regular act in his own name. power, to be effectual, must be the act of the principal, done in his name, and be such an act as the principal himself would be capable of performing at the time the act was done. When the principal dies (being thereafter incapable of performing any act himself), all powers which he has conferred upon others, and which must be exercised in his name as principal, are, of necessity, revoked. Such powers die with him, for it would be an absurdity to allow an act to be done in the name and as the act of a principal who was dead when the act was done, to allow an agent to do for him and in his name what he had no power to do for himself. Story, Ag. § 488. But where the estate or interest upon which the power is to be exercised passes with it, and vests in the donee of the power, he acts in his own name. The estate or interest being in him, he can convey it in his own name. He is not a substitute, acting in the name and place of another, but is a principal, acting in his own name, by virtue and in pursuance of powers which limit his estate or interest. In such a case the reason which limits the power to the life of the person giving it no longer exists, and the rule ceases with the reason upon which it is founded."

The act of the donee of a naked

Sec. 945. Statute of uses-Execution of trust. The Illinois statute, ch. 30, § 3, provides that a conveyance in trust to the use of "any other person or persons or of any body politic" shall vest the title in fee in the cestui que trust. It is held that this rule would not apply to a deed conveying land in trust to the use of a firm which did not describe the nature of the trust or give the names of the partners nor specify their particular interests. Silverman v. Kristufek, 162 Ill. 222 (44 N. E. Rep. 430). The court say: "Under the statute of uses, where an estate is conveyed to one person for the use of another, or upon a trust for another, and nothing more is said, the statute immediately transfers the legal estate to the use, and no trust is created although express words of trust are used.' Kirkland v. Cox, 94 Ill. 400. 'Under the statute of uses, a feoffment to A. for the use of, or in trust for, B., would pass the legal title to B.' Whitham v. Brooner, 63 Ill. 344. This, however, has reference only to what are called

passive or dry trusts. In the case of a merely passive trust, the legal estate never vests in the feoffee, but is instantly transferred to the cestui que use, as soon as the use is declared. Kellogg v. Hale, 108 Ill. 164. By a conveyance to A. in trust for B., the latter takes both the legal and equitable estate, and A. takes nothing. Roth v. Michalis, 125 Ill. 325 (17 N. E. Rep. 809). In case of a merely passive trust, the trustec acquires but a momentary seisin to serve the use, which the statute executes by transferring the legal estate to the beneficiary named. O'Melia v. Mullarky, 124 I11. 506 (17 N. E. Rep. 36). But where the trust is an active one the statute does not execute the use. A conveyance is withdrawn from the operation of the statute where such powers or duties are imposed with the estate upon a donee to uses that it is necessary for him to continue to hold the legal title in order to perform his duty or exercise the power. Special or active trusts are not within the purview of the statute. Kirkland v. Cox. 94 Ill. 400. Where the trust is of such character that the trustee is required to convey the estate, the trust is an active one. 1 Perry, Trusts (3d Ed.), § 305. If *** the trust is created for some special purpose, as to convey the estate, * it is a trust which the statute will not execute, and of course it leaves the legal estate in the trustee. 2 Washb. Real Prop. (5th Ed.) marg. p. 163. So the operation of the statute is excluded, and the trust or use remains a mere equitable estate, if the purpose of the trust is to protect the estate for a given time. Kirkland v. Cox, supra. As Lord Chadwick said in Chapman v. Blissett, Cas. t. Talb. 145: 'Where particular things are to be done by the trustees, it is necessary that the estate should remain in them so long, at least, as those particular purposes require it.' Posey v. Cook, 1 Hill (S. C.) 413. In order to bring an estate within the operation of the statute of uses, so as to execute the use in respect to the same, there must be a concurrence of three things: First, a person seised to a use; second, a cestur que use in esse; and, third, a use in esse, either in possession, reversion, or remainder.' 2 Washb. Real Prop. marg. p. 113; Witham v. Brooner, supra; 27 Am. & Eng. Enc. Law, p. 911. The third section of our conveyance act, which is substantially the same as the statute of uses of 27 Hen.

*

VIII, provides, that where any person shall stand seised of and in any lands to the use or trust of any other person or persons or of any body politic,' etc. 1 Starr & C. Ann. St. p. 569. The cestui que use must be a person or body politic,a natural person or an artificial person, like a corporation. Where the estate is limited to the use of a person not in esse, or capable of being ascertained, the statute will have no operation until the cestui que use comes into being, or is ascertained. Where there is no determinate person to claim as beneficiary, there is wanting an essential element of the trust, and, where the trustee must hold the legal title until the beneficiaries are determined, the case is not one where the statute transfers the legal estate to the use. 2 Washb. Real Prop. (5th Ed.) marg. pp. 115, 116, 163; Aid Soc. v. England, 106 Ill. 125; Dean v. Long, 122 Ill. 447 (14 N. E. Rep. 34)."

6

Sec. 946. Passive trusts-As to when title vests in beneficiary. It is held that where land is conveyed to a trustee for the sole use and benefit of the beneficiary, the trust being passive and no act being required of the trustee, title vests at once in the beneficiary. Foster v. Glover, 46 S. C. 522 (24 S. E. Rep. 370). The court say: "The statute of 27 Henry VIII, ch. 10, provided that when any person shall be seised of bonds, etc., to the use, confidence, or trust of any other person or body politic, the person, etc., entitled to the use in fee simple, fee tail, for life or years, or otherwise, shall from henceforth stand and be seised or possessed of the land, etc., of and in the like estate as they have in the use, trust, or confidence, and that the estate of the person so seised to uses shall be deemed to be in him or them that have the use in such quality, manner, form, and condition as they had before in the use.' Our statute (§ 2089, Rev. Stat.) concludes that the person, etc., having such use, etc., shall be deemed and adjudged in lawful seizure, estate and possession of same lands, etc., to all intents, instructions and purposes in law, of and in such like estates as they had or shall have in use, trust or confidence in the same.' The grant in this deed is to the trustee, his heirs and assigns, forever;' but there are no words of inheritance in reference to the cestuis que trustent The trustee is simply to hold in trust for Sarah A. Foster and

her children.' There is strong authority for saying that, when the statute of uses executes the estate in the cestui que trust, the exact estate given to the trustee is transferred to the cestui que trust. See Perry, Trusts (3d Ed.) p. 404, § 312. The rule in reference to passive trusts is stated in this authority thus: In all cases where an estate is given to one for the use of another in such manner that the statute of uses steps in and executes the estate in the cestui que trust, the statute executes in the cestui que trust only the estate that the first donee or trustee takes; that is the statute executes or transfers the exact estate given to the trustee.' This author goes on to state that a different rule prevails in respect to an estate upon a trust or use not executed by the statute. • In all these cases,' says he,' the extent or quantity of the estate taken by the trustee is determined, not by the circumstance that words of inheritance in the trustee are or are not used in the deed or will, but by the intent of the parties; and the intent of the parties is determined by the scope and extent of the trust.' In the case

at bar the fee was given to the trustee, and if the estate was immediately executed in the cestuis que trustent, being a passive trust, then, under this authority, if it be law, the fee is in the cestuis que trustent. While there are no cases in this state in conflict with the rule above stated, it seems that the decided cases in this state have proceeded on the theory that, notwithstanding the grant is to the trustee in fee, the court should look further into the trust deed to ascertain the intent of the grantor. It is not doubted that, as a general rule, the word 'heir' is necessary to carry a legal estate; nor is it doubted that, as an exception to this rule, the word 'heir ' is not necessary to give an equitable estate the character of inheritability, provided the intention of the party creating the trust to grant the fee to the beneficiary or cestui que trust can be made out from the whole instrument. This is conclusively so ruled in Bratton v. Massey, 15 S. C. 277; Fuller v. Missroon, 35 S. C. 328 (14 S. E. Rep. 714); and the authorities in these cases cited. In seeking this intent, courts of equity, in their jurisdiction over trusts, will not be bound by the technical rules of the common law. In Bratton v. Massey, which was a case in which the fee was conveyed to the trustee without words of inheritance in reference to the beneficiary, the court, as was stated by Mr. Justice

Pope in Fuller v. Missroon, supra,' seized upon the almost unlimited power of disposition given to the beneficiary to deduce the intention of the grantor that the estate created by his deed was a fee simple by, in effect, supplying the word "heir."' So, in Fuller v. Missroon, the court, from the power of sale contained in the deed, and the direction that the property 'shall vest in the issue absolute,' deduced the intent that the issue should take the fee. What estate, therefore, did the grantor intend to convey to the cestui que trustent? It is settled by the two cases cited above that where a trust deed is based upon a valuable consideration, however small, this fact may be taken as evidence of the intention of the grantor to convey the whole estate, and it will usually be held to prevent a resulting trust in the grantor or his heirs."

Sec. 947. Spendthrifts' trusts. A deed of trust executed for the benefit of the grantor and others to protect his property from his own intemperate and improvident habits, is held to be irrevocable. Stockett v. Ryan, 176 Pa. St. 71 (34 Atl. Rep. 973). Where a dissipated brother, in order to prevent his squandering his own property, voluntarily conveys it to a sister, he cannot recover it back unless the evidence of an express trust be so conclusive as to establish it beyond reasonable controversy. Guntert v. Guntert, Tenn. (37 S. W. Rep. 890).

Sec. 948. Enforcement and perpetuation of trusts. In order that a court of equity may order the sale of a trust estate for reinvestment, it is necessary that the title shall be such that all the parties interested and who may be subsequently interested can be brought before the court. It is held that where there are contingent remainders such sale cannot be made. Smith v. Smith, 118 N. C. 735 (24 S. E. Rep. 666). Vermont Statute, § 2494, which empowers the probate court to authorize the conveyance of lands held in trust, is held to apply to resulting trusts as well as to trusts created by deed. Bickford v. Bickford's Estate, 68 Vt. 525 (35 Atl. Rep. 471). When a trust exists and all the trustees are dead, the court will appoint other trustees and direct the execution of the trust. Spence v. Widney, Cal. (46 Pac. Rep.