1 clared, but such words are used that the court infers or implies that it was the purpose or intention of the parties to create a trust. § 26. Resulting trusts are trusts that the courts presume to arise out of the transactions of parties, as if one man pays. the purchase-money for an estate, and the deed is taken in the name of another. Courts presume that a trust is intended for the person who pays the money. § 27. A constructive trust is one that arises when a person, clothed with some fiduciary character, by fraud or otherwise gains some advantage to himself. Courts construe this to be an advantage for the cestui que trust or a constructive trust. CHAPTER II. PARTIES TO TRUSTS; AND WHAT PROPERTY MAY BE THE SUBJECT OF A TRUST.* I. §§ 28-37. Who may create a trust. § 28. $29. § 30. § 31. § 32. $33. § 34. $35. $36. § 37. II. §§ 38-59. $ 38. $ 39. $40. SS 42-45. $46. All persons competent to contract or make wills may create trusts. The king may create trusts. The State may create trusts; and so may all its officers. The power of married women to create trusts. Of the ability of lunatics to create trusts. Trusts by bankrupts and insolvents. Who may be a trustee. A person may convert himself into a trustee. Any person capable of taking the legal title may take as Unincorporated societies may be trustees for charitable pur $ 65. § 66. Lunatics as trustees. A religious person or nun as trustee. A bankrupt as trustee. Cestui que trust may be a trustee for himself and others. Who may be cestui que trust. All persons may be cestuis que trust who may take the legal title. The Crown and the State may be cestuis que trust. Corporations as cestuis que trust. Aliens as cestuis que trust. Those who cannot take a legal interest cannot take an equi table interest. Except in certain charitable trusts. IV. §§ 67-72. $ 67. $68. $ 69. S$ 71, 72. What property may be the subject of a trust. A trust may be created in every kind of valuable property. Possibilities, choses in action, expectancies, and property not at the time in esse may be assigned in trust. I. Choses in action and expectancies that cannot be assigned in trust. Trusts in land lying in a foreign jurisdiction, and their adadministration. Who may create a Trust. § 28. Ir may be stated, as a general proposition, that every one competent to enter into a contract, or to make a will, or to deal with the legal title to property, may make such disposition of it as he pleases; and he may annex such conditions and limitations to the enjoyment of it as he sees fit; and he may vest it in trustees for the purpose of carrying out his intention. All persons, sui juris, have the same power to create trusts that they have to make a disposition of their property. A conveyance or disposition of property by persons not sui juris is valid to the extent of their legal capacity. § 29. The king may, by charter, grant his private property to one person upon trust for another. But the trust must appear upon the face of the patent, and cannot be proved by parol. He can also by will in writing under the sign-manual bequeath his private personal property to trustees for the use of another. He may by warrant grant prizes taken in war to trustees, to be distributed among the captors, and by statute he is authorized to convey trust property which has escheated to the Crown to trustees to execute the trust.5 § 30. In the United States the sovereignty resides in the organized people; and all public officers are subjects and 1 Bacon on Uses, 66. 2 Fordyce v. Willis, 3 Bro. Ch. 577. 8 39 & 40 Geo. III. c. SS. But it is said that probate of his will can not be granted. Williams's Ex'rs, 13. Alexander v. Duke of Wellington, 2 R. & M. 35; Stevens v. Bagwell, 15 Ves. 140. But it is said that the cestui que trust cannot maintain a suit against the trustees in such cases. 39 & 40 Geo. III. c. 83. citizens, and they can convey their private property to trustees in the same manner as private individuals. The State itself by its legislation, or by its public officers duly authorized, can create a trust, convey property, and appoint trustees; and such trustees are equally amenable to the jurisdiction of chancery. But a State cannot remove the trustees of a private corporation and appoint others in their stead.3 § 31. All corporations, subject to the terms of the charters and laws under which they exist, may alienate their property; and their power to appoint trustees and to declare in what manner the property shall be enjoyed, is coextensive with the right of alienation.4 § 32. By the civil law married women could alienate their property and dispose of it by will. By the common law they were almost wholly incapacitated from dealing with their estates. The tendency of modern legislation is to remove these disabilities, and to enable them to make contracts and wills, as if they were sole, in relation to property held by them in their own right. By joining their husbands in fines and recoveries in England,5 and in deeds in America executed according to the prescribed formalities, they can, as a general rule, convey their property to trustees. In those 518. 6 1 Commissioners v. Walker, 6 How. (Miss.) 143, 38 Am. Dec. 433. 2 Cotterel v. Hampson, 2 Vern. 5; Buchanan v. Hamilton, 5 Ves. 722. * State v. Bryce, 7 Ohio, 414; Dart. College v. Woodward, 4 Wheat. 4 Colchester v. Lowten, 1 V. & B. 226; Att. Gen. v. Aspinall, 2 M. & Cr. 613; Att. Gen. v. Wilson, 1 Cr. & Ph. 1; Catlin v. Eagle Bank, 6 Conn. 233; State of Maryland v. Bank of Maryland, 6 Gill & J. 205; Dana v. Bank of United States, 5 W. & S. 224; Arthur v. Comm. Bank, 9 S. & M. 394; Barry v. Merchants' Exch. Co., 1 Sand. Ch. 280; Hopkins v. Turnpike Co., 4 Humph. 403; Reynolds v. Stark County, 5 Ham. 204; Angell on Corp. § 191; Barings v. Dabney, 19 Wall. 1. In England, municipal corporations are declared by statute to be trustees of their real and personal estate, and they are debarred from alienating it without the consent of the Lords of the Treasury. 5 & 6 Wm. IV. c. 76, § 94. 5 3 & 4 Wm. IV. c. 74. 6 Durant v. Ritchie, 4 Mason, 45. their property with powers of sale. And they can make mortgages of Young v. Graff, 28 Ill. 20. States where a married woman can convey her real and personal property without joining her husband, she can convey it to trustees to such uses as she may appoint; and where statutes have given her a testamentary capacity, she can create trusts and appoint trustees by her will.1 A married woman is considered in all respects as a feme sole in regard to property settled to her separate use; 2 as if real estate is conveyed to a trustee and his heirs, or if personal estate is assigned to a trustee and his executors, for her sole and separate use, the absolute interest to be at her sole disposal, she has the entire control, and may exercise her ownership or implied power of appointment by creating a trust extending even beyond her coverture. If she is tenant for life, to her sole use, she can make a settlement of her life-estate. But if the power of anticipation is restrained, she can make no disposition except of the annual produce which has actually accrued or become due. A married woman will be treated as a feme sole only in regard to property settled upon her; and her power of disposing of property thus settled will be governed by a strict interpretation of the instrument of settlement. If the deed of settlement points out the manner in which she may dispose of her interest, she must follow that particular manner; as if the power is given her to convey or appoint by deed, she cannot convey or appoint by will; and if by will, she cannot convey by deed. If the instrument is silent as to her power to convey, she may devise the property by will. Savings by a wife out of an allowance made by her husband for her separate maintenance are treated in equity as her separate estate, which she may dispose of;5 and so are the accumulations. 1 1 Redfield on Wills, pp. 21-28. 2 Lewin on Trusts, p. 23 (11th London ed.); Hill on Trustees, p. 421 (4th Amer. ed.). The English rule is stated in the text. The courts in some of the United States follow the same rule; in others a different rule is estab lished. All the distinctions are stated, and the authorities collected in the chapter upon Trusts for Married Women. 4 Mory v. Michael, 18 Md. 227. Brooke v. Brooke, 25 Beav. 342. |