The indenture between Archibald Bogle and his sons gave them no beneficial interest in the property conveyed. It was made on account of his deshe to return to Scotland; and his sons undertook, without compensation, to convert this property into cash, invest it properly as trustees, and pay over the income to him in the manner stipulated. They might reimburse themselves for their expenses, and for certain sums to be paid towards the support of a brother at the insane asylum; but were entitled to retain nothing more even at the decease of their father. He might by his will dispose of any balance that should remain in their hands.
The answer of Archibald Bogle does not set up any claim to have the trust continued during his life. It states that he has not desired, and does not desire that the said William may be discharged; but desires that he may be compelled to submit the management of the fund to the care, judgment and management of Daniel and James; and consents that the whole matter shall be disposed of by the court.
The trust created by the agreement is of a peculiar and unusual character. The fund is in substance a voluntary deposit, gratuitously received of the cestui que trust for his benefit. In the absence of authorities on the point, the court think it equitable that one who assumes a trust of this character, without compensation, may resign it whenever the further care of the property becomes inconvenient to him, and restore the fund to the owner, and is entitled to a decree discharging him from the bust.
*161In this case, as Archibald Bogle is desirous to have the property remain in the hands of the other trustees to be managed by them, the plaintiff may be discharged on delivering the funds and securities to them. A decree to that effect is to be framed under the direction of the court.
But the plaintiff is not entitled to costs. He had a right to ask the direction of the court, and to charge the expenses of the suit upon the fund, provided he had been in no fault. But he has mingled the trust fund with his own property, and in rendering his account, he admitted only a portion of what was due from him. For this reason he should not be allowed costs, and should be charged the master’s fees which were incurred in the investigation of the account.
All the objects sought in the cross bill might have been attained by proper answers and proceedings in the original bill. It was therefore unnecessary, and should be dismissed without costs to either party.