the actual receipt of rents and profits under the equitable title as equivalent to seizin at law, and an adverse perception of the rents aud profits as amounting to an ouster.1 Moreover, if such adverse enjoyment of the equitable estate continues for twenty years, it would, by analogy to the statutes of limitations applicable to legal titles, bar any assertion by the cestui qui trust of his right in equity.2 CHAPTER II. EXPRESS TRUSTS; AND HEREIN OF VOLUNTARY DISPOSITIONS IN TRUST, OF PRECATORY TRUSTS, AND OF POWERS IN TRUST. 63. Trusts created by direct fiduciary 69. Meritorious Consideration; Ellis v. expressions; trusts averrable at Common Law. 64. Statute of Frauds. Nimmo. 70. Donatio mortis causa. 71. 65. Language by which a Trust may be 72. created. Trusts created by Precatory Words. Doctrine on this subject in England; in the United States generally; in Pennsylvania and Connecticut. What precatory words will create a trust. Such words prima facie imperative. 75. 68. Voluntary Assignments for the benefit of Creditors. Certainty of the object is an element for consideration. 76. Certainty of the Subject. 77. Powers in Trust; Salusbury v. Denton. 63. EXPRESS trusts, being those which are created by the language of the parties, may, it is obvious, arise either by direct fiduciary expressions whereby the relationship of trustee and cestui qui trust is distinctly established, or by expressions of a more uncertain and equivocal character which might not in the opinion of a layman be considered as indicating an intention to create a trust, but which have been construed by a series of judicial decisions to be effective in so doing. Before, however, considering the question as to what language 1 Lewin on Trusts, 466 (4th Eng. ed.); 2 Story's Eq., 975. Story's Eq., 975. is necessary to create a trust, it will be proper to premise that at common law, trusts both of real and personal property could be created by parol. A trust of realty, like a use, was in technical language " averrable," that is, it could be created by word of mouth. The better opinion is, however, that this is only true of those cases in which the legal estate could be created by feoffment, where (of course) no writing was necessary. But when a deed was requisite for the conveyance of the legal estate (as in a covenant to stand seized to uses), there uses and trusts were not averrable, but could be created only in the same manner as legal estates.2 In Connecticut, it has been held that trusts were not averrable at common law;3 but the weight of American authority is decidedly the other way.* 64. The statute of frauds (29 Car. II., c. 3) changed the rule in regard to real estate; and enacted (in the 7th section) that "all declarations or creations of trusts, or confidences of any lands, tenements, or hereditaments, shall be manifested and proved by some writing signed by the party who is by law. enabled to declare such trust, or by his last will in writing; or else they shall be utterly void and of none effect." An assignment of a trust of realty must also be in writing.5 This statute applies to chattels real as well as to freehold estates; though not to mere personal rights concerning land, such as mortgages and charges.7 It is to be observed that the statute does not require trusts of realty to be created, but only to be manifested and proved by writing. The distinction is of practical importance, because a subsequent written acknowledgment of a trust will cause the interest to relate back to the date of its original creation, so as to bring it (for example) within the operation of a will of the 1 Lewin on Trusts, 56; Perry on Trusts, 75; Fordyce v. Willis, 3 Bro. C. C. 587. 2 Gilbert on Uses, 270. 3 Dean v. Dean, 6 Conn. 285. 4 Fleming v. Donahoe, 5 Ohio, 257; Miller v. Thatcher, 9 Texas, 482; Osterman v. Baldwin, 6 Wal. 116; Shelton v. Shelton, 5 Jones (Eq.) 292; Murphy v. Hubert, 7 Barr, 420; Anding v. Davis, 9 5 See 29 Car. II., 22 7, 8, 9. 6 Skett v. Whitmore, Freem. 280; Riddle v. Emerson, 1 Vern. 108; and see Hutchins v. Lee, 1 Atk. 447; Bellasis v. Compton, 2 Vern. 294. 7 Benbow v. Townsend, 1 M. & K. 506; Bellasis v. Compton, 2 Vern. 294. See Perry on Trusts, 86. cestui qui trust executed before the written acknowledgment, but after the verbal creation.1 This statute has been re-enacted in most of the United States; in some of which, however, the language of the statute has been somewhat varied. Thus in Maine, trusts must be "created and declared in writing." In Illinois, "declarations or creations of trusts must be manifested and proved" in writing.3 The statutes of Vermont and Massachusetts are similar. It is considered, however, by a learned writer, that this variation of language does not produce any substantial difference in the effect of the statutes, but that under all of them it will be sufficient if the trust is proved by some writing, although executed after its creation.* Personal chattels are not within the statute of frauds; and trusts of them may be proved by parol." Implied trusts are expressly excepted from the operation of the statutes in most of the States. The statute of frauds will be satisfied by any writing, no matter how informal. Thus a mere letter or memorandum will be enough. The writing, however, must declare with sufficient certainty what the trust is." An answer in chancery admitting the trust will be sufficient to take it out of the statute; but the better opinion seems to be that this will not be the rule if the defendant chooses to insist upon the benefit of the statute. If the answer denies the agree 1 Ambrose v. Ambrose, 1 P. Wms. 322; See also Foster v. Hale, 3 Ves. Jr. 696, and Sims v. Howard, 4 Nevada, 483. 2 Rev. Stats. (1857) ch. 73, % 11, p. 450. See Gerry v. Stimson, 60 Maine, 188. 3 Rev. Code of 1860, 2213. 4 Perry on Trusts, 81; and see Bragg v. Paulk, 42 Maine, 502, and Sims v. Howard, 4 Nevada, 482. 5 McFadden v. Jenkyns, 1 Hare, 461; 1 Ph. 157; Benbow v. Townsend, 1 M. & K. 506; Hawkins v. Gardner, 2 Sm. & Giff. 451; Kimball v. Morton, 1 Halst. Ch. 31; Higgenbottom v. Peyton, Rich Eq. 398; Kirkpatrick v. Davidson, 2 Kelly, 297; Day v. Roth, 18 N. Y. 448; Hooper v. Holmes, 3 Stock. (Ch.) 122; Barkley v. Lane, 6 Bush (Ky.) 587. 6 Dale v. Hamilton, 2 Phillips, 266; Foster v. Hale, 3 Ves. Jr. 696; 5 Ves. Jr. 308; Raybold v. Raybold, 8 Harris (Pa.), 308; Maccubbin v. Cromwell, 7 Gill & J. 154. See Reid v. Reid, 12 Rich. Eq. 213. 7 Steere v. Steere, 5 J. C. R. 1; Smith v. Mathews, 3 D. F. & J. 139; Cook v. Barr, 44 New York, 161. 8 Maccubbin v. Cromwell, 7 G. & J. 164; Cozine v. Graham, 2 Paige (Ch.) 177; Nab v. Nab, 10 Mod. 404, per Lord Chancellor Parker. 9 Dean v. Dean, 1 Stock. (Ch.) 425; Whitney v. Gould, 2 Wis. 552; Perry on Trusts, 2 85. ment upon which the trust is based, it need not expressly set up the statute, in other words, take the defence that the agreement was in parol.1 A trust may be created by will; but to be valid, the will must be duly executed. A writing which purports to be a testamentary paper, if not properly executed to take effect as a will, cannot be relied upon as a memorandum to satisfy the statute.2 65. Having premised thus much concerning the instrument which is needed in order to create a valid trust, we must now consider what language should be used in order that a trust may be created. "Three things," it has been said,3" must concur to raise a trust, sufficient words to create it, a definite subject, and a certain or ascertained object;" and to these requisites may be added another, viz., that the terms of the trust should be sufficiently declared.* The precision with which it is necessary to define the subjectmatter, and the object of the trust, will be noticed when we come to consider powers in trust, and that class of expressions which are known as precatory words. Putting these aside for the present, it may be said, that there must in general be sufficient words to create a trust; but that no particular form of expression is necessary. It will be enough if there be a complete intention, expressed with sufficient clearness. The intention must be a complete one. A mere inchoate and executory design is not enough, and unless there is some distinct equity (as fraud, for example), it cannot be enforced. The intention must be plainly manifested and not derived from loose and equivocal expressions of parties made at different times and upon different occasions. But any words which indicate, 1 Wolfe v. Corby, 30 Maryl. 360; Ontario Bank v. Root, 3 Paige (Ch.) 478; Billingslea v. Ward, 33 Maryl. 51; Allen v. Chambers, 4 Ired. Eq. 125. 2 Perry on Trusts, & 89 to 294; Lewin on Trusts, 66, 47 (4 Eng. ed ). 3 By Sir William Grant, in Cruwys v. Coleman, 9 Vesey, Jr. 323. See also Knight v. Boughton, 11 Cl. & Fin. 513; and Malim v. Keighley, 2 Vesey, Jr. 335. Knight v. Boughton, 11 Clark & Fin. 5 Bayley v. Boulcott, 4 Russ. 345; Harrison v. McMennomy, 2 Edw. Ch. 251. See also Kilpin v. Kilpin, 1 M. & K. 520. 6 Donahoe v. Conrahy, 2 Jon. & Lat. 694. 7 Slocum v. Marshall, 2 Wash. C. C. 398; Steere v. Steere, 5 Johns. C. R. 1; Mercer v. Stark, 1 Sm. & Marsh. (Ch.) 479; Harris v. Barnett, 3 Grat. 339; Barkley v. Lane, 6 Bush (Ky.) 587. with sufficient certainty, a purpose to create a trust, will be effective in so doing.1 It is not necessary that the terms "trust" and "trustee" should be used; any other words which show that the donee was not intended to take beneficially, will affect his conscience with a trust.3 The declaration of trust may be contained in a different instrument from that by which the estate is vested in the trustee;" but the instruments must be contemporaneous, or, at all events, in contemplation at the same time; and if an absolute conveyance is made, no subsequent declaration can deprive the grantee of his beneficial interest.5 As to the quantity of the estate which the cestui qui trust is to take, it is only necessary that the intention upon the subject should be clearly expressed; and it is not necessary that the technical words required in the limitation of legal estates should be used. Thus an equitable fee may be created without the use of the word "heirs ;" and a fee tail without the use of "heirs of the body," provided always that the intention to give a fee sufficiently appears. Where a trust is created by a devise by which Fisher v. Fields, 10 J. R. 495; Carpenter v. Cushman, 105 Mass. 419; Norman v. Burnett, 25 Miss. 183; Porter v. The Bank of Rutland, 19 Verm. 410; Brown v. Combs, Dutch. 36. 2 See Lewin, p. 180, note z. Though their absence is a circumstance to be attended to; King v. Denison, 1 V. & B. 273. See also Porter v. Bank of Rutland, 19 Verm. 410; Fisher v. Fields, 10 J. R. 495; Gordon v. Green, 10 Georgia, 534; Norman v. Burnett, 25 Miss. 183. On the other hand, the words "trust" and "trustee" will not necessarily create a trust. Brown v. Combs, 5 Dutch. 36. See also Seldon's Appeal, 31 Conn. 548; Eldridge v. The See Yup. Co., 17 Cal. 44; Att. Gen. v Merrimac Manufac. Co., 14 Gray, 612; Richardson v. Inglesby, 13 Rich. Eq. 59. 3 Crockett v. Crockett, 1 Hare, 451; Bibby Thompson, 32 Beav. 646; Jubber v. Jubber, 9 Sim. 503; Raikes v. Ward, 1 Hare, 445; Inderwick v. Inderwick, 13 Sim. 652; Aynesworth v. Haldeman, 2 Duvall, 571; Day v. Roth. 18 N. Y. 453. 4 Inchiquin v. French, 1 Cox, 1; Wood v. Cox, 2 M. & Cr. 684; Stubbs v. Sargon, 2 Keen 255; Smith v. Attersoll, 1 Russ. 266. 5 Adlington v. Cann. 3 Atk. 145; Crabb v. Crabb, 1 M. & K. 511; Kilpin v. Kilpin, Id. 520, 532. See also Briggs v. Penny, 3 MacN. & G. 546; Johnson v. Ball, 5 De G. & S. 85; Dawson v. Dawson, 1 Chev. (2d Part) 148; Johnson v. Clarkson, 3 Rich. Eq. 305; Wallgrave v. Tebbs, 2 K. & J. 313; Tee v. Ferris, 2 K. & J. 357; Russell v. Jackson, 10 Hare, 204; Lomax v. Ripley, 3 Sm. & Giff. 48; Brown v. Brown, 12 Maryl. 87. 6 Shep. Touch., by Preston, 106; Lewin on Trusts, 140; Fisher v. Fields, 10 Johnson, 505. |