"

3. In all cases, as has been held, powers or trusts must be construed according to the intention of the parties, to be gathered from the whole instrument: 1 Perry on Trusts, sec. 248; Kerr v. Verner, 66 Pa. St. 326; Guion v. Pickett, 42 Miss. 77. And when a gift in a will or deed is expressed to be for the "use and benefit" of another, or to be at the disposal of the donee, "for himself and children," or "toward his support and family,' or "to enable the donee to provide for and maintain" his children, or where the gift is expressed to be made "to the end," or "to the intent," that the donee should apply it to certain purposes, the terms thus employed have been held sufficient to fasten a trust upon the conscience of the trust donee: Hill on Trustees, *66, *67.

"Mere powers," says Mr. Perry, "are purely discretionary with the donee; he may or may not execute them, at his sole will and pleasure, and no court can compel or control his discretion, or exercise it in his stead or place, if, for any reason, he leaves the power unexecuted. If the donee executes the powers, but exesutes them in a defective manner, courts may aid the execution, and supply the defects, but they cannot exercise mere naked powers conferred upon a donee. It is different with powers coupled with a trust. In this class of cases, the power is so given that it is considered a trust for the benefit of other parties. . . . and becomes imperative. . . . . Courts will not allow a clear trust to fail for want of a trustee; nor will they allow a trust to fail by reason of any act or omission of the trustee." And, as was held in McDonald v. McDonald, 92 Ala. 542, "a court of equity will never favor a construction that confers upon a trustee absolute and uncontrollable powers": 1 Perry on Trusts, sec. 248; 2 Perry on Trusts, sec. 507, and authorities cited.

4. But while the court will not generally decide upon 365 the propriety or impropriety of a refusal of trustees to act, in cases where their powers are entirely discretionary, its failure to exercise its directing and restraining authority proceeds upon the principle that the trustees are acting in good faith, without fraud or collusion, and without selfish, corrupt, or improper motives. Lewin, in his work on Trusts, as a summation of the authorities on the subject, states the principle to be, that "there is sufficient ground for the interference of the court, wherever the exercise of the discretion by trustees is infected with fraud or misbehavior, or they decline to undertake the duty of exercising the discretion or, generally, where the discretion is mischievously or ruinously exercised, as if a trustee be authorized to

lay out money upon government, or real or personal security, and the trust fund is outstanding upon any hazardous security. But, when the course pursued by the trustees is within the letter of the power, the onus is on the person challenging their conduct to show that their discretion has been mischievously, or ruinously, or fraudulenly exercised": 2 Lewin on Trusts, *616, and authorities cited; 2 Perry on Trusts, secs. 508-511; Gossen v. Ladd, 77 Ala. 224.

5. The question just here arises as applicable to the facts of this case: Was the sale of the land, the subject of the trust, by the trustee to the East Birmingham Land Company, and taking in payment of its purchase price the stock of said company, such a violation of good faith on the part of the trustee as will authorize the court to interfere to set it aside?

Without statutory direction, or specific authority in the instrument creating the trust, or an order of court allowing it, it may be stated as a general rule that trustees are not permitted to invest trust funds in the stock or shares of any private corporation, and the rule is not varied by the fact that the stock is considered good by discreet business men who evince their confidence by investing their own funds therein: 11 Am. & Eng. Ency. of Law, 813. If there are no directions in the instrument nor rules of court, nor statutory provisions in relation to investments, they must be governed by sound discretion and good faith: Perry on Trusts, sec. 452, and authorities in note 1.

The rule, perhaps, cannot be better stated than as we 366 find it laid down by the author last cited: "In states where there are no statutes or rules of court regulating investments, trustees are bound to act in good faith and with sound discretion in investing trust money and, if they so act, they are not responsible for any loss that may happen; but to invest in mere personal securities is not a sound discretion anywhere. Nor is it sound discretion for trustees to subscribe trust funds to new enterprises, as for the stock of a new manufacturing, insurance, or railroad corporation, when the undertaking must, in the nature of things, be experimental; and it will not excuse the trustee that he subscribes his own money to such enterprises, as it is permitted to him to speculate with his own money, if he sees fit": Perry on Trusts, sec. 459. "And whatever may be the apparent advantages of such a course, and however well-intentioned the conduct of the trustee, there is no question, but that the court will visit upon him any loss resulting from such a step”: Hill on Trustees, *379.

The policy of the law of the state forbids such investments, for it is provided in the constitution itself, that "No act of the general assembly shall authorize the investment of any trust fund by executors, administrators, guardians, and other trustees in the bonds or stock of any private corporation": Const., art. 4, sec. 35.

The trustee in this case embarked the whole trust estate in the stock of a recently formed land company, organized, as is alleged, as a purely speculative venture, the risks in which were extremely hazardous, and it is averred that the certificates of stock were issued to, and the trustee took them, in his own name. He thereby imperiled it in a way that sound discretion and good faith cannot sanction. The failure and winding up of the enterprise, in the entire loss, as is alleged to all the stockholders of their capital stock, furnishes evidence of the recklessness of the hazardous risk this trustee assumed.

6. It is averred in the bill that at the time of the purchase of said lands by the East Birmingham Land Company, the company and its officers knew that said lands were held by the said Ryland Rudolph, Sr., in trust for appellant, under the deed of trust which is exhibited to the bill. It is further averred that the defendants, Webb and Tompkins who became the purchasers 867 of the land at the sale by the assignee of the company, and who are now in possession of it, bought the same at said sale well knowing that the assignee could not convey to them a fee simple title thereto; and, cognizant of the facts set forth in the bill, they took and now hold the property subject to the trusts in favor of complainant in the deed to said trustee. If these allegations are true, they are not bona fide purchasers for value without notice, and cannot claim protection as such. The land company participated and aided the trustee in the violation of his trust, and acquired no rights as against the cestui que trust; the trustee, Sumner, in the deed of general assignment by the company, acquired no greater rights than the company had, and Webb and Tompkins, the purchasers at the assignee's sale, with notice of all the facts, acquired no greater rights than had been conferred by the deed of assignment on the assignee: Code, sec. 1843; Dawson v. Ramser, 58 Ala. 573; Shorter v. Frazer, 64 Ala. 74; Stickney v. Adler, 91 Ala. 198; Sampson v. Jackson, 103 Ala. 550; Leake v. Watson, 58 Conn. 382; 18 Am. St. Rep. 270. The demurrer to the bill should have been overruled. Reversed and remanded.

TRUSTS AND POWERS.-A trust will not be allowed to fail for want of a trustee: Brandon v. Carter, 119 Mo. 572; 41 Am. St. Rep.

673, and note. Powers are to be construed in the light of the purpose which the agent or depositary is appointed to accomplish: Mayor etc. v. Reynolds, 20 Md. 1; 83 Am. Dec. 535. Courts will not interfere with the exercise of a personal or discretionary power: Gambell v. Trippe, 75 Md. 252; 32 Am. St. Rep. 388, and note. Hence, where trustees have a discretion to do or not to do a particular thing, courts of equity will not command or prohibit the exercise of the power, if the conduct of the trustees is in good faith, and not influenced by improper motives; but courts will interfere to prevent an abusive, fraudulent, collusive, illusive, or other improper exercise of a discretionary power: Read v. Patterson, 44 N. J. Eq. 211; 6 Am. St. Rep. 877, and note. When a trust is intended, it will be equally effectual whether the donor transfers the title to a trustee, or declares that he himself holds the property for the purposes of the trust: Estate of Smith, 144 Pa. St. 428; 27 Am. St. Rep. 641, and note. If a trust is expressed in the instrument creating it any act done by the trustees in contravention of the trust is void: Kirsch v. Tozier, 143 N. Y. 390; 42 Am. St. Rep. 729. A conveyance by the trustee in violation of the trust is void: Briggs v. Davis, 20 N. Y. 15; 75 Am. Dec. 363; monographic note to Gale v. Mensing, 64 Am. Dec. 199-202, on the effect of a conveyance by a trustee. A purchaser of trust property with notice of the trust takes it charged with and subject to the trust: Notes to Gale v. Mensing, 64 Am. Dec. 201; Bunting v. Ricks, 32 Am. Dec. 705. All kinds of voluntary settlements are good against the grantor and those claiming under him: See monographic note to Williamson v. Yager, 34 Am. St. Rep. 217, on voluntary trusts arising from the declaration of the trustor. If the statute permits a trustee to invest trust funds in the stock of a private corporation, he may, of course, do so, without being liable for loss. If the statute prohibits it, such an investment is a violation of good faith on his part. If the statute is silent as to investments, there is much difference of opinion as to whether an investment of such funds in the stock of a private corporation is a good one, as much depends upon the financial condition of the corporation whose stock is taken: See Morris v. Wallace, 3 Pa. St. 319; 45 Am. Dec. 642; and monographic notes to Slauter v. Favorite, 57 Am. Rep. 113; and Nyce's Estate, 40 Am. Dec. 515, showing what investments trustees may make without being liable for loss.

WIMBERLY V. WINDHAM.

[104 ALABAMA, 409.]

AGENCY-DISCHARGE OF LIEN-EXECUTION OF NOTE. Under a power of attorney authorizing the agent to carry on a general mercantile business, in a certain state, and to do all necessary acts in conducting it, as fully as the principal might do, the agent is authorized, in buying cotton within the scope of his authority, to satisfy a third person's claim to, or lien upon, the cotton bought, by giving a promissory note in the name of the principal.

NEGOTIABLE INSTRUMENTS-WHO IS MAKER AND NOT A SURETY.-A buyer of cotton who signs a note with the seller for the purpose of satisfying a third person's claim to, or lien upon, the cotton bought, is a maker of the note, and not a surety thereon, as he is directly interested in, and benefited by, such settlement.

APPEAL-CONTINUANCE-NONREVIEWABLE

ORDER.

The granting or refusal of an application for a continuance is discretionary with the trial court, and not revisable on appeal.

Action on a promissory note, in which Windham, the appellee, was plaintiff, and H. T. Wimberly and W. J. Nicholson, the appellants, were the defendants. The note had been made by the defendants to George W. Scott & Co., and assigned to the plaintiff. When the case was called for trial, the defendants moved for a continuance, on account of the absence of Nicholson, who was claimed to be a material witness for the other defendant. It was also urged that Nicholson was detained at home on account of the sickness of his wife, but no proof was offered or made of this fact. It appeared that Nicholson had not been subpoenaed as a witness for the defendant Wimberly. The motion was denied, and the defendant excepted. The defendants objected to the introduction of evidence showing that H. T. Wimberly's signature to the note was signed by M. W. Wimberly, on the ground that it was illegal, and because M. W. Wimberly was not shown to be authorized to sign the name of H. T. Wimberly to the note. They also objected to the introduction, by plaintiff, of testimony to the effect that M. W. Wimberly, as agent of H. T. Wimberly, had received cotton raised by Nicholson, upon which George W. Scott & Co., claimed a lien. These objections being overruled, the defendants excepted. They also excepted to the charge of the court, which charge was given in accordance with the principles stated in the opinion; and further excepted to the court's refusal to charge, as asked by them, that "under the written power of attorney of H. T. Wimberly, M. W. Wimberly was without authority to execute the note, the foundation of this suit." The plaintiff obtained judgment, and the defendants appealed, assigning the rulings upon the evidence, and the charges given and refused, as error.

J. C. Richardson, for the appellants.

L. M. Lane, for the appellee.

411 COLEMAN, J. The evidence shows that H. T. Wimberly was engaged in a general merchandise business, and did an advancing business to his customers. W. J. Nicholson became indebted to him, and on this indebtedness delivered a certain number of bales of cotton to M. W. Wimberly, who "managed, collected, and conducted" the business for his brother, H. T. Wimberly. W. J. Nicholson was also indebted to George W. Scott & Co., for guano, and for this indebtedness executed to them an instrument in writing, containing certain stipulations in regard to his cotton to be raised. Scott & Co., through their agent, set up a claim to, or lien upon, the cotton delivered to