did not take effect. (b) In a bargain and sale to A. in fee, to the use of B. in fee, the statute passes the estate to A., by executing the use raised by the bargain and sale; but the use to B., being a use in the second degree, is not executed by the statute, and it becomes a mere trust, and one which a court of equity will

recognize and enforce. (c) Shifting or substituted uses do * 302 not fall within this technical rule at law, for they are merely alternate uses. Thus, a deed to A. in fee, to the use of B. in fee, and if C. should pay a given sum in a given time, then to C. in fee; the statute executes the use to B., subject to the shifting use declared in favor of C. (a) Chattel interests

were also held not to be within the statute, because it referred only to persons who were seised; and a termor was held not to be technically seised, and so the statute did not apply to a term for years. (b) An assignment of a lease to A., to the use of B., was held to be void as to the use, and the estate was vested wholly in A. This strict construction at law of the statute gave a pretext to equity to interfere; and it was held in chancery, that the uses in those cases, though void at law, were good in equity; and thus uses were revived under the name of trusts. (c) A regular and enlightened system of trusts was gradually formed and established. The ancient use was abolished, with its manifold inconveniences, and a secondary use or trust introduced. Trusts have been modelled and placed on true foundations, since Lord Nottingham succeeded to the great seal; and we have the authority of Lord Mansfield for the assertion, that a rational and uniform system has been raised, and one proper to answer the exigencies of families, and other civil purposes, without any of the mischiefs which the statute of uses meant to avoid. (d)

Trusts have been made subject to the common-law canons of descent. They are deemed capable of the same limitations as

(b) Tyrrell's case, Dyer, 155. 1 And. 37. Meredith v. Jones, Cro. C. 244. Lady Whetstone v. Bury, 2 P. Wms. 146. Doe v. Passingham, 6 Barn. & Cress. 305. (c) Lord Hardwicke, in Hopkins v. Hopkins, 1 Atk. 591. Jackson v. Cary, 16 Johns. 302.

(a) Preston on Abstracts, vol. i. 307–310.

(b) Anon. Dyer, 369, a.

(c) A conveyance in trust to receive the profits, and pay them over to a third per son, was never a use within the statute, but an equitable trust at common law (d) Lord Mansfield, in Burgess v. Wheate, 1 W. Blacks. 160.

legal estates; and courtesy was let in by analogy to legal estates, though, by a strange anomaly, dower has been excluded. (e) Executed trusts are enjoyed in the same condition, and entitled to the same benefits of ownership, and are, consequently, disposable and devisable, exactly as if they were legal estates; and these rights the * cestui que trust possesses, without the *303 intervention of the trustee. Any disposition of the land

by the cestui que trust, by conveyance or devise, is binding upon the trustee. (a) In limitations of trusts, either of real or personal estates, the construction, generally speaking, is the same as in the like limitations of legal estates, though with a much greater deference to the testator's manifest intent. (b) And if the statute of uses had only the direct effect of introducing a change in the form of conveyance, it has, nevertheless, gradually given occasion to such modifications of property as were well suited to the varying wants and wishes of mankind, and affording an opportunity to the courts of equity of establishing a code of very refined and rational jurisprudence. (c)

Trusts are now what uses were before the statute, so far as they are mere fiduciary interests, distinct from the legal estate, and to be enforced only in equity.1 Lord Keeper Henley, in Burgess v. Wheate, (d) observed, that there was no difference in the principles between the modern trust and the ancient use, though there was a wide difference in the application of those principles. The difference consists in a more liberal construction of them, and, at the same time, a more guarded care against abuse. The cestui

(e) But see supra, pp. 44, 46.

(a) North v. Champernoon, 2 Ch. Cas. 78. Lord Alvanley, in Phillips v. Brydges, 3 Vesey, 127.

(b) Lord Hardwicke, in Garth v. Baldwin, 2 Vesey, 655. Saunders on Uses, 187. Phil. edit. 1830.

(c) Sugden's Int. to Gilbert on Uses contains an interesting summary of the rise and progress of uses, down to the statute of uses, and of the effect of the statute upon them. A masterly sketch is given by Lord Mansfield, in his opinion in Burgess v. Wheate; but the historical view of this subject, by Sir Wm. Blackstone, in his Commentaries (vol. ii. 328-337), is neat and comprehensive to a superior degree. (d) 1 W. Blacks. 180.

1 Ejectment cannot be maintained by the beneficiary of a resulting trust; nor can the beneficiary defend himself against such an action brought by a trustee. Moore v. Spellman, 5 Denio, 225.

que trust is seised of the freehold in the contemplation of equity. The trust is regarded as the land, and the declaration of trust is the disposition of the land. But though equity follows the law,

and applies the doctrines appertaining to legal estates *304 *to trusts, yet, in the exercise of chancery jurisdiction over

executory trusts, the court does not hold itself strictly bound by the technical rules of law, but takes a wider range and more liberal view in favor of the intention of the parties. An assignment or conveyance of an interest in trust, will carry a fee, without words of limitation, when the intent is manifest. The cestui que trust may convey his interest at his pleasure, as if he were the legal owner, without the technical forms essential to pass the legal estate. There is no particular set of words or mode of expression requisite for the purpose of raising trusts. (a) The advantages of trusts in the management, enjoyment, and security of property, for the multiplied purposes arising in the complicated concerns of life, and principally as it respects the separate estate of the wife, and the settlement of portions upon the children, and the security of creditors, are constantly felt, and they keep increasing in importance as society enlarges and becomes refined. The decisions of the courts of justice bear uniform testimony to this conclusion. (b)

A trust, in the general and enlarged sense, is a right on the part of the cestui que trust to receive the profits and to dispose of the lands in equity. But there are special trusts, for the accumu lation of profits, the sale of estates, and other dispositions of trust funds, which preclude all power of interference on the part of the cestui que trust, until the purposes of the trusts are satisfied. (c) Trusts are of two kinds, executory and executed. A trust is executory when it is to be perfected at a future period by a con

veyance or settlement, as in the case of a conveyance to *305 *B. in trust to convey to C. It is executed, either when

(a) Gibson v. Mountfort, 1 Vesey, 491. Atk. 72. Oates v. Cooke, 3 Burr. 1684. Abstracts, vol. ii. 233, 234. Saunders on

Lord Hardwicke, in Villiers v. Villiers, 2 Fisher v. Fields, 10 Johns. 495. Preston on Uses, 215, 216.

(b) Neville v. Saunders, 1 Vern. 415. Say & Seal v. Jones, 1 Eq. Cas. Abr. 383, pl. 4. Harton v. Harton, 7 Term Rep. 652. Bagshaw v. Spencer, 1 Coll. Jurid. 378.

Benson v. Leroy, 4 Johns. Ch. 651.

(c) Saunders on Uses, 186.

the legal estate passes, as in a conveyance to B. in trust, or for the use of C., or when only the equitable title passes, as in the case of a conveyance to B., to the use of C., in trust for D.1 The trust in this last case is executed in D., though he has not the legal estate. (a)

(2.) How created.

Though there be no particular form of words requisite to create a trust, if the intention be clear, yet the English statute of frauds, 29 Car. II. c. 3, secs. 7, 8, (and which is generally the adopted law through this country,) requires this declaration or creation of trusts of lands to be manifested and proved by some writing signed by the party creating the trust; and all grants or assignments of any trust or confidence are also to be in writing, and signed in like manner. (b) It is sufficient under the statute if the terms of the trust can be duly ascertained by the writing. A letter acknowledging the trust will be sufficient to establish the existence of it. A trust need not be created by writing, but it must be evidenced by writing. (c) 2

(a) Preston on Estates, vol. i. 190. Where real estate is devised to A. and his heirs in trust, to permit the wife to take the rents and profits simply, the use would be executed by the statute; but when the trustee has some duty to perform, as to permit the wife to take the net rents and profits for life, subject to a rent charge, and with remainders over, the legal estate in fee remains in the trustee. Wroth & Wife v. Greenwood, 1 Horn. & Hurlst. 389.

(b) New York Revised Statutes, vol. ii. 187, sec. 2, S. P.

(c) Lord Alvanley, 3 Vesey, 707. Leman v. Whitley, 4 Russ. 423. Fisher & Fields, 10 Johns. 495. Steere v. Steere, 5 Johns. Ch. 1. Movan v. Hays, 1 Ibid. 339. Rutledge v. Smith, 1 M'Cord Ch. 119. In North Carolina, the law on this point

1 Dennison v. Goehring, 7 Barr, 175, 177.

2 The essential requisites of a valid trust, are (1) a sufficient expression of an intention to create a trust; (2) a beneficiary who is ascertained, or capable of being ascertained. The appointment or non-appointment of a trustee of the legal estate, is not material. If the trust, cr beneficial purpose, be well declared, and if the beneficiary is a definite person or corporation capable of taking, the law itself will fasten the trust upon him who has the legal estate, whether the grantor, testator, heir, or next of kin, as the case may be. Outside of the domain of charitable uses, no definiteness of purpose will sustain a trust, if there be no ascertained beneficiary who has a right to enforce it. Saunders on Uses, 58, 389, and note. Wilmot's Opinions, 22, Shepherd's Touchstone. Lewin on Trusts, 105. 2 Story Eq. § § 964, 976. Morrice v. Bishop of Durham, 9 Vesey, 400. Dashiel v. Att'y-Gen'l, 5 Harr. & Johns. 400. Same v. same, 6 Id. 1. Sonley v. Clockmaker's Co., 1 Bro. C. C. 81. Vesey v. ameson, 1 Sim. & Stu. 69. Ellis v. Selby, 1 My. & Cr. 286. James v. Allen, 3 Meriv. 17. Garlike, 1 Russ. & My. 232. Williams v. Williams, 8 N. Y. 540.

Fowler v.

In addition to the various direct modes of creating trust estates, there are resulting trusts implied by law from the manifest intention of the parties, and the nature and justice of the case; and such trusts are expressly excepted from the operation of the statute of frauds. (d) Where an estate is purchased in the name of A., and the consideration-money is actually paid at the time by B., there is a resulting trust in favor of B., provided the payment of the money be clearly proved. The payment at the time, is indispensable to the creation of the trust; and this fact may be

established, or the resulting trust rebutted, by parol proof. (e) *306 Lord Hardwicke said, that a resulting trust, arising by

is the same as the English law was before the statute of frauds, and parol declarations of trust are valid. Foy v. Foy, 2 Hayw. 141.3 In a will, a devise to A., with a recommendation or request to provide in his discretion for B., was held not to be sufficient to raise a trust in favor of B., by reason of the discretion. Heneage v. Lord Andover, 10 Price, 230. But where the testator gave, by will, all his estate to his wife, having confidence that she would dispose of it, after her decease, according to his views communicated to her, and it being alleged that the testator, at the time of making the will, desired his wife to give the whole of his property to B., and that she promised to do it, it was held, that the allegation being proved, a trust would be created, as to the whole of the property, in favor of B. Podmore v. Gunning, 7 Simons, 644. When the words desire, request, entreat, confidence, hoping, recommending, &c., will be sufficiently imperative to create a trust, see the learned note to Lawless v. Shaw, Lloyd & Goold, 154. Coate's Appeal, 2 Barr. (Penn.) 129. The words in the fullest confidence are imperative, and create a trust. Wright v. Atkyns, 1 Turner & Russ. 143. (d) The statute of frauds, said the lord chancellor, in Lamplugh v. Lamplugh, 1 P. Wms. 111, which declares that conveyances, where trusts result by implication of law, are not within the statute, must relate to trusts and equitable interests, and cannot relate to an use which is a legal estate. The statute of frauds in Rhode Island contains no exception in favor of resulting trusts, but Mr. Justice Story considered this exception immaterial, for it has been deemed merely affirmative of the general law. 1 Sumner, 187. And most certainly trusts must arise in many cases in equity, from the manifest justice and necessity of the thing, without any statutory exception, and especially in cases of conveyances procured by fraud.

(e) Willis v. Willis, 2 Atk. 71. Bartlett v. Pickersgill, 1 Eden, 515. Boyd v. M'Lean, 1 Johns. Ch. 582. Botsford v. Burr, 2 Ibid. 405. Steere v. Steere, 5 Ibid. 1. Dorsey v. Clarke, 4 Harr. & Johns. 551. Hall v. Sprigg, 7 Martin (Louis.), 243.

3 Recent decisions in North Carolina hold the same doctrine. Sentill v. Robeson, 2 Jones Eq. (N. C.) 510. Cloninger v. Summit, 2 Ibid. 513. In Pennsylvania, mere parol declarations of trust, in the absence of other proof, are insufficient. Lloyd v. Lynch, 28 Penn. St. 419.

4 In Gilbert v. Chapin, 19 Conn. 342, a recommendation was held not to create a trust. The following principles have been laid down as to the construction of precatory words. They create a trust: 1st. When they exclude all option in the party who is to act; 2d. When the subject is certain; and, 3d. When the objects are not too vague and indefinite. Briggs v. Penny, 8 Eng. L. & Eq. 231.