Page:The American Cyclopædia (1879) Volume XVI.djvu/26

18 TRUSTS can recognize and protect, he is said to have an equitable estate. At present, when the courts of law and the rules of law are coming nearer to the courts and the rules of equity, the antagonism between these has passed away, and the distinction become much less impor- tant. There may be any number of trustees and any number of cestuy que trusts in any trust. If the trustee holds the property for the benefit of the cestuy que trust without any particular restrictions, directions, or provisions, it is called a simple trust ; and then the nature and operation of the trust are determined by legal or equitable construction. But if the purposes of the trust, and the manner in which and the means by which these purposes shall be accomplished, are specifically pointed out and defined, it is then a special trust, and these special directions must be accurately complied with. Hence a trust may be merely ministerial; and it is so called when the trus- tee has no other duty than to collect and pay over the proceeds of property. Or it may be a discretionary trust, and is so when the gen- eral purpose only is declared, and the manner in which this purpose shall be accomplished is left to the discretion of the trustee. So a trust may have a power annexed ; as when a trustee of lands has the power of leasing, or even of selling and converting them into per- sonal property. And indeed any lawful pow- ers may be given to a trustee. There are also private trustees and public trustees. The for- mer hold property for one or more individuals, who are distinctly pointed out, personally or by description. Public trustees are those who hold property for the benefit of the whole pub- lic, or for a certain large part of it, as a county, town, of parish. They are regarded by the law as in many respects official persons, with offi- cial rights and responsibilities. The subject matter of a trust may be any property of a val- uable nature, and many things also which the common law does not recognize as disposable or assignable property ; as choses in action and probabilities of every description, or mere au- thorities which may be or become valuable. Even if the property be in another state or country, so that the process of the court could not reach it, yet a court of equity will inter- fere in any case of trust, however distant or inaccessible the property may be, provided the principal defendants are actually served with process, and adequate relief may be given by a decree in personam.As to the capacity of creating a trust, it may be said that any person who has the power of making a valid disposi- tion of any property, by will or grant, has also the power of attaching to his disposition of the property such limitations or directions as shall create a trust. As a general rule, any pereon may be a trustee, even if he be incapacitated by law- from transacting business on his own account. Thus infants, idiots, lunatics, married women, or other persons non sui juris may become trustees. The reason is, that the trust is created for the benefit of the cestuy que trust, and not of the trustee ; and if the trustee can- not take the legal estate, there will be nothing to support the equitable estate, and the trust will fail. So, too, it is established doctrine that a trust once created shall never fail on account of the death of a trustee, or his refusal to accept the trust. All difficulties of this kind are avoided by the power of the proper court (usually the court of equity) to remove a trustee and supply his place, or fill the place of a trustee when vacant by hia death or refusal. It is very common for a will or deed creating a trust to prescribe in what way and by what person or tribunal this power maybe exercised; and provisions to this effect would doubtless be regarded when they did not contravene the general prin- ciples of the law, or the statutory provisions in behalf of trusts and trustees. Any person in possession of property, real or personal, by legal title and of his own right, may, by a proper declaration of trust, convert himself into a trustee, and then his legal title will re- main undisturbed, but subjected to the equita- ble interest. Any person may become a cestuy que trust of property, to the extent of his legal capacity of holding the same. Nor is it neces- sary to the creation of a trust estate that the cestuy que trust should bo named, or even that he should be in being when the trust is created. Thus money may be bequeathed or given to a trustee for any children that a certain person may have living at his death, and to accumu- late until the death of that person. The assent of the cettuy que trust, if he is capable of giv- ing one, is, strictly speaking, necessary ; but it will be presumed where the trust is beneficial to him. Unincorporated societies and institu- tions may take the benefit of a trust, as well as natural persons or corporations. Trusts and uses (see USES) were originally created and de- clared principally, if not exclusively, by parol ; but this was because they were then intended to evade the law. Now, it is uncertain whether trusts of real estate can be created except in writing, and for some purposes by deed. In most of the United States, the provisions of the English statute of frauds, requiring trusts to be in writing, have been reenacted. But in England courts of equity have given a very liberal construction to these provisions, and a similar construction might be expected here. Where a trust is created, if at all, by a writing, especially if that writing be a will, any direct fiduciary expressions, indicative of a purpose that the donee of the property is to take it, in whole or in part, for the benefit, use, advan- tage, or support of another, will be held suffi- cient to create a trust. But such words or directions must be imperative on the donee ; if they, by fair construction, only give him a power or permission, or even express a desire which is not obligatory on him, they do not create a trust. If the trust is distinctly and positively created, although no cestuy que trust is designated, the courts will enforce the trust.