title on that subject. So far as
these relations create a mutual trust, they are regulated
by the Title on Trust.

CHAPTER I.

AGENCY IN GENERAL.

ARTICLE I. DEFINITION OF AGENCY.

II. AUTHORITY OF AGENTS.

III. MUTUAL OBLIGATIONS OF PRINCIPALS AND THIRD

PERSONS.

IV. OBLIGATIONS OF AGENTS TO THIRD PERSONS.

V. DELEGATION OF AGENCY.

VI. TERMINATION OF AGENCY.

Agency, what.

ARTICLE I.

DEFINITION OF AGENCY.

SECTION 2295. Agency, what.

2296. Who may appoint, and who may be an agent.

2297. Agents, general or special.

2298. Agency, actual or ostensible.
2299. Actual agency.

2300. Ostensible agency.

2295. An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.

66

NOTE.-See Bouvier L. Dict., “Agency and Agent." Agency," says Mr. Chancellor Kent, 2 Comm., p. 612, "is founded upon a contract, either express or implied, by which one of the parties confides to the other the management of some business to be transacted in his name or on his account, and by which the other assumes to do the business and to render an account of it." The authority of the agent may be created by deed or writing, or verbally, without writing; and for the ordinary purposes of business and commerce the latter is sufficient.-Commonwealth vs. Griffith, 2 Pick., p. 18; Long vs. Colburn, 11 Mass. Rep., p. 98; McComb vs. Wright, 4 John. Ch., p. 667; Turnbull vs. Trout, 1 Hall's N. Y. Rep., p. 336; Ewing vs. Tees, 1 Binney's Rep., p. 450; see, also, 2 Green. Ev., Title" Agency." So it has been held that verbal authority to an agent to make a contract relative to the sale of lands was valid. "An agent," says Mr. Dart, Vend. and Purch. of Real Estate, pp. 168-183, "either for purchase or sale of an estate may be appointed by word of mouth."-See Corporation of Ludlow vs. Charlton, 6 Mees. & W., p. 815; Cope vs. Thames Haven Company, 3 Exch., p. 341; Clinan vs. Cooke, 1 Sch. & Lef., pp. 27, 31; McWhorter vs. McMahan, 10 Paige, p. 394; Johnson vs. McGruder, 15 Miss., p. 365; see, too, Dutton vs. Warschauer, 21 Cal., p. 626, where the same reason prevails; but see Breed vs. Gray, 10 Robinson, p. 35, contra. Where, however, the agent was required to convey or complete the conveyance of real estate, or any interest in land, or where the conveyance or any act was required to be done by deed, the appointment must be in writing.-2 Kent's Comm., p. 614; Blood vs. Goodrich, 9 Wend., p. 68; Delins vs. Cawthorn, 2 Dev. N. N. Rep., p. 90; ib., p. 163; 6

Serg. & R., p. 331; see, also, Dutton vs. Warshauer,
21 Cal., p. 626. But this distinction is no longer pre-
served, and under the provisions of Sec. 1741, an agent
contracting for the sale or purchase of real estate, etc.,
must be authorized so to do in writing.-See note to
Sec. 1741, ante. The term "agent" includes a variety
of persons who are authorized to act for their principal,
with powers more or less extensive, either by express
terms or by implication. The terms agent and attor-
ney are frequently used synonymously (Pratt vs. Put-
nam, 13 Mass., p. 363), but this is not correct. The
term agent includes all classes of agents, and yet an
agent is not necessarily an attorney in fact, though an
attorney in fact is an agent. The terms are not syno-
nyms.-Porter vs. Hermann, 8 Cal., p. 619; see Dun-
lap's Paley on Agency, p. 1, and notes.

2296. Any person having capacity to contract may Who may appoint an agent, and any person may be an agent.

NOTE.-Story on Agency, Sec. 6; see Bergman vs. Howell, 3 Abb. Pr., p. 329; Phillips vs. Burr, 4 Duer, p. 113; Sto. Ag., Sec. 7; Bac. Abr., Authority, B.; Hopkins vs. Mollinieux, 4 Wend., p. 465. Persons who are disqualified from acting in their own capacity may yet act as agents for others. Thus it was held that even a slave might be an agent.-The Governor vs. Daily, 14 Ala., p. 469; Chastain vs. Bonman, 1 Hill's South Carolina Reports, p. 270. It is evident, however, that a person non compos mentis cannot be an agent, and Mr. Justice Story (Agency, Sec. 7), thinks it is by no means clear that a married woman could act as agent against the express dissent of her husband, "as such agency might involve duties and services inconsistent with those appertaining to her husband and family." And, although all persons may in general become agents, yet they cannot act as such where they have an interest adverse to their principal; therefore an agent to sell cannot make himself a purchaser.-Moore vs. Moore, 1 Selden Rep., p. 256; Banks vs. Judah, 8 Conn., p. 145. A co-partner is competent to act as agent of another firm of which his co-partner is a member.-Wilkin vs. Boyce, 3 Watts, p. 39; see Dunlap's Paley on Agency, pp. 1, 2, and notes.

2297. An agent for a particular act or transaction is called a special agent. All others are general agents.

appoint. and who may be an agent.

Agents, special.

general or

9-vol. ii.