Page:Federal Reporter, 1st Series, Volume 2.djvu/323

 316 FEDERAL REPORTER. �or between them and his wife, could the property be dis- charged from the trusts of the will during her minority. But the will gave the executors full power aiid authority, in their discretion, to terminate the trust at her majority, and then to transfer the property to her absolutely; and what was done in March, 1866, seems to me clearly to have beeu done in anticipation of this termination of the trust in October, 1867. Of course they could not legally, and so as to absolve themselves from any liability as trustees, thus surreuder it to her before October, 1867. They recognized this in their agree- ments with her, and with her husband, and guarded against the liability by requiring of him a bond of indemnity. The stipulation in the agreement with her for a release, to be given when she came of age, shows clearly that they treated the property as being held by them on such terms that they would be at liberty to surrender it absolutely to her at her majority; and when the releases were given in March, 1868, the time had come when they could absolutely surrender the estate to her, free from the trust, and her release acknowl- edges, on her part, that they have done so. The release given by him strongly confirma the view that the purpoae of the instruments was to terminate the trusts. �The contemporaneouB agreement between the husband and wife shows also, I think, that both the husband and wife treated the trust as at an end, and they undertook to deal with each other on the basis that property belonging to her had come into bis hands. From that time, therefore, if not from an earlier time, I think he held the property as haviug been transferred to him on her account as money and other prop- erty of hers received by him, which, or its value, at her election, she could at any time in equity demand, with or without an express promise to restore; the circumstances of the transfer not being such as to imply a gift of the property to him. Nor under the will, if he is to be treated as a trustee wliilo holding the real estate, between the date of its transfer to him and the date of the release, had he any authority to invest any part of the principal of his wife's residuary legacy in improvements, or in rebuilding the house or the brick- ����