perhaps, upon thorough consideration, would not be acted upon. But the rule would be strictly confined to a wife and child, and

in his demand? Another objection to the execution of a voluntary contract against the settlor himself, at least in respect of land, is the principle expressed by Lord Cowper, that equity, like nature, will do nothing in vain. Seeley v. Jago, 1 P. Wms. 369; Billingham v. Lawthen, 1 Ch. Cas. 243; Pulvertoft v. Pulvertoft, 18 Ves. 99; as if money be directed to be converted into land, or land into money, the devisee or legatee may elect to take the property in the original state, for should the court direct an actual conversion, the devisee or legatee might immediately annul the order by resorting to a reconversion; and so, should the court decree a specific performance of a contract regarding realty for meritorious consideration, the property the next moment might be disposed of to a bona fide purchaser, and the settlement become nugatory. Again, if the imperfect gift can be enforced against the settlor himself, then the equitable right must form a lien upon the property; and upon the death of the settlor his heir would, in all events, be bound to convey: but even in aiding the defective execution of powers and supplying surrenders of copyholds, a previous inquiry by the master is invariably directed whether the heir of the settlor has any other adequate provision."

Mahan v. Mahan, 7 B. Mon. 579; Bright v. Bright, 8 id. 194; [Ford v. Ellingwood, 3 Met. (Ky.) 359]; Dennison v. Goehring, 7 Barr, 175; Hayes v. Kershaw, 1 Sand. 258; Taylor v. James, 4 Des. 5; Caldwell v. Williams, 1 Bailey Eq. 175; Garner v. Garner, 1 Busb. Eq. 1; Jones v. Obenchain, 10 Grat. 259; Harvey v. Alexander, 1 Rand. 219; Blackley v. Holton, 5 Dana, 520; 2 Spence, Eq. Jur. 58: Pennington v. Gitting, 2 Gill & J. 208; Tolar v. Tolar, Dev. Ch. 451; Thompson v. Thompson, 2 How. (Miss.) 737; Woodson v. McClelland, 4 Mo. 495. But see Taylor v. Taylor, 2 Humph. 597; Martin v. Ramsey, 5 Humph. 349; Campbell's Estate, 7 Barr, 101; Kennedy v. Ware, 1 Barr, 445; Cressman's App. 42 Penn. St. 155; Bunn v. Winthrop, 1 Johns. Ch. 329. The above cases of McIntire v. Hughes, Mahan v. Mahan, and Bright v. Bright, are direct decisions upon the point, and fully establish the rule for the State of Kentucky, while the cases of Bunn v. Winthrop, Dennison v. Goehring, Jones v. Obenchain, and most of the other cases, presented a completely executed trust for enforcement, and the court was not called upon to decide whether a meritorious consideration alone would support an executory trust. In Hayes v. Kershaw, the settlement was for a collateral relative, and the Vice-Chancellor declined to support it, but intimated in strong language that an executory trust for a wife or child would be supported upon meritorious consideration merely. The cases are very fully commented upon by the learned editors to 1 Lead. Cas. in

the executor or collateral heirs of the donor in favor of a wife or child,

upon the ground of meritorious consideration. Ky. cases cited su

would not be extended to brothers, sisters, nephews, or parents,1 and probably not to grandchildren,2 nor to illegitimate children.3

§ 110. Marriage is a valuable consideration, therefore executory agreements, made in contemplation of marriage, will be enforced if the marriage actually takes place.1

Eq. 330-333, with a strong leaning to the opinion that voluntary executory trusts for a wife or child would be supported. The learned editors also express strong doubts whether the case of Ellis v. Nimmo, 1 Lloyd & Goold, 333, is overruled by the cases which are usually thought to overrule it; and their criticism is ingenious and acute. They do not, however, advert to the case of Moore v. Crofton, 3 Jon. & La. 442. See Cox v. Sprigg, 6 Md. 274.

1 Downing v. Townsend, Amb. 592; Buford's Heirs v. M'Kee, 1 Dana, 107; Hayes v. Kershaw, 1 Sand. Ch. 258. [Cotton v. Graham, 84 Ky. 672; Landon v. Hutton, 50 N. J. Eq. 500.]

2 Buford's Heirs v. M'Kee, 1 Dana, 107.

* Fursaker v. Robinson, Pr. Ch. 475; but see Bunn v. Winthrop, 1 Johns.

Ch. 329.

Duval v. Getting, Gill, 38; Gough v. Crane, 3 Md. Ch. 119; Crane

pra; Conover v. Brown, 49 N. J. Eq. 156, 172. See also M. E. Church v. Town, 47 N. J. Eq. 400, 406. And in several other States it seems to be established that equity will in some cases give effect to a deed of a husband directly to his wife without valuable consideration, when the only objection to it is the technical rule of law that a husband cannot convey directly to his wife. Garner v. Garner, 1 Busb. Eq. (N. C.) 1; Jones v. Obenchain, 10 Gratt. (Va.) 259; Sayers v. Wall, 26 Gratt. (Va.) 354; Sims v. Rickets, 35 Ind. 181; Stark v. Kirchgraber, 186 Mo. 633; Carter v. McNeal, 86 Ark. 150. See Keffer v. Grayson, 76 Va. 517, 523. Apart from these cases there is little, if any, real authority in the United States for the doctrine that equity will enforce against a donor or his heirs or personal representatives an exec

utory contract or a trust imperfectly created, or give effect to an incomplete gift, where the only consideration is meritorious. On the other hand there is considerable authority directly against the proposition. Matter of James, 146 N. Y. 78, 92; Whitaker v. Whitaker, 52 N. Y. 368; Matter of Wilbur v. Warren, 104 N. Y. 192, 196; Young v. Young, 80 N. Y. 422, 437. See also Phillips v. Frye, 14 Allen, 36; Henderson's Adm'r v. Henderson, 21 Mo. 379; Gwynn v. Gwynn, 11 App. D. C. 564, 574. Note to Ellison v. Ellison, 1 White & Tudor's Leading Cases in Equity (6th Am. ed.), 327.

For cases of attempted but ineffectual gifts of the donor's note, check or other promise to pay, see Sanborn v. Sanborn, 65 N. H. 172; Graves v. Safford, 41 Ill. App. 659; Pennell v. Ennis, 126 Mo. App. 355.

§ 111. A contract under seal imports a consideration, and an action at law can be maintained upon such a contract. And it has sometimes been supposed that a court of equity would enforce a contract in favor of a volunteer whenever an action of law could be sustained upon the instrument.' But equity never enforced a voluntary covenant, though under seal, to stand seized to the uses of a stranger; and it is now settled, in England, that equity will not enforce a voluntary contract, although under seal. Equity will not decree the specific performance of a contract, where a court of law would give only nominal damages. In the United States, however, considerable stress is laid upon the solemnity of a seal. The courts say that they will not execute a voluntary executory agreement unless it is under seal,3 thereby implying that an executory contract under seal will be enforced, though voluntary. And in Kentucky, where the distinction between sealed and unsealed instruments is now abolished, a voluntary executory contract not under seal has been upheld. But there is the same uncertainty whether a seal would render a voluntary executory contract binding in equity, as there is whether a mere meritorious consideration will enable the court to enforce the settlement. Generally, in America, very little regard is paid to mere formalities, and a seal is regarded in most States as a mere formality. A mere scratch

v. Gough, 4 id. 316; Hale v. Lamb, 2 Eden, 271; Stone v. Stone, L. R. 5 Ch. 74. [Ransdel v. Moore, 153 Ind. 393, 404; Whitehouse v. Whitehouse, 90 Me. 468; Gevers v. Wright's Ex'rs, 18 N. J. Eq. 330. As to the enforcement of antenuptial settlements, see infra § 122, note.]

Beard v. Nutthall, 1 Vern. 427; Williamson v. Coddrington, 1 Ves. 511; Hervey v. Audland, 14 Sim. 531; Husband v. Pollard and Randal v. Randal, 2 P. Wms. 467; Vernon v. Vernon, id. 594; Goring v. Nash, 3 Atk. 186; Stephens v. Trueman, 1 Ves. 73; Wiseman v. Roper, 1 Ch. R. 158. 2 Hale v. Lamb, 2 Eden, 294; Fursaker v. Robinson, Pr. Ch. 475; Evelyn v. Templar, 2 Bro. Ch. 148; Colman v. Sarel, 3 id. 12; Jefferys v. Jefferys, 1 Cr. & Ph. 138; Meek v. Kettlewell, 1 Hare, 464; Fletcher v. Fletcher, 4 id. 74; Newton v. Askew, 11 Beav. 145; Dillon v. Coppin, 4 M. & Cr. 647; Kekewich v. Manning, 1 De G., M. & G. 188; Dening v. Ware, 22 Beav. 184.

3 Kennedy v. Ware, 1 Barr, 445; Caldwell v. Williams, 1 Bailey, Eq. 175; Dennison v. Goehring, 7 Barr, 175; McIntire v. Hughes, 4 Bibb, 186. 4 Mahan v. Mahan, 7 B. Mon. 579.

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or scroll of the pen passes for a seal, and in some States seals are abolished altogether. Why any effect should be given to a form that has ceased to be a solemnity would be hard to explain on principle, and is equally uncertain upon the authorities.

111 a. By the construction given to the New York statutes a trust to sell land for the benefit of creditors and legatees must be absolute and imperative without discretion in the trustee; and a trust to receive rents and profits is not valid if there is no direction to apply them to the use of any person or for any period.1

1 Cooke v. Platt, 98 N. Y. 38, 39.

CHAPTER IV.

IMPLIED TRUSTS.

§ 112.

§ 113.

The manner in which trusts are implied, and the words from which they are implied.

Words from which a trust will not be implied.

§§ 114-116.

Rules by which trusts will or will not be implied.

Implied trusts from directions as to the maintenance of children or others.

When trusts for maintenance are not implied.

§§ 117-118.

§ 119.

§ 120.

Rules that govern implied trusts.

§ 121.

§ 122.

Trusts arising by implication from the provisions of a will.
Implied trusts arising from contracts.

§ 123. A direction to employ certain persons does not raise an implied

trust.

§ 112. IMPLIED trusts are those that arise when trusts are not directly or expressly declared in terms, but the courts, from the whole transaction and the words used, imply or infer that it was the intention of the parties to create a trust.1 (a) Courts seek for the intention of the parties, however informal or obscure the language may be; and if a trust can fairly be implied from the language used as the intention of the parties, the in

1 Lane v. Lane, 8 Allen, 350.

(a) In Gorrell v. Alspaugh, 120 N. C. 362, 366, Douglass, J., said: "Implied trusts are either resulting or constructive. In this State all implied trusts are generally denominated parol trusts, referring to their origin and nature of proof rather than their incidents and results. Some eminent authorities, as Lewin and Perry, make a separate division of implied trusts as dis

tinguished both from resulting and constructive trusts; but this distinction does not seem to be recognized in this State, nor, indeed, in the Statute of Frauds (29 Charles II., ch. 3, § 8), which refers to a trust arising or resulting by implication or construction of law."" See also Verzier v. Convard, 75 Conn. 1.