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thropic, and public welfare purposes. It would usually be ultra vires, that is, beyond the powers of a municipal corpora tion, to act as a trustee for particular private individuals.

§ 380. Banks and Trust Companies as Trustees

Trust companies are corporations organized for the express purpose of acting as trustees. Any national bank may qualify and is then authorized to take and administer trusts to the same extent as a trust company. The advantages of having trusts under corporate management of this kind are great. The whole subject is of so much importance that Part V of this work is devoted solely to this subject.

§ 381. Unincorporated Associations as Trustees

At common law unincorporated associations cannot be trustees for a charitable purpose. It has been held in New York and Virginia that this rule holds in those states. Elsewhere the English statute that modified the common law is followed and an unincorporated association can take a charitable trust.

§ 382. Capacity for Trusteeship

There was once a question as to the capacity of married women to act as trustees, but the restrictions against married women have been so generally removed throughout the United States tha hey may be considered as no less qualified than married men.

A minor may be an agent and as an agent can act, but should not be named as a trustee. If a minor were appointed, the estate would pass to him and the court would compel him or his guardian to execute the trust or would remove him and appoint someone competent to act.

An alien living in this country could take the personal property as a trustee to the same extent that a citizen could.

He may take real estate if the state allows an alien to take a legal title. If the alien were domiciled abroad, he would not be within the jurisdiction of any of our courts, and that would probably disqualify him from acting.

A court would not usually appoint a resident of another state a trustee, but the creator of a trust could do so. It might in some cases make it difficult for the beneficiary to enforce his rights.

A lunatic or an habitual drunkard may be appointed trustee, but cannot execute any trust that requires the exercise of discretion. The court may remove such a trustee or the trust may be administered by his guardian. Where a lunatic is made a trustee or a trustee becomes insane, (1) the trust may be administered by his guardian, or (2) it may be administered by the court, or (3) he may be removed and a sane person appointed in his stead.1

Bankruptcy would not necessarily incapacitate a person for acting as trustee. His creditors would have no claim, and his bankruptcy would not affect his obligation as trustee. Insolvency, though, may be good ground in some cases for removal.

Beneficiaries should not be appointed trustees, as their duties and interests might conflict. Near relatives and persons closely connected should not be selected, as there might be the same conflict of interests. There is no positive law against such appointments, and sometimes they are made.

§383. Who May Be a Beneficiary

Generally, any person or persons who can take a legal title to property can also take an equitable interest and may be the beneficiary of a trust estate.

An alien may be the beneficiary where the trust property is personalty. Technically, objection might be made in some

Perry on Trusts, § 58.

jurisdictions to an alien being the cestui que trust of an estate in land.

Any one of the states or the United States might be a cestui que trust. There is no legal rule to prevent. A city or any other corporate public agency could be the beneficiary of a trust. Where, however, private corporations cannot legally hold lands, they cannot evade the law by being made cestuis que trust of land. Otherwise, corporations generally may be the beneficiaries of trust estates of all kinds.

Corporations can be the beneficiaries of trusts of personal property to the same extent as natural persons.

Voluntary associations, societies, clubs, etc., may be cestuis que trust of trusts of personal property. But though such societies cannot take the legal title to real property, they can at common law enjoy as beneficiaries a trust in real estate.

Charitable associations and corporations, if in a locality where they are not able to take the legal title to land, may nevertheless take the fruits of trusts of both realty and personalty. Such trusts are good even when the property is left in general terms, as, "for the use and benefit of the poor people of Clermont County." In such cases, even if the immediate objects of the trust should fail, equity would select others of the same general class. A bequest for the benefit of "the poor saints" of a locality was held to be too vague to be possible of fulfilment, though the court added that if the testator "had made it plain whom he thought were saints, the Court would enforce the trust."

REVIEW QUESTIONS

1. Who may make a trust? What limitations are there on an insolvent person?

2. When may a corporation create a trust?

3. Would a trust by a minor be good? Would a trust by a lunatic be held good? Can an alien create a trust?

4. What requisites should an individual trustee have?

If a person

or corporation appointed trustee was not capable of acting as such, what would be done? What rules would govern the court in making such an appointment?

5. What governmental corporations may be trustees? Could any such corporation be trustee for an individual?

6. Can corporations be trustees? What corporations can act as trustees? What might prevent a corporation acting as trustee? 7. What corporations are specially qualified to act as trustees? 8. Can an unincorporated association undertake a charitable trust in your state?

9. Can a married woman act as trustee? Can a minor? Can an alien? Can a resident of another state? What can be done if a lunatic is appointed as trustee? Would insolvency incapacitate a trustee? Can a beneficiary under a trust be one of the trustees?

10. Who can be a cestui que trust? Where aliens or corporations cannot hold land, can they evade the law by having a trustee hold it? May a Greek letter society be a cestui que trust of a piece of land?

CHAPTER XLIII

TRUSTEES

§ 384. Appointment of Trustees

Trustees are appointed by various means. Some of these are as follows:

1. By deed or declaration of trust.

2. By will, in which case they are called "testamentary

trustees."

3. By agreement.

4. By the court.

5. By implication of law.

6. By self-perpetuating boards.

7. By the exercise of the power of appointment.

When a voluntary trust is created by deed or declaration of trust, the creator names the trustees in the instrument. The creator should know beforehand that the proposed trustees will accept. The same or greater caution should be exercised in naming a trustee in a will, because in case the trustee declines the appointment, the testator cannot appoint another.

In appointing trustees as a business arrangement, the same care should be used as in naming directors for a new corporation-men must be chosen who are interested and who have some knowledge and skill in the conduct of the particular busi

ness.

A man may make himself a trustee by declaration of trust made or published, or by delivery of the income from the estate which he holds as intended trustee, to the beneficiary in pursuance of the trust.

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