must be brought in the name of the trustee. There is, however, this exception, the cestui que trust may maintain a real action upon his equitable title against a stranger who shows no title, or no title under the trustee. But the trustee may successfully defend the legal title against a suit at common law by the cestui que trust unless the trust has ceased, or the trustee is enjoined by a court of equity.3 And so the grantee of the trustee can defend such action, even though the grant may be a breach of trust. At one time the common-law courts attempted to punish trustees for a breach of trust in damages, as upon an implied contract, but the exercise of such an authority was soon abandoned. And the rule of confining the administration of trusts to the courts of equity has been carried so far that the Court of King's Bench may issue prohibitions, forbidding spiritual courts from intermeddling with a trust. But a bill in equity cannot be maintained simply to establish the fact of a trust, no other relief being sought, even where its existence is denied; if, however, the supposed trustee is about to leave the jurisdiction, so that no relief could be obtained, the court will entertain the bill, 1 Davis v. Charles River R. Co., 11 Cush. 506; Raymond v. Holden, 2 Cush. 268; Chapin v. Universalist Soc., 8 Gray, 581; Crane v. Crane, 4 Gray, 323; Fitzpatrick v. Fitzgerald, 13 Gray, 400; Baptist Soc. v. Hazen, 100 Mass. 322; Mordecai v. Parker, 3 Dev. 425; Cox v. Walker, 26 Maine, 504; Matthews v. Ward, 10 G. & J. 443; Beach v. Beach, 14 Vt. 28; Wright v. Douglass, 3 Barb. 559; Moore v. Burnet, 11 Ohio, 334; Hopkins v. Ward, 6 Munf. 38; Daggett v. Hart, 5 Fla. 215; Goodtitle v. Jones, 7 T. R. 47. 2 Stearns v. Palmer, 10 Met. 35; Queen v. Abrahams, 4 Q. B. 157 ; Roper v. Holland, 3 Ad. & El. 99; Sloper v. Cottrell, 2 Jur. N. s. 1046. 8 Obert v. Bordine, 1 Spencer, 394; Nicoll v. Walworth, 4 Denio, 385; Stearns v. Palmer, 10 Met. 35. 4 Stearns v. Palmer, 10 Met. 35; Canoy v. Troutman, 7 Ired. 155; Taylor v. King, 6 Munf. 358; Reece v. Allen, 5 Gilm. 241. Megod's Case, Godb. 64; Jevon v. Bush, 1 Vern. 344; Smith v. Jameson, 5 T. R. 603, 1 Eq. Cas. Ab. 384, D. A. • Barnadiston v. Soame, 7 St. Trials, 443; Sturt v. Mellish, 2 Atk. 612; Holland's Case, Styl. 41; Allen v. Imlett, Holt, 14; Burnett v. Preston, 17 Ind. 291. 7 Petit . Smith, 1 P. Wms. 7; Edwards v. Freeman, 2 P. Wms. 441; Barker v. May, 4 M. & R. 386; Ex parte Jenkins, 1 B. & C. 655. and declare the trust if proved, and retain the bill for further action. In Pennsylvania, ejectment is an equitable action, and may be maintained by the cestui que trust, even against the trustee, when the former is entitled to the possession.2 § 18. Trusts are divided into simple and special trusts. A simple trust is a simple conveyance of property to one upon trust for another, without further specifications or directions. In such case the law regulates the trust, and the cestui que trust has the right of possession and of disposing of the property, and he may call upon the trustee to execute such conveyances of the legal estate as are necessary. A special trust is where special and particular duties are pointed out to be performed by the trustee. In such cases he is not a mere passive agent, but he has active duties to perform, as when an estate is given to a person to sell, and from the proceeds to pay the debts of the settlor. § 19. Trusts have been further divided into ministerial and discretionary trusts. A trust to do a simple act, as to convey to the cestui que trust, at his request, is a ministerial trust, as it is a mere ministerial or instrumental act requiring the exercise of no judgment or discretion; but if a choice of time, manner, or place is given to the trustee, or if he must use his best judgment in the execution of the trust, it is a discretionary trust. Mr. Fearne contends that a trust to sell is a ministerial trust, for the price is not arbitrary, nor at the trustee's discretion, but is to be the best that can be obtained; but Mr. Lewin insists that it is a discretionary trust, as there is much room for judgment in the proceeding, and it 1 Baylies v. Payson, 5 Allen, 473; Price v. Minot, 107 Mass. 62. 2 Kennedy v. Fury, 1 Dall. 76; Presbyterian Cong. v. Johnston, 1 W. & S. 56; School, &c. v. Dunkleberger, 6 Barr, 29. 8 Att. Gen. v. Gleg, 1 Atk. 356; Cole v. Wade, 16 Ves. 27; Gower v. Mainwaring, 2 Ves. 87; Hibbard v. Lamb, Amb. 309; Potter v. Chap man, Amb. 98; Att. Gen. v. Scott, 1 Ves. 413, 4 Kent, Com. 304, 305. 4 Fearne's P. W. 313. Lewin on Trusts, 19; King v. Bellord, 1 Hem. & Mil. 343; Robson may be added that there is room for skill in procuring the best possible price. But the distinction is not very important, as the duties of a trustee for sale are the same, whether the trust is called ministerial or discretionary. § 20. There is a mixed trust and power, as where the settlor sketches the outline of a trust and leaves the details to be settled and carried into effect, according to the best judgment of his trustees. The power joined to the trust in such case is imperative and must be exercised; but the mode of its execution is a matter of judgment and discretionary. But this kind of trust and power is not to be confounded with a trust to which a power is annexed. In this case the trust is complete in itself, and the power is a simple addition, which may or may not be exercised, as the trustee shall choose, as where lands are given to trustees for a particular purpose, and a power of sale, or of changing the securities, is added; the power is no part of the trust, but it is something collateral, which the court cannot compel the trustee to perform. But a trust to distribute the trust fund according to the discretion of the trustee is an imperative trust and power.1 § 21. Trusts are also said to be legal or illegal. Trusts are legal when they are for some honest purpose, as to pay debts or make a provision for families. They are illegal when they are for purposes of immorality, or vice, or of defrauding creditors, or contravene some statute, or are contrary to public policy. In such case a court of equity will not give its aid in carrying them into execution.2 (a) v. Flight, 5 N. R. 344; 4 De G., J. & S. 608; Clarke v. Royal Panopticon, 4 Drew. 29. 1 Cole v. Wade, 16 Ves. 43; Gower v. Mainwaring, 2 Ves. 89; Steere v. Steere, 5 John. Ch. 1. 2 Bacon on Uses, 9; Lewis v. Nelson, 14 N. J. Eq. 94. (a) Thus, a bill in equity for an account cannot be maintained by a partner against his co-partners as to transactions with inhabitants of the seceding States during the Civil War. Snell v. Dwight, 120 Mass. 9; Dunham v. Presby, id. 285. The combinations or 66 trusts" § 22. Again, trusts are either public or private. Private trusts concern only individuals or families, for private convenience and support. Public trusts are for public charities or for the general public good. They concern the general and indefinite public. § 23. Private trusts which concern individuals are limited in their duration. Being for individuals, they must be certain, and the individual or individuals must be identified within a limited period. They can endure only for a life or lives in 1 It is immaterial whether the designated lives are those of the beneficiaries or others. Crooke v. King's County, 97 N. Y. 421. that have sprung up in recent years, for the purpose of controlling prices by uniting all those engaged in any great industry, are in strictness illegal as amounting to monopolies. See e. g., People v. Chicago Gas Trust Co., 130 Ill. 268; More v. Bennett, 140 Ill. 69; Bishop v. American Preservers' Co., 157 Ill. 284; People v. North River Sugar Ref. Co., 121 N. Y. 582; Bath Gas Light Co. v. Claffy, 151 N. Y. 24, 43; State v. Standard Oil Co., 49 Ohio St. 137; United States v. Addyston Co., 78 F. R. 712; 24 Am. Law Rev. 143; 29 id. 293; 33 id. 63, 142; 30 Am. Law Reg. N. S. 751; 7 Harv. L. Rev. 338; 11 id. 80. The holder of certificates of such a trust," which bind him to the terms of its formation, so far participates in its illegality that he cannot maintain a bill in equity against its trustees for an accounting. Unckles v. Colgate, 148 N. Y. 529. But forfeiture of a corporate charter for this cause can be enforced only by the State. Coquard v. National Linseed Oil Co., 171 Ill. 480; Blindell v. Hagan, 54 F. R. 40; Greer v. Stoller, 77 id. 1. The Act of Congress of July 2, 1890, ch. 647 (26 Stat. at Large, 209), known as " The Sherman AntiTrust Act," and entitled "An Act to protect trade and commerce against unlawful restraints and monopolies," has been held by the United States Supreme Court not to apply to a combination of corporations whose primary business is that of manufacturing rather than of selling, such a combination being regarded as within the police power of the States, and not as infringing upon interstate commerce. United States v. E. C Knight Co., 156 U. S. 1; s. c. 60 F. R. 306, 934; Lowenstein v. Evans, 69 F. R. 908. The act is constitutional, United States v. Joint Traffic Ass'n, 171 U. S. 505; and applies to all contracts in restraint of interstate commerce, irrespective of their reasonableness. United States v. Trans-Missouri Freight Ass'n, 162 U. S. 290. The remedy of a private citizen injured by a violation of this statute is by action at law for damages, and not by a bill in equity. Southern Indiana Express Co. v. U. S. Express Co., 88 F. R. 659. being, and twenty-one years and the period of gestation in addition. On the other hand, public trusts or charities, existing for the general and indefinite public, may continue for an indefinite period. It must be kept in mind, however, that this rule against perpetuities only applies to cases in which the power of alienation is suspended, and that the creation of a trust does not necessarily result in such suspension, for the trustee may have the right to alienate,3 and that the terms of the law are not everywhere the same. For example, in New York the ownership of personal property cannot be suspended for more than two lives, while the alienation of real estate may be suspended for two lives and a minority.4 § 24. Trusts are divided in reference to their creation into express trusts, implied trusts, resulting trusts, and constructive trusts.5 Express trusts are also called direct trusts. They are generally created by instruments that point out directly and expressly the property, persons, and purposes of the trust; hence they are called direct or express trusts in contradistinction from those trusts that are implied, presumed, or construed by law to arise out of the transactions of parties. They may be discretionary or imperative, absolute or on condition. As express trusts are directly declared by the parties, there can never be a controversy whether they exist or not. In such trusts these questions arise: Are they legal or illegal, and what is the construction of the various terms and provisions which they contain? § 25. Implied trusts are trusts that the courts imply from the words of an instrument, where no express trust is de 1 Rice v. Barrett, 102 N. Y. 161. 2 Christ's Hospital v. Grainger, 1 Mac. & G. 460; Att. Gen. v. Aspinall, 2 M. & Cr. 622; Att. Gen. v. Heelis, 2 S. & S. 76; Att. Gen. v. Shrewsbury, 6 Beav. 220; Walker v. Richardson, 2 M. & W. 892. See Att. Gen. v. Forster, 10 Ves. 344; Att. Gen. v. Newcombe, 14 Ves. 1; Fearon v. Webb, 14 Ves. 19. 3 Robert v. Corning, 89 N. Y. 225. ✦ Cook v. Lowry, 29 Hun, 28. See the definitions in Russell v. Peyton, 4 Brad. (Ill.) 473. Little v. Wilcox, 119 Penn. St. 439. VOL. I. - 2 17 |