§ 110. An acknowledgment in writing of the receipt of "the sum of $119,000 in bonds of the C. Railroad Company," and "$50,405 of coupons or interest warrants, etc., amounting in the aggregate to the sum of $169,405, which said sum I promise to expend in the purchase of lands from A., B. and C., trustees of the said railroad company, at or near the average price of $5 per acre," establishes a trust to buy land with the bonds and coupons at $5 per acre, and not with the proceeds of them; and a sale of the bonds at a nominal price is a fraudulent breach of trust, and a purchaser from the trustee under such circumstances, with notice of the purpose for which the bonds were held, cannot hold them as against the cestui que trust. Kitchen v. Bedford, 13 Wall., 413.

§ 111. Where a testatrix empowered a trustee to sell lands for purposes of re-investment, "when the major part of my children shall recommend and advise the same," it was held that the consent of the major part of those living at the time when the sale was made was sufficient. Sohier v. Williams, 1 Curt., 479.

§ 112. Where, under a devise to an ecclesiastical society, the possession, management and control of the property devised is given, exclusively to trustees, with power to perpetuate their authority indefinitely, the society as beneficiary only receiving the rents and profits, the legal estate in the property devised vests in the trustees and not in the society. Stanley v. Colt, 5 Wall., 119.

§ 113. W. K. in his will made the following devise: "In case of having no children, I then leave and bequeath all my real estate, at the death of my wife, to W. K. (the appellant), son of my brother, J. K., on condition of his marrying a daughter of W. T., and my niece, R., his wife, in trust for the eldest son or issue of said marriage, and in case such marriage should not take place, I leave and bequeath said estate to any child, giving preference to age, of said W. and R. T., that will marry a child of my brother J. K., or of sister E. M., wife of J. M., and their issue." Upon the construction of the terms of this clause, it was decided by the supreme court in 3 Pet., 346, that W. K., the devisee, took the estate upon a condition subsequent, and that it vested in him (so far as not otherwise expressly disposed of by the will) immediately upon the death of the testator. W. T. having died without ever having had any daughter born of his wife, R., the condition became impossible. All the children of W. T. and R., his wife, and of J. K., and E. M., are married to other persons; and there has been no marriage between any of them, by which the devise over, upon the default of marriage of W. K. (the devisee) with a daughter of W. T., would take effect. The case was again brought before the court on an appeal by W. K., in whom it had been decided the estate devised was vested in trust; and the court held that W. K. did not take a beneficial estate in fee in the p emises, but a resulting trust for the heirs at law of the testator. There is no doubt that the words in trust," in a will, may be construed to create a use if the intention of the testator, or the nature of the devise, requires it. But the ordinary sense of the term is descriptive of a fiduciary estate or technical trust; and this sense ought to be retained until the other sense is clearly established to be that intended by the testator. In the present case there are strong reasons for construing the words to be a technical trust. The devise looked to the issue of a person not then in being, and of course, if such issue should come in esse, a long minority must follow. During this period it was an object with the testator to uphold the estate in the father for the benefit of his issue; and this could be better accomplished by him as a trustee than as a guardian. If the estate to the issue were a use, it would vest the legal estate in them as soon as they came in esse, and if the first-born children should be daughters, it would vest in them, subject to being divested by the subsequent birth of a son. A trust estate would far better provide for first contingencies than a legal estate. There is then no reason for deflecting the words from their ordinary meaning. King v. Mitchell, 8 Pet., 326. § 114. supplemental instruments.- Where a valid trust is created by a deed and it is explained by a supplemental instrument that names the beneficiaries, both instruments are to be construed together. Heermans v. Schmaltz, 7 Fed. R., 566.

§ 115. Validity of.—A clause in a will which vests property in a trustee for the use and benefit of each of testator's children during his or her life, to descend upon the death of any of such children to his or her heirs, without any power or right on the part of any of said children to incumber any portion of said property, or anticipate the rents thereof, said rents to be collected by the trustee and paid to the devisees in person, is valid and operative, and not opposed to public policy. Spindle v. Shreve, 9 Biss., 199; 4 Fed. R., 136; 10 Rep'r, 481. § 116. Whenever a trust is created a legal estate sufficient for the execution thereof shall, if possible, be implied. Stanley v. Colt, 5 Wall., 119.

§ 117. Gifts after marriage, by third persons, may be expressly made for the sole and separate use of a wife, and if the husband consents to her receiving them, he and his creditors are bound by the trust. In re Grant, 2 Story, 312.

§ 118. A devise of a fee to trustees and their heirs, with authority to sell, is consistent

with an executory bequest of the fee to others after a life estate. Ward v. Amory, 1 Curt., 419.

§ 119. A trust for the benefit of the children of the grantor's niece, W., is not, by reason of the omission of the names of the beneficiaries, invalid under a statute requiring all express trusts to be "fully expressed, and clearly defined upon the face of the instrument creating it." Heermans v. Schmaltz, 7 Fed. R., 566.

§ 120. Members of a religious society having acquired property by their common labor entered into articles of agreement among themselves by which they relinquished their individual rights in such property, both for themselves and their heirs, for a common interest in all the property of the community. They gave up all claim to the results of their individual labor, and provided for the support and maintenance of each at the expense of all, and provided for the admission of new members upon the same arrangement. Held, that such articles of agreement are not a grant, but are a declaration of a trust, and being in writing are valid; and that such contract is not void as creating a perpetuity, for new members could only come in by entering into a new contract, and depends on such contract rather than on the principles of the original articles of agreement. Goesele v. Bimeler, 5 McL., 225.

§ 121. A condition in a trust deed executed by a husband for the benefit of his wife, and in view of separation, that she should enjoy the separate estate secured to her by the trust deed although she should subsequently become reconciled to her husband and cohabit with him, is valid. Walker v. Walker, 9 Wall., 743.

§ 122. consideration.- A covenant by the husband for the maintenance of the wife, contained in a deed of separation between them, through the medium of trustees, where the consideration is apparent, is valid, and will be enforced in equity, if it appears that the deed was not made in contemplation of a future possible separation, but in respect to one which was to occur immediately, or for the continuance of one that had already taken place. Ibid. § 123. In consideration of $800 advanced by a wife from her separate estate, the husband conveyed certain property in trust for his wife to A., after which he assigned all his property to A. for the benefit of creditors. On bill filed by the wife against the representative of A. to enforce the trust, held, that even if the husband and wife knew that the value of the property conveyed exceeded $800, which excess ought to have gone to the creditors, it could not, therefore, be presumed that the conveyance to the trustee, absolute on its face, was intended as a mortgage. Hunt v. Danforth,* 12 Law Rep. (N. S.), 74.

§ 124. Where an agreement or trust is executed, or is evidenced by a writing sealed, a consideration will usually be presumed. Tufts v. Tufts, 3 Woodb. & M., 456.

§ 125. A trust to hold property for a woman separated from her husband, she having relinquished alimony and dower in consideration of the benefits of such trust, is a valid trust, and will be upheld in equity, the indenture creating the trust not being based solely on the separation. Walker v. Beal, 3 Cliff., 155.

§ 126.

under statutes of Wisconsin.- The creation of an express trust to rent and sell lands for the benefit of the grantor during his life, and of other persons after his death, in the manner indicated or to be indicated in a writing supplementary to the deed of trust and to be subsequently executed, is authorized by the fifth subdivision of section 2081 of the Revised Statutes of Wisconsin, which provides that express trusts may be created "for the beneficial interests of any person or persons, when such trust is fully expressed and clearly defined upon the face of the instrument creating it." Heermans v. Schmaltz, 7 Fed. R., 566.

IV. USES.

SUMMARY - For sole use of married woman, § 127; death of husband; trust becomes passive, § 128.

§ 127. A trust which would otherwise, under the statute of uses and trusts, vest the legal title in fee in the cestui que trust, if made for the benefit of a married woman, for the purpose of giving her the separate use and control of lands free from the control of her husband, will be sustained. Bowen v. Chase, § 129-132.

$128. Lands were conveyed in trust, either to collect the rents and profits and pay them over to the cestui que trust, a married woman, or to permit her to use, occupy and possess the premises and collect the rents and profits to her separate use, and in either case to convey as she might direct, or to her heirs in case of no direction. Held, that under the laws of New York on the death of her husband it would seem that the trust became a mere passive one. Ibid.

[NOTES.- See §§ 133-145.]

BOWEN v. CHASE.

(4 Otto, 813-824. 1876.)

APPEAL from U. S. Circuit Court, Southern District of New York.
Opinion by MR. JUSTICE BRADLEY.

STATEMENT OF FACTS.-The principal objects of the bill in this case, which was filed in the court below by the appellees, Nelson Chase, Eliza Jumel Pery and Paul R. G. Pery, her husband, and William I. Chase, were to establish their title to certain lands in the city of New York, known as the Stephen Jumel property, and to enjoin George W. Powen, the appellant, from prosecuting certain actions of ejectment, one brought by him to recover the property above named, and the others to recover certain lands in Saratoga, belonging to the late Madame Jumel, widow of Stephen Jumel, and claimed by the appellees by way of satisfaction for certain charges against her estate, as well as by conveyance from her supposed heirs, children of a deceased sister.

Stephen Jumel was the owner of a lot at the corner of Broadway and Liberty streets, and of several tracts of land on Harlem Heights, in the upper part of New York city. In 1827 and 1828, by certain mesne conveyances, the greater portion of this property was conveyed to one Michael Werckmeister upon the following trusts, namely:

"In trust that the said party of the second part (Werckmeister) and his heirs collect and receive the rents, issues and profits of the said above-described and hereby-conveyed premises, and every part and parcel thereof, and pay over the same unto Eliza Brown Jumel (the wife of Stephen Jumel, late of the city of New York, now of Paris, in France), or, at her election, suffer or permit her to use, occupy and possess the said premises, and to have, take, collect, receive and enjoy the rents and profits thereof, to and for her own separate use and benefit, and to and for such other uses and purposes as the said Eliza Brown Jumel shall please and think fit, at her own free will and pleasure, and not subject to the control or interference of her present or any future husband, and the receipt and receipts of her, the said Eliza Brown Jumel, shall at all times be good and sufficient discharges for such payments, and for such rents and profits to him, the said party of the second part, his heirs, executors and administrators, and to the person or persons who are or shall be liable to pay the same; and upon this further trust, that the said party of the second. part or his heirs lease, demise, let, convey, assure and dispose of all and singular the said above-described premises, with their and every of their appurtenances, to such person or persons, for such term or terms, on such rent or rents, for such price or prices, at such time or times, to such uses, intents or purposes, and in such manner and form as she, the said Eliza Brown Jumel, notwithstanding her present or any future coverture, as if she were a feme sole, shall, by any instrument in writing, executed in the presence of any two credible witnesses, order, direct, limit or appoint; and in case of an absolute sale of said premises, or of any part thereof, to pay over the purchase money to the said Eliza Brown Jumel, or invest the same as she shall order and direct; and upon this further trust, upon the decease of the said Eliza Brown Jumel, to convey the said above-described premises, or such parts thereof as shall not have been previously conveyed by the said party of the second part, or his heirs, and with respect to which no direction or appointment shall be made by the said Eliza Brown Jumel in her life-time, to the heirs of said Eliza Brown Jumel in fee-simple; and pay over to the heirs of the said Eliza Brown

Jumel such moneys as shall remain in the hands or under the control of the said party of the second part or his heirs, arising from collections of the rents and profits, or of the proceeds of the sales of the above-described premises, or any part thereof."

On the 21st day of November, 1828, the said Eliza Brown Jumel, by a deed duly executed as required by the trust, made an appointment of all the lands conveyed in trust, in the following terms, to wit:

"Now I, the said Eliza Brown Jumel, do hereby direct, order, limit and appoint that, immediately after my demise, the said Michael Werckmeister, or his heirs, convey all and singular the said above-described premises to such person or persons, and to such uses and purposes, as I, the said Eliza Brown Jumel, shall by my last will and testament, under my hand, and executed in the presence of two or more witnesses, designate and appoint; and for want thereof, then that he convey the same to my husband, Stephen Jumel, in case he be living, for and during his natural life, subject to an annuity, to be charged thereon during his said natural life, of $600, payable to Mary Jumel Bownes, and after the death of my said husband, or in case he shall not survive me, then, immediately after my own death, to her, the said Mary Jumel Bownes, and her heirs in fee."

It is on this trust and appointment that the appellees rely as the foundation of their title to what is generally known as the Stephen Jumel estate. Mary Jumel Bownes, the appointee of the residuary estate, was the adopted daughter or protegée of Stephen Jumel and Madame Jumel, his wife, and the reputed niece of the latter. In 1832 Mary Jumel Bownes became the wife of Nelson Chase, and had by him two children, Eliza Jumel Pery and William I. Chase, appellees in this case. She died in 1843, leaving these children her sole heirsat-law, in virtue of which they claim title to the estate.

The appellant claims to be an illegitimate son of Madame Jumel, born in 1794, before her marriage with Stephen Jumel; and by virtue of that relationship, and of a statute of New York passed in 1855, enabling illegitimate children to inherit from their mother, he claims to be her sole heir-at-law. He resists, on various grounds, the claim of Mrs. Chase and her heirs under the appointment. First, he contends that Madame Jumel took a legal estate in fee-simple by virtue of the trust deed. But if not, then he contends, secondly, that by certain conveyances and appointments made by Madame Jumel, under the powers contained in the trust deed, the appointment in favor of Mrs. Chase was displaced and superseded by other estates which inured to Madame Jumel.

The conveyances and appointments referred to under the second head are the following:

First. A conveyance to Alexander Hamilton by Werckmeister, the trustee, at the request and by the appointment of Madame Jumel, dated the 10th day of January, 1834, of ninety-four acres of land at Harlem Heights, for the expressed consideration of $15,000. On the 21st day of October in the same. year, this property was reconveyed by Hamilton to the trustee, upon the same. trusts declared in the original deed of trust.

Secondly. A conveyance by the trustee, at the instance and appointment of Madame Jumel, made on the 20th day of August, 1842, to one Francis Phillippon, of a large portion of the estate, for the expressed consideration of $100,000; and a reconveyance of the same property, on the same day, by Phillippon to Madame Jumel in fee, for the expressed consideration of $1.

Besides these conveyances in 1850, a lot of thirty-nine acres, being part of the property on Harlem Heights, was sold and conveyed to Ambrose W. Kingsland; and in 1853 another lot of three acres to Isaac P. Martin; which conveyances are admitted to have been made to actual purchasers for valuable consideration.

The effect of these various deeds and conveyances is now to be considered. And, first, that of the trust deeds executed to Werckmeister in 1827 and 1828. There were two of these deeds, but the trusts in both were precisely the same.

The limitations of this trust are very clear and plain, being of a life estate to the separate use of Eliza Brown Jumel (known as Madame Jumel), with a general power of appointment during her life-time; and, on failure to make such appointment, to her heirs in fee-simple.

§ 129. Trust for married woman, giving her separate use of lands, will be supported.

The counsel for the appellant contends that this trust amounted to a use of the lands, and that, under the old statute of uses and trusts, it operated to vest the legal estate in fee in Madame Jumel. But we think that the authorities are very clear, that where a trust is thus created for the benefit of a married woman, for the purpose of giving her the separate use and control of lands free from the control of her husband, it will be sustained; since to merge the trust in the legal estate, or, to speak more properly, to convert it into a legal estate, would have the effect of placing the property in the husband's control by virtue of his marital rights, and would thus defeat the very purpose of the trust. Harton v. Harton, 7 T. R., 653; Cornish on Uses, 59, sec. 6; Rife v. George, 59 Penn., 393.

The legal effect of the appointment made by Madame Jumel November 21, 1828, we do not regard as any more doubtful than that of the trust. It was manifestly this: that, subject to Madame Jumel's right of disposing of the lands by will (which right she reserved), and after the termination of her separate interest for life, the equitable estate in the lands was limited to her husband for life, with remainder to Mary Jumel Bownes in fee-simple. This is so obvious as to require no elaboration of argument or discussion. The interests limited to Stephen Jumel for life, and to Mary Jumel Bownes in fee, were immediate vested interests, though to take effect in possession at a subsequent period, namely, at the death of Madame Jumel, and subject to be divested by her reserved power of disposing of the lands by will. The cir cumstance that the appointment in their favor is, in form, a direction to the trustee to convey to them, does not derogate from the vesting quality of their equitable interests in the meantime. The conveyance would be necessary for the purpose of clothing them with the legal estate. Stanley v. Stanley, 16 Ves., 507; Phipps v. Ackers, 9 Cl. & Fin., 594; 4 Kent's Com., 204; Radford v. Willis, L. R., 12 Eq. Cas. 110; L. R., 7 Ch. App., 11.

$130. Statute of New York as to uses and trusts.

The effect of the Revised Statutes of New York upon this trust is next to be considered. The chapter which contains the article on uses and trusts (1 R. S., 727) went into operation on the 1st of January, 1830. By this article all passive trusts were abolished, and the persons entitled to the actual possession of lands and to the receipt of the rents and profits thereof, in law or in equity, were to be deemed to have the legal estate therein to the same extent as their equitable estate; saving, however, the estates of trustees whose