The opinion of the court was delivered by
Redfield, J.This is ejectment for certain lands, which originally formed a portion of the right granted to the first settled minister in the town of Pownal. It would seem, from the proceedings of the town in relation to this right, that as early as the year 1789 they distinctly, by vote, recognized the right of Elder Benjamin Gardner to this land in fee, and received from him a deed of gift to the selectmen of the town, and their successors in office, of the right for the “ use and support of a gospel minister or ministers” in the town. This deed is expressed to be for the benefit of “ the town forever,” to be “ in trust,” &c., and expressly refers to a vote of the town in regard to the same subject. By reference to the vote of the town, it appears the avails of the rents were to be divided among the several societies in town according to the legal voters attending or inclining to each respectively. So that the cestui que trusts and the trustees are virtually the same, or if not in fact the same, they are the same in law. For the trustees are, in law, the town, the cestui que trusts are the inhabitants, that is, the legal voters in the town.
By looking into the proceedings of the town subsequently, in re*414gard to this land, it seems that, in the year 1797, the selectmen, Benjamin Gardner being one of them, called a special meeting, to see if the town would agree to sell the minister’s right, &c. The town voted to sell under the supervision of a committee of five, of which Benjamin Gardner was one, and directed the selectmen to deed, which they did. Since that time the land has been holden adversely to the claims of all, and without any objection .on the part of any one. This action of ejectment is brought in the name of the town to recover the land in violation of their contract.
In order for the plaintiffs to recover we must hold the -entire proceedings of the town, in regard to the sale, absolutely void for all purposes. There are various reasons why we are not prepared to do this.
1. The trustee, in the case of real estate, has always the legal estate, so that he may sustain ejectment for the same, even against his cestui que trust. Beach v. Beach, 14 Vt. 28.
2. Having the legal estate, the trustee can convey it to any one he sees fit. In such cases the trustee may convey as follows:
1. If his cestui que trust is sui juris, he may make a legal conveyance by his consent; — if he is not sui juris, then the trustee may do it without such consent; for, says Mr. Justice Story, “ it is frequently necessary to his interests that the trustees should possess the power to exchange the land for money, and vice versa, and in such case the acts of the trustee seem to be justifiable.” “ 2 Fonbl. Eq. b. 2, ch. 7, § 1, note (a).” 2 Story’s Eq. § 978, p. 242.
2. The trustee may make the conveyance in violation of the trust, and in such case, if the person to whom he conveys is ignorant of the trust, the entire title passes to him ; but if not, he takes the land incumbered with the trust, and may be held to account as trustee. But in such case he can only be called to account in a court of equity, and that by the cestui que trust, and not by the original trustee. 2 Story’s Eq. § 976, p. 240. Co. Litt. 113 a. 1 Thomas’ Coke 397, Butler’s note. But in sucli case the bill must be filed within some reasonable time. Shaver v. Radley, 4 Johns. 310.
3. The trustee may convey with the consent of the cestui que trust and th e founder of the trust, or charity, in all cases. This is of the very nature of all trusts, or charities, and, indeed, of all contracts, that the scheme may be modified by the consent of all con*415cerned. And it must also follow that this assent may be either express, or implied. This implication may result either from circumstances or from lapse of time, or from both.
1. In the present .case w.e have the express assent of the founder of the charity, and of the cestui que trusts, in the agency they had in bringing about the change of the land into money.
2. We have ample ground of presuming such consent from lapse of time. A modification of the scheme of a charity, in so unimportant a particular as the form of the investment,'ought always to be presumed, when it was possible, and has long been acquiesced in. If the modification goes to the very foundation and object of the charity, it ought not, perhaps, to be presumed, unless upon the strongest ground, and then only upon such grounds as existed during the life of the founder; but one so unimportant as the present, and one so necessary to the security of all concerned, ought to be presumed after the lapse of lime, even if there were nothing else upon which to rest the presumption. 2 Story’s Eq. 736, and note and cases cited. Kane v. Bloodgood, 7 Johns. Ch. 90.
In every view of the case, both in law and equity, there is no ground of maintaining any suit whatever against the defendants. We have been induced to go thus, at length, into this claim, in consideration of the importance of the question and the labor bestowed upon it at the bar, both in preparation and argument, and the necessity that the question should be decided at some time. And this we have done, notwithstanding it is obvious that this action of ejectment might have been disposed of in a more summary way. If the cestui que trust ever had, or could have had, any remedy against this defendant, which it is clear they could not under the circumstances of this case, it must have been in equity, and not at law. Judgment affirmed'.