public charitable institution. Stratton v. Medical Society, 149 Mass. 505. $127. Instances showing the nature of the cy pres doctrine. Slevin v. Hepburn [1891]. 2 Ch. 236; Mormon Church v. United States, 136 U. S. 1; Cary v. Bliss, 151 Mass. 364, 374. $133. Booth v. Baptist Church, 126 N. Y. 215; People v. Simonson, 126 N. Y. 299; Tilden v. Green, 130 N. Y. 29. "No gift, grant, bequest or devise to religious, educational, charitable, or benevolent uses, which shall in other respects be valid under the laws of this State, shall or be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same. If in the instrument creating such a gift, grant, bequest, or devise there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised, or bequeathed for such purposes shall vest in such trustee. If no person be named as trustee then the title to such lands or property shall vest in the Supreme Court," etc. N. Y. Laws, 1893, Ch. 701. A bequest for the erection and maintenance of a free public library in a large city is a charitable bequest and therefore not subject to the rules against perpetuities. Crerar v. Williams, 34 N. E. R. (Ill.) 467. Cases to which the doctrine does not extend that the rule as to perpetuities does not apply to trusts for charities. In re Bowen [1893], 2 Ch. 491. § 137. But see In re Arbib [1891], 1 Ch. 601, 613. § 138. It seems that to exonerate a trustee it is not sufficient to show that he acted in good faith. O'Connor v. Gifford, 117 N. Y. 275, 281; Learoyd v. Whitely, L. R., 12 Appeal Cases, 727, 731. § 139. Sheffield v. Parker, 158 Mass. 330, 333. But see People v. Faulkner, 107 N. Y. 477, 489. § 141. A trustee in the investment of trust funds should refrain from speculation, and it does not follow because prudent men sometimes take the hazard of adventures which they deem hopeful, trustees may do the same; the preservation of the fund and the procurement of a just income therefrom, are primary objects of the creation of the trust itself, and are to be primarily regarded. King v. Talbot, 40 N. Y. 86; Learoyd v. Whitely, L. R. 12 Appeal Cases, 727, 733. In the light of experience various kinds of investments have come to be regarded by intelligent and prudent men as unsuitable for trust funds. The courts have simply given expression to this general sentiment. Second mortgages are considered as unsuitable, as they subject the trust estate to the possible necessity of raising funds to pay off the first mortgage. So are bonds and stocks of new corporations where the success of the business has not become established. So are loans upon personal credit. Mallocks v. Moulton, 84 Me. 545; Matter of Myers, 131 N. Y. 409, 415. The general rule is that a trustee should invest the trust funds in government securities or in loans for which real estate is pledged as security. It seems in this State, trustees should invest in United States or New York State securities, in mortgages on real estate, to the extent of about one half the value of the land mortgaged, and in loans to certain trust companies. Ackerman v. Emott, 4 Barb. 626; King v. Talbot, 40 N. Y. 86, 97; Adair v. Brimmer, 74 N. Y. 550. Also they can invest "in bonds or stocks of any of the cities of this State issued pursuant to the authority of § 142. 135 N. Y. 124, 133. § 144. It appears still to be the rule in England that trustees cannot charge for their services, and there is no implied right of remuneration from the mere fact that they executed the trusts which they were appointed to perform. There is usually a provision in the will for their benefit. In re Thorley [1891], 2 Ch. 613. As to compensation in New York, see Laws 1893, Ch. 686, p. 1707. Double commissions to the same persons, first in the character of executors, and then in that of trustees, are to be awarded only when the will contemplates a several and separable action in each capacity, not at the same but different stages of the administration, and they are not to be allowed where the will makes no such separation, but blends the two duties and commingles them without a severance. To the ordinary duties of an executor may be added the performance of a trust in such a manner that the two functions run on together. It is the duty of an executor as such to pay to a legatee the amount of a legacy in the manner and at the time provided by the testator, and it does not change that duty that the payment of the principal is postponed, and the income made payable annually in the meantime. The trust duty may thus be imposed upon an executor which thereby becomes and is made a function of his office. A will must go further than that to admit of double commissions, and must clearly and definitely indicate an intention of the testator to end the executor's duty at some point of time and require him thereupon to constitute and set up one or more several trusts, to be held and managed as such for the interest of the beneficiary. McAlpine v. Potter, 126 N. Y. 285; Cliff v. Day, 124 N. Y. 125; Phenix v. Livingston, 101 N. Y. 551; but see Pitney v. Emerson, 42 N. J. Eq. 361. § 145. The duty and powers of a trustee cannot be delegated by him to others. Woodrow v. Weed, 154 Pa. 307, 314, 315. § 146. The mere fact that one of two or more executors or trustees is passive, and does not interfere with the act of his coexecutors in taking possession of the property and collecting moneys of the estate, will not charge him with liability for waste by them unless he has some reason to apprehend that such may be the consequence of their taking it and making such collections. Bruen v. Gillet, 115 N. Y. 10; Cocks v. Haviland, 124 N. Y. 426. But where one executor or trustee receives the funds of the estate, and either delivers them over to his associate or does any act by which the funds come under the sole possession and control of the latter, and but for which he would not have received them, the executor or trustee is liable for the loss which is sustained in consequence of such action. Bruen v. Gillet, supra.; but see In re Osborne, 87 Cal. 114, One joint executor or administrator is not liable for the assets which come into the hands of the other, nor for laches, waste, devastavit or mismanagement of his co-executor or administrator, unless he consents to or joins in an act resulting in loss to the estate, in which event he will become liable. Co-executors or co-administrators may act either separately or in conjunction. They are jointly responsible for CO joint acts and each is separately responsible for his separate acts and defaults. Naulz v. Oakley, 120 N. Y. 84; Earle v. Earle, 93 N. Y. 104; 21 S. W. Rep. 333. § 147. Removal of trustees. 26 At. Rep. 996, 998. Bill for instructions. 153 Mass. 249. § 148. Rule when trustee can be charged with interest. Price v. Holman, 135 N. Y. 124, 133. § 150. A mortgage is in form a convey ance, vesting in the mortgagee a conditional estate which becomes absolute on the non-performance of the condition. Originally at law it carried the rights and incidents of ownership; although at an early day equity gave to the mortgagor, even after breach of condition, a right to recover the property from forfeiture, upon payment of the debt or obligation secured, within a prescribed period. The ancient law as to the character of the instrument still prevails in some of the States, but in a majority of them this has been changed from a consideration of the object of the instrument and the intention of the parties, and it is there regarded as a mere lien upon or pledge of the property for the payment of the debt or the performance of the obligation stated. Whatever character may be ascribed to it from its form, it has always been treated by courts of equity as intended for security and is enforced by them solely to give effect to that intention. Scott v. Neely, 140 U. S. 106; Cook v. Bartholomew, 60 Conn. 24. 8153. Wallace v. Johnson, 129 U. S. 58; Manchester R. Co. v. N. C. W. Co., L. R. 13 Appeal Cases, 554, 568; Barry v. H. B. F. Co. 110 N. Y. 1. § 158. Taylor v. Russell [1891], 1 Ch. 8. § 159. Robinson v. Williams, 22 N. Y. 380; Ackerman v. Hunsicker, 85 N. Y. 43; 43; Hyman v. Hauf, 138 N. Y. 48. § 160. Purdy v. Huntingdon, 42 N. Y. 334. § 162. An equitable assignment has been defined to be such an assignment as gives the assignee a title which, although not cognizable at law, equity will recognize and protect. Such an assignment passes an immediate equitable interest in the creation of the interest that it should the subject, although it is not essential to be immediately enforceable by suit for specific performance to recover the interest assigned. Whether in a given case the transaction amounts to an equitable assignment depends to a great extent upon the intention. Holmes v. Evans, 129 N. Y. 140; Pomeroy's Equity, §§ 1273, 1277, 1278, 1280. § 165. Kribbs v. Alford, 120 N. Y. 519; Kneeland v. Central Trust Co., 138 U: S. 68; compare Talby v. Official Receiver, L. R., 13 Appeal Cases, with Borden v. Croak, 131 Ill. 68. See also Pomeroy's Rep. 111; 132 N. Y. 59. Eq., & 1291; 26 Atlantic R. 501; 55 N.W: § 166. An assignment by a sheriff of such fees as he may become entitled to receive from the State or county for public services thereafter to be rendered is void. B. N. Bank v. Wilson, 122 N. Y. 478. The unearned half pay of a retired officer of the army is not assignable when he is still subject to military orders. Schwenck v. Wyckoff, 46 N. J. Eq. 560. § 167. It seems by the weight of authority that there can be an assignment of part of a fund in equity where the assignment is for value, distinctly appropriates a part of the fund or debt, and makes the sum assigned specifically payable out of it. James v. Newton, 142 Mass. 366, 375; Peugh v. Porter, 112 U. S. 737; Risley v. Phenix Bank, 83 N. Y. 318, 329; Whittemore v. J. L. S. O. Co., 124 N. Y. 565. An order to pay a particular sum out of special fund cannot be treated as an equitable assignment pro tanto unless accompanied with such a relinquishment of control over the fund designated that the fund-holder can safely pay it, and be compelled to do so though forbidden by the drawer. A general deposit in a bank is so much money to the depositor's credit; it is a debt to him, by the bank, payable on demand to his order, not property capable of identification and specific appropriation. A check upon the bank in the usual form, not accepted or certified by its cashier to be good, does not constitute the transfer of any money to the credit of the holder; it is simply an order which may be countermanded and payment forbidden by the drawer at any time before it is actually cashed. It creates no lien on the money, which the holder can enforce against the bank. It does not of itself operate as an equitable assignment. Florence Mining Co. v. Brown, 124 U. S. 385, 390. But if the attendant circumstances show that it was the intention and understanding of the parties that a part of a particular fund or deposit should be transferred, the courts will hold that there is an assignment of part of the fund or deposit, notwithstanding a draft or check is given at the same time. Brill v. Tuttle, 81 N. Y. 454; Risley v. Phenix Bank, 83 N. Y. 318; Throop v. Smith, 110 N. Y. 83, 90; 154 Pa. 183; Langan v. Co., 50 N. J. Eq. 201. § 168. Fairbanks v. Sargeant, 104 N. Y. 168; 48 N. J. Eq. 246. § 171. The doctrine that an assignee takes subject to any latent equity in favor of any third person is recognized in Owen v. Evans, 134 N. Y. 514, 519. § 172. If the assignee of the chose in action is unable to assert in a court of law the legal right of the assignor which in equity is vested in him, then the jurisdiction of a court of chancery may be invoked, because it is the proper forum for the enforcement of equitable interests, and because there is no adequate remedy at law; but when, on the other hand, the equitable title is not involved in the litigation, and the remedy is sought merely for the purpose of enforcing the legal right of his assignor, there is no ground for an appeal to equity, because by an action at law in the name of his assignor, the disputed right may be perfectly vindicated, and the wrong done by the denial of it fully redressed. Hayward v. Andrews, 106 U. S. 672, 675; Hayes v. Hayes, 45 N. J. Eq. 461, 465, affirmed 47 N. J. Eq. 567. In New York there is a provision that "every action must be prosecuted in the name of the real party in interest,” and accordingly the assignee can sue in his own name. C. C. P., § 449; Sheridan v. Mayor, 68 N. Y. 30. § 177. C. C. P. 1917, 1918; 136 N. Y. 10; 48 N. J. Eq. 418; 123 Ind. 41. 179. Frequently when a contract is entered into, a provision is incorporated that in case there is a breach of the contract, the party breaking the contract shall pay a certain sum by way of damages. Such a provision is held by the courts to be valid, provided that it is "liquidated damages," and not a penalty. The fact that the parties have used the term "penalty" or "liquidated damages" does not control the courts when they construe the contract. They consider the subject-matter and nature of the agree ment. If it shall appear that the damage and loss which may be presumed to result from the non-performance are uncertain and incapable of exact ascertainment, then the payment or liability fixed by the parties must be deemed to be liquidated damages and recoverable as such. Where, however, a sum has been stipulated as a payment by the defaulting party, which is disproportionate to the presumable or probable damage, or to a readily ascertainable loss, the courts will treat it as a penalty and will relieve, on the principle that the precise sum was not of the essence of the agreement, but was in the nature of a security for performance. Ward v. H. R. B. Co., 125 N. Y. 230; Bignall v. Gould, 119 U. S. 495; Chaude v. Shepard, 122 N. Y. 397; 147 Pa. 416; 148 Pa. 645. § 180. U. S. M. Co. v. Sperry, 138 U.S. 313, 348; 87 N. Y. 400; 11 Montana, 53. § 181. Equity always leans against for feiture and only decrees in their favor when there is full, clear and strict proof of a legal right thereto. Henderson v. C. C. C. Co., 140 U. S. 25, 33; Traders' In. Co. v. Race, 142 Ill. 338, 346. $187. While it is a general rule that a mere mistake of law, stripped of all other circumstances, constitutes no ground for relief in equity, yet there are many exceptions recognized by the courts. Griswold v. Hazard, 141 U. S. 260, 284. A mutual mistake, clearly established, as to the legal effect of an instrument will be ground for relief according to some authorities. Griswold v. Hazard, supra. In dealings between trustee and cestui que trust, the cestui que trust must not only be acquainted with the facts, but apprised of the law, how these facts would be dealt with by a court of equity. Adair v. Brim mer, 74 N. Y. 539. As to ratification of contracts made by an infant, Hinely v. Margaritz, 3 Pa. St. 428; Morse v. Wheeler, 4 Allen, 570. Can one recover back money paid through a pure mistake of law, having knowledge of all the facts? A voluntary payment made under a mistake of law, but with full knowledge of the facts, and not induced by any fraud or improper conduct on the part of the payee, cannot be recalled. 112 N. Y. 216, 221; Vanderbeck v. City of Rochester, 122 N. Y. 285; Tripler v. Mayor, 125 N. Y. 617; Redmond v. Mayor, 125 N. Y. 632. For a contrary doctrine, see Mansfield v. Lynch, 59 Conn. 320. A court may order its own officer to refund money paid to him through mistake of law [1891], 2 Ch. 154. § 190. A creditor who had taken out an insurance policy on the life of his debtor for $6,000, entered into an arrangement with the insurance company, whereby he surrendered his policy and received in place thereof a paid up policy for $2,500. At the time this new agreement was entered into, the debtor had been dead for several days, but this was not known to either creditor or the insurer. The court held that the creditor was entitled to relief in equity on the ground of mutual mistake of fact. Riegel v. Insurance Co., 140 Pa. St. 193; 153 Pa. 134. It is well settled that money paid under a material mistake of fact may be recovered back, although there was negligence upon the part of the person making the payment. 63 N. Y. 457; 91 Ky. 560. mutual mistake as used in equity means a mistake common to all the parties to a contract or instrument, and it sometimes relates to a mistake concerning the terms or legal effect of a contract or instrument. Page v. Higgins, 150 Mass, 27, 31; Gris The phrase |