EastmAN, J.
The answers of the defendants being without oath, their effect is merely that of a pleading, and to simply put the complainant to the necessity of proving the facts alleged in the bill. Bartlett v. Gale, 4 Paige 503 ; Bulkley v. Van Wyck, 5 Paige 536 ; 2 Danl. Ch. Prac. 984, 985, notes.
They are not evidence in favor'of the defendants for any purpose ; and, in arriving at the facts, we are only to consider the evidence of the case as presented by .the parties, connected with the admissions, as set forth in the answers; and from these the following facts appear:
On the first day of September, 1814, Daniel and John Mar-den, for the consideration of $300, conveyed the premises described in the bill to George W. Ayers. In October, 1823, Ayers married Eunice Wilson, the mother of the complainant. On the 28th day of June, 1834, Ayers mortgaged the premises to the complainant, to secure the payment of three promissory notes, payable to the complainant, or order, on demand; one for $280, dated June 10, 1833 ; one for $350, dated January 4, 1834; and one for $73,57, dated May 1, 1834.
On the 28th day of December, 1838, the complainant gave a quitclaim deed to Ayers of the premises, for the consideration of $700, stating that they were the same that were mortgaged to him on the 28th day of June, 1834.
On the 14th day of July, 1849, Ayers, in consideration of [136]*136$800, conveyed the premises to Anne Elizabeth Tuttle, the wife of Peter H. Tuttle, and daughter of Ayers and wife, and on the 28th of August following, Anne Elizabeth Tuttle and her husband, for the same consideration, made a re-conveyance to Ayers.
There is no competent evidence to impeach any of those convey-anees, or to show that they were of a character different from what they purport to be, except the two last. As to both of those the evidence tends to show that the consideration stated was not paid. But as they leave the title to the property where it was before they were made, it is not material to go into the inquiry of their consideration.
We find, then, that on the first day of September, 1849, Ayers was the owner of the property, in which his wife had a right of dower. There are statements in the bill and answers alleging that she had advanced money towards the premises ; but as the parties are not agreed in the matter, and there is no evidence upon the point, we lay it out of the case.
On the first day of September, 1849, Ayers conveyed the premises to Rufus Kittredge, “ To have and to hold the same to him, the said Kittredge and his successors, to the following named uses, trusts and purposes, to wit: first, to the use and benefit of me, the said George W. Ayers and my wife Eunice Ayers, during our joint natural lives, and the natural life of the survivor of us; and then, second, to the use and benefit of Peter H. Tuttle and his wife Anne Elizabeth Tuttle, during the terms of their natural lives, and the natural life of the survivor of them, and then tobe conveyed to the children of the said Anne Elizabeth, then alive, or the descendants of such of them as may have deceased, in equal parts, according to the existing laws of distribution of intestate estates in New-Hampshire.” The deed contains full covenants of warranty of title to the trustee and his successors, but there is no provision for a perpetuation or transfer of the trust, by Kittredge, or any other one. The deed, however, contains this provision: “ It being understood and agreed that said Kit-tredge, or his successor in said trust, is empowered to sell or mortgage any part or the whole of said premises, if it shall in his [137]*137judgment be necessary to support me and my wife, the said Eunice Ayers.” At the time this deed was made, Ayers was not in debt except a note to the complainant for $150, which the evidence tends to show had been given for money advanced for the support of Ayers and wife. The deed is stated to be for the consideration of $800, but it does not appear that this or any other sum was paid by Kittredge.
On the 25th day of November, 1851, Kittredge^ for the consideration of one dollar, conveyed the premises to Ayers and wife for life, remainder to Anne Elizabeth Tuttle for life, and remainder to her children ; the deed containing this clause : “ I, the said Rufus Kittredge, intending simply to release my control over said premises (without in any manner interfering with’ the objects of said trust,) in declining to accept the trust intended to be imposed upon me by said deed.”
After this deed was made, and before the death of Mrs. Ayers, which took place in August, 1854, the complainant paid bills for the support of Ayers and wife to the amount of $200. Mrs. Ayers was quite feeble, and required a nurse to attend her. This money was advanced from time to time, and paid out through Joel Wilson, a cousin of the complainant, to various-individuals, for the expenses of the family. Joel Wilson took a note of Ayers, running to himself, on the 27th of November, 1852, for the money advanced up to that time, and also for the $150 note, which was then given up, and Ayers gave a mortgage of the premises to Wilson of that date, to secure this note. On the first day of June, 1854, Ayers gave Joel Wilson another note for $114, for various sums paid subsequent to the date of the former note, and also another mortgage to secure its payment. These mortgages Joel Wilson afterwards assigned to the complainant, and he now holds them.
In July, 1855, Mr. Towle was appointed by the court trustee of the property, as the successor of Kittredge, and in December, 1855, Ayers died.
There is evidence tending to show that a short time prior to the execution of the deed to Kittredge, Ayers agreed that the [138]*138note of $>150, due the complainant, should be paid bj Kittredge out of the income or avails of the trust property; but it is not shown that Kittredge was a party to the arrangement, and there is no specific provision to that effect in the deed of trust.
Such are the leading facts, as proved. The other matters stated in the bill and answer’s are unsustained by proof.
For the purposes of the decision it is not necessary or material to go back ‘of the conveyance to Kittredge, on the first day of September, 1849. On that day the title was perfect in Ayers, and the conveyance to Kittredge was valid for the objects stated, but it could not cut off existing debts. So far as they would be affected, it would be a fraud in law. This is familiar doctrine.
The complainant’s debt for $150, which existed at that time, remained a good claim against Ayers, and could have been enforced by attachment upon this estate, notwithstanding the deed to Kittredge. That debt has never been paid, and to that extent the complainant may succeed, if this is the proper proceeding by which to do it.
The deed from Kittredge to Ayers and wife, in November, 1851, was a mere nullity. The original instrument, creating the trust, gave him no power to appoint another in his stead, or to name his successor, and, without such a clause in the deed to him, the power could not be legally exercised. Bailey v. Mansel, 4 Maddock 226 ; 2 Daniel’s Ch. Frac. 1447.
Kittredge might have declined to act, and then the court, upon application, would have appointed a successor. When a trustee is dead, or declines to accept the trust, a court of equity will fill the vacancy. 2 Danl. Ch. Frac.
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EastmAN, J.
The answers of the defendants being without oath, their effect is merely that of a pleading, and to simply put the complainant to the necessity of proving the facts alleged in the bill. Bartlett v. Gale, 4 Paige 503 ; Bulkley v. Van Wyck, 5 Paige 536 ; 2 Danl. Ch. Prac. 984, 985, notes.
They are not evidence in favor'of the defendants for any purpose ; and, in arriving at the facts, we are only to consider the evidence of the case as presented by .the parties, connected with the admissions, as set forth in the answers; and from these the following facts appear:
On the first day of September, 1814, Daniel and John Mar-den, for the consideration of $300, conveyed the premises described in the bill to George W. Ayers. In October, 1823, Ayers married Eunice Wilson, the mother of the complainant. On the 28th day of June, 1834, Ayers mortgaged the premises to the complainant, to secure the payment of three promissory notes, payable to the complainant, or order, on demand; one for $280, dated June 10, 1833 ; one for $350, dated January 4, 1834; and one for $73,57, dated May 1, 1834.
On the 28th day of December, 1838, the complainant gave a quitclaim deed to Ayers of the premises, for the consideration of $700, stating that they were the same that were mortgaged to him on the 28th day of June, 1834.
On the 14th day of July, 1849, Ayers, in consideration of [136]*136$800, conveyed the premises to Anne Elizabeth Tuttle, the wife of Peter H. Tuttle, and daughter of Ayers and wife, and on the 28th of August following, Anne Elizabeth Tuttle and her husband, for the same consideration, made a re-conveyance to Ayers.
There is no competent evidence to impeach any of those convey-anees, or to show that they were of a character different from what they purport to be, except the two last. As to both of those the evidence tends to show that the consideration stated was not paid. But as they leave the title to the property where it was before they were made, it is not material to go into the inquiry of their consideration.
We find, then, that on the first day of September, 1849, Ayers was the owner of the property, in which his wife had a right of dower. There are statements in the bill and answers alleging that she had advanced money towards the premises ; but as the parties are not agreed in the matter, and there is no evidence upon the point, we lay it out of the case.
On the first day of September, 1849, Ayers conveyed the premises to Rufus Kittredge, “ To have and to hold the same to him, the said Kittredge and his successors, to the following named uses, trusts and purposes, to wit: first, to the use and benefit of me, the said George W. Ayers and my wife Eunice Ayers, during our joint natural lives, and the natural life of the survivor of us; and then, second, to the use and benefit of Peter H. Tuttle and his wife Anne Elizabeth Tuttle, during the terms of their natural lives, and the natural life of the survivor of them, and then tobe conveyed to the children of the said Anne Elizabeth, then alive, or the descendants of such of them as may have deceased, in equal parts, according to the existing laws of distribution of intestate estates in New-Hampshire.” The deed contains full covenants of warranty of title to the trustee and his successors, but there is no provision for a perpetuation or transfer of the trust, by Kittredge, or any other one. The deed, however, contains this provision: “ It being understood and agreed that said Kit-tredge, or his successor in said trust, is empowered to sell or mortgage any part or the whole of said premises, if it shall in his [137]*137judgment be necessary to support me and my wife, the said Eunice Ayers.” At the time this deed was made, Ayers was not in debt except a note to the complainant for $150, which the evidence tends to show had been given for money advanced for the support of Ayers and wife. The deed is stated to be for the consideration of $800, but it does not appear that this or any other sum was paid by Kittredge.
On the 25th day of November, 1851, Kittredge^ for the consideration of one dollar, conveyed the premises to Ayers and wife for life, remainder to Anne Elizabeth Tuttle for life, and remainder to her children ; the deed containing this clause : “ I, the said Rufus Kittredge, intending simply to release my control over said premises (without in any manner interfering with’ the objects of said trust,) in declining to accept the trust intended to be imposed upon me by said deed.”
After this deed was made, and before the death of Mrs. Ayers, which took place in August, 1854, the complainant paid bills for the support of Ayers and wife to the amount of $200. Mrs. Ayers was quite feeble, and required a nurse to attend her. This money was advanced from time to time, and paid out through Joel Wilson, a cousin of the complainant, to various-individuals, for the expenses of the family. Joel Wilson took a note of Ayers, running to himself, on the 27th of November, 1852, for the money advanced up to that time, and also for the $150 note, which was then given up, and Ayers gave a mortgage of the premises to Wilson of that date, to secure this note. On the first day of June, 1854, Ayers gave Joel Wilson another note for $114, for various sums paid subsequent to the date of the former note, and also another mortgage to secure its payment. These mortgages Joel Wilson afterwards assigned to the complainant, and he now holds them.
In July, 1855, Mr. Towle was appointed by the court trustee of the property, as the successor of Kittredge, and in December, 1855, Ayers died.
There is evidence tending to show that a short time prior to the execution of the deed to Kittredge, Ayers agreed that the [138]*138note of $>150, due the complainant, should be paid bj Kittredge out of the income or avails of the trust property; but it is not shown that Kittredge was a party to the arrangement, and there is no specific provision to that effect in the deed of trust.
Such are the leading facts, as proved. The other matters stated in the bill and answer’s are unsustained by proof.
For the purposes of the decision it is not necessary or material to go back ‘of the conveyance to Kittredge, on the first day of September, 1849. On that day the title was perfect in Ayers, and the conveyance to Kittredge was valid for the objects stated, but it could not cut off existing debts. So far as they would be affected, it would be a fraud in law. This is familiar doctrine.
The complainant’s debt for $150, which existed at that time, remained a good claim against Ayers, and could have been enforced by attachment upon this estate, notwithstanding the deed to Kittredge. That debt has never been paid, and to that extent the complainant may succeed, if this is the proper proceeding by which to do it.
The deed from Kittredge to Ayers and wife, in November, 1851, was a mere nullity. The original instrument, creating the trust, gave him no power to appoint another in his stead, or to name his successor, and, without such a clause in the deed to him, the power could not be legally exercised. Bailey v. Mansel, 4 Maddock 226 ; 2 Daniel’s Ch. Frac. 1447.
Kittredge might have declined to act, and then the court, upon application, would have appointed a successor. When a trustee is dead, or declines to accept the trust, a court of equity will fill the vacancy. 2 Danl. Ch. Frac. 1446 ; for it is a settled principle in equity that a trust shall never fail for the want of a proper trustee. 2 Story’s Com. on Eq., secs. 976, 1059 ; Co. Litt. 290, 5.
As the deed of Kittredge to Ayers and wife conveyed nothing, so the mortgages of Ayers to secure the notes to Wilson, so far as founded upon any title derived from Kittredge, would convey nothing. After the deed to Kittredge, the title was in him, as trustee, until his death; and afterwards in Towle as his successor [139]*139by the appointment of the court. Towle took the property charged with the same trusts, and having the same powers as those contained in the original deed to Kittredge. From the decease of Kittredge till the appointment of Towle, no one was authorized to convey the premises ; but the trust did not become extinct for the want of a trustee. It existed independent of the trustee. Co. Litt. 290, b.; 2 Story’s Com. on Eq., sec. 1059; McCartee v. Orphan Asylum Soc., 9 Cowen 437. And whatever was done during the vacancy in the trusteeship consistent with the trust, may be upheld.
According to the terms of the original deed to Kittredge, the property was to be held in the first place for the use and benefit of Ayers and wife during their natural lives; and Kittredge and his successors were empowered to sell or mortgage any part or the whole of the premises, if in their judgment it should be necessary, to support Ayers or his wife. During the years 1852, ’53 and ’54, the complainant furnished some two hundred dollars in aid of the support of Ayers and wife, they requesting it to be done, and standing in need of assistance. It was done, too, with the supposition that Ayers and his wife were at the time trustees of the property, by virtue of the conveyance from Kittredge to them. The object of the trust was thus being carried out by the complainant, although there was at the time no legally appointed trustee to authorize the expenditure. As, however, the advances went for the benefit of the cestui que trust, according to the intent of the original conveyance, it would seem to be but equitable that they should be a charge upon the trust property, and that the present trustee should pay the same out of the income and rents; or, if necessary, sell a part of the property, to cancel the demand ; unless Tuttle and wife, who are interested in the remainder, will pay the amount.
As to the $150, the complainant could attach the property, and thus obtain a lien upon the same, so as to maintain a bill for the removal of the trust title, and thereby secure the debt. Tappan v. Evans, 11 N. H. 311; Kittredge v. Warren, 14 N. H. 509 ; Kittredge v. Emerson, 15 N. H. 227; Stone v. Anderson, [140]*1406 Foster (26 N. H.) 506. Under the statute of 27 Elizabeth, chap. 4, Ayers might perhaps also mortgage the property, to secure a bond fide debt existing at the time of the conveyance to Kittredge. 4 Kent’s Com. 462.
But can this bill be maintained against the trustee for this amount, independent of such rights ? We think it may be. The consideration of this debt was money advanced for the assistance and support of Ayers and wife, and intended and agreed by Ayers to be paid out of the trust property. After the decease of Kittredge, the amount was included by Ayers in a note with ■other money, paid for the support of himself and wife, and the debt was thus again recognized as bond fide. No fraud appears to have been intended by Ayers in making the trust deed, and it was undoubtedly supposed by him that the trustee would have the power to pay the note. We think, therefore, that we may well enough hold that the trustee took the property charged with the payment of this debt; not as a formal, legal incumbrance upon the premises, but as a debt that could not only be enforced against them, in the manner already stated, but should be allowed in this proceeding. The direction of trust estates falls peculiarly within the jurisdiction of a court of equity, both by statute and by general equity powers, of which this court as a court of equity is possessed ; and to turn the complainant over to other and different remedies would be an injury to the estate, and to all parties interested.
Our conclusion, therefore, is, that the trustee should be ordered to pay this sum, as well as the other, and that a decree should be made in favor of the complainant, for the full amount paid by him.