Oklahoma. See Hogan v. Leeper (1913) 37 Okla. 655, 47 L.R.A. (N.S.) 475, 133 Pac. 190.

Pennsylvania.- Bristor v. Tasker (1890) 135 Pa. 110, 20 Am. St. Rep. 853, 19 Atl. 853, 851.

England.-Toker v. Toker (1863) 3 De G. J. & S. 487, 46 Eng. Reprint, 724, affirming (1862) 31 Beav. 629, 54 Eng. Reprint, 1283.

Canada. Fonseca v. Jones (1910) 14 West. L. R. 148.

So, it has been said on the question of independent advice: "While purely voluntary settlements have been set aside where the settlor or donor did not have independent legal advice, yet we think it will be found that in all such cases the beneficiary stood in some fiduciary capacity to the donor, or the trustee or person inducing the settlement was benefited thereby." Riddle v. Cutter (1878) 49 Iowa, 547. It has also been held that though a person may have the right to revoke a trust, he may lose that right by laches and acts of acquiescence. Fonseca v. Jones (Can.) supra, wherein it was said: "That the right to set aside a deed of settlement which would otherwise be held void may be lost by laches and delay is shown by Turner v. Collins (1871) L. R. 7 Ch. (Eng.) 329. In that case a voluntary deed of gift was made by a son to his father. The son left his father's house five years after the deed, but did not attack it for seven years later. The court held that had he applied earlier he must have succeeded, but that he had lost his right by laches, and the deed was altered only by striking out a power of appointment which the father had offered to release. .

In the case at bar it seems to me that the plaintiff has, by her laches, and by acts of acquiescence and confirmation of the most unequivocal kind, deprived 38 A.L.R.-62.

herself of the right now to object to the deed in so far as it was possible for her to do so."

Where cancelation is sought it has been declared that, if all the parties in interest are not before the court, equity has no power to terminate a trust. Gray v. Union Trust Co. (1915) 171 Cal. 637, 154 Pac. 306, wherein it was said: "It is only when all the parties in interest are before a court, when each is sui generis, and all join in the application, that a court of equity ever terminates a valid trust. And even when all these circumstances exist, equity does not do so by force of the application, but only when a decree so doing is meet and proper. When such circumstances exist, power is in the court of equity to terminate the trust, but with that power is not necessarily imposed the duty so to do. It is still discretionary.

The converse of this proposition follows as a matter of course. If all of the parties in interest are not before the court, equity has no power to terminate the trust." In that case, wherein it appeared that a deed of trust containing no power of revocation created a life estate in the grantor, with remainders vested in his heirs, it was held that equity had no power to terminate the trust where the trustor and trustee were the only parties before the court.

b. Fraud or undue influence.

of the present annotation because the suit was by trustees under a deed of trust to have an earlier deed of trust set aside, is nevertheless of value on account of the principle involved. The court said: "The principal complaint in the petition is that a clause in the agreement of May 23, 1916, making defendants Bishop and American Trust Company trustees, reserving to said Henry B. Graham the right of revoking said trust and terminating it upon the payment of his debts and the restoring his property to him, was omitted through the incompetency, mistake, or accident of Graham, or fraud of the defendant Bishop, who drew up said agreement as the attorney of said Graham. The evidence shows that if said Graham desired any such clause of revocation in said agreement of May 23, 1916, or a clause restoring said property to him, it was principally for the purpose of enabling him to provide more abundantly than he otherwise could for Mrs. Snowden as his future wife. Mrs. Snowden then was a married woman, living with her husband in St. Louis. Graham had for some time visited her almost daily, and was engaged to marry her when he should be divorced from his wife, who was then living in adultery with another man in New York city, and Mrs. Snowden should be divorced from her husband, with whom she was then living in the house where Graham visited her. In fact, the appellants claim in their brief that such was the purpose of said Graham in desiring to have the revocation and return clause inserted in the deed of trust now assailed. Appellants' learned counsel say in their brief: 'Despite the numerous sharp conflicts, certain facts stand out clearly in the record. Mr. Graham was intending to get a divorce and to marry Mrs. Snowden. He was heavily in debt, and had the idea that the very existence of his estate was threatened by a pending foreclosure of collateral then in the hands of W. M. Bixby. It was clearly his intention to dispose of his property so that his wife would not be able to assert a claim against it, and that the collateral in Bixby's hands should be pro

tected, and to have the conveyance in such shape that he could modify it to provide for Mrs. Snowden as soon as he was married to her. This was his

general purpose.' We are asked, therefore, to exert the powers of a court of equity to set aside an agreement which said Graham made, because by fraud and mistake it omitted certain clauses which he desired inserted to enable him to carry out an illegal agreement with Mrs. Snowden, to marry and provide for her when both he and she were divorced. It is true that he deserted Mrs. Snowden and eloped with and married her sister, as soon as he and Mrs. Snowden were divorced, and seeks now to have said deed of trust to defendants set aside, not for Mrs. Snowden's benefit, but for her sister's. But the clauses he desired to have inserted in, but which were omitted from, said agreement, being designed to carry out a wholly unlawful contract, he could not have been heard to complain of their omission at the time the agreement was made, and the fact that they would be used for a lawful purpose now (if such were the fact), had they been so inserted, would not purge the plaintiffs' case of its original vice and immorality. He who comes into a court of equity for relief must come with clean hands."

2. Cases illustrative of when trust will be set aside.

In Bailey v. Finlayson (1889) 25 Fla. 153, 6 So. 157, it appeared that an intended wife on the day of her marriage conveyed all her property to her intended husband as trustee, to hold the same under his control and management for her and their use during her lifetime. At her death, it was to descend to any child or children she might have surviving her, and in case of her decease without leaving issue, then to her mother for the term of her natural life, and at her decease to go to her brothers and sisters. The settlor died the day after she gave birth to a son, and, the son subse quently dying a minor, the brothers and sisters brought suit against the husband under the trust deed. The

court held that the evidence adduced seemed conclusive that the settlor made the deed of trust against her will and under the constraint of her mother's influence, and that it could not be doubted that if, on this evidence, she, after her marriage, had sought to set aside the deed of trust, the court would not have hesitated to grant a decree for that purpose.

In Kellett v. Sumner (1903) 15 Haw. 76, the question involved was whether a voluntary settlement was revocable under the circumstances of the case. It appeared that the grantor was an aged man and weak-minded, and that he executed the deed in question pending an appeal from an order putting him under guardianship as an insane person, and that much pressure was brought to bear on him to procure its execution. The court held the deed to be revocable, saying: "Under circumstances like these, courts hold that trusts of this nature may be revoked. It is unnecessary to say how far the case should be classed under any one head of equity jurisdiction-such as mistake, fraud, or undue influence. It looks very much as if it presented a compound of these and perhaps other ingredients, though, perhaps, not all in equal parts."

In Schaper v. Schaper (1877) 84 Ill. 603, it appeared that the plaintiff had joined with her husband in the execution of a deed of trust by which she had relinquished her homestead and dower rights. The bill was brought by her against her husband, Herman, his mother, Caroline, and his brother, Christian, to set aside the deed of trust on the ground that it was procured by imposition and fraud, and also to cancel certain other instruments executed in connection therewith. The principal facts showing grounds for cancelation appear in the following extract from the opinion: "Complainant is a German woman, and when the acknowledgment was taken she was unable to speak or comprehend the English language. The justice of the peace taking the acknowledgment was unable to speak or understand German. The only medium of conversation was Herman and Caro

line. Whether they communicated to her what the justice requested them truly or not, he does not and could not know. They say they did; she says they did not. She says she did not know what a deed was. She signed because Herman told her to, and thought it was a note. We re

gard it as an unfavorable circumstance that in this transaction some disinterested person was not called in who understood and spoke both languages, especially as complainant's husband, who ought to have been her friend and protector, was, in reality, her enemy. Another very strong circumstance tending to show that complainant's version is true, and that she was designedly deceived in signing the deed of trust, is this: Herman, Christian, Caroline, and complainant went together to Carlinville, which is distant from where they were residing some 8 miles. When they arrived at Carlinville, complainant was left at the house of her uncle, but the others went to the office of an attorney at law who understood and spoke both English and German, and had him prepare the deed from Caroline and Christian to Herman, the deed of trust, and chattel mortgage, mortgage, and promissory notes, and the deed of Caroline and Christian was signed, though not acknowledged, there. Why were Caroline and Christian there, and why was complainant not there? Her being left at her uncle's is not shown to have been a necessity, and it does not appear that the object of the others in going to Carlinville was other than to have these instruments drawn. Complainant was not even informed of what had been done at the attorney's office. It would seem evident that Caroline felt that it was necessary to be there herself, and have Christian there, in order that the papers should be drawn to meet her views, and it is difficult to resist the conclusion that complainant was not there, nor informed of their purpose to be there, by design. On the whole, we are satisfied with the conclusion reached by the court below, so far as the cancelation of the instruments is concerned."

In Migely v. Migely (1911) 162 III. App. 300, it appeared that the following memorandum of trust was executed: "I hereby voluntarily leave in trust with Rudolph E. Migely all my money, property and estate, which consists of a note signed by my brothers and sisters, on which there is a balance yet due me of not exceeding $3,500. I direct that said Rudolph E. Migely shall in no event pay me or be obligated to pay me all or any part of said money or property, prior to and until September 27, 1912. I direct that I shall not be permitted or empowered to encumber in any way said money or property during this period of trust, and it is stipulated that any encumbrance or hypothecation thereof until September 27, 1912, shall be absolutely void. The reason this trust is made is because I have heretofore been negligent and reckless in the management of my property and money, and have dissipated and squandered the greater part of it through drink and riotous living, and this trust is made, therefore, for my benefit, at my request, and in my interest, and at my solicitation, so as to put the remaining small part of my estate in such a place that I myself cannot, through any act of mine, impair it or the income thereof, until said September 27, 1912. The consideration for this trust is that said Rudolph E. Migely will faithfully hold said money and property and keep it invested at a reasonable rate of interest, not exceeding 5 per cent per annum, and shall, on September 27, 1912, at Merchants' Loan & Trust Company, Chicago, Illinois, turn over and deliver to me all said property and money, with interest accrued thereon, less his reasonable costs, expenses, and fees; and the further consideration is the foregoing premises and the consequent benefits to me and my property." This trust was accepted by the trustee. Later the settlor filed a bill of complaint against the makers of the note, alleging that on the date of the trust agreement the trustee and another, acting for the makers of the note, had represented to him that the makers were unable to pay the note at maturity and would be unable for

"In

some time, and that it was necessary that he should extend the time of the payment, making the instrument as above set forth part of the bill. The bill then alleged that during the negotiations recited in the execution of the instrument, the settlor was represented by counsel, whom he supposed to be working in his interest, and that he paid but little attention to the details of the instrument, and procured no copy of it at that time; that he has since learned that counsel purporting to represent him in reality represented and worked for the interest of the trustee and another. The bill further alleged that the agreement was void and without consideration; that it was procured from the settlor by fraud and misrepresentation, and that it ought to be surrendered and canceled in order that he might collect the money on his note. The trustee demurred to the bill, and the court entered a decree thereon, taking it as confessed, finding the facts substantially as set out in the bill, and granting the relief prayed for. On appeal by the trustee, the court said: our opinion the bill shows facts entitling the complainant to equitable relief. The facts as stated in the bill were admitted by the demurrer and must be treated on this appeal as having been admitted to be true. The instrument described in the bill was a mere volunteer placing of the note in the hands of the defendant without consideration, and it was revocable. We think under the averments of the bill the execution of the trust agreement under which the note was placed in the hands of the defendant, Rudolph E. Migely, was procured by fraud and deception, and that the complainant makes out in his bill a clear case of being overreached and fraudulently induced to place his property in the hands of the defendant; that the legal advice which he relied upon in the matter of the execution of said instrument seems to have been given rather in the interest of the defendant than in the interest of the complainant. The decree ordered the note delivered to the complainant, and declared the trust instrument null and void, and