507

Voluntary Gifts-when effectual against the Grantor.

question. The test, as it would seem, is, whether or not a fixed and final determination to transfer the equitable interest to the volunteer, properly evidenced, is proved (a). It has been held, that if a person has actually declared himself to be a trustee, the beneficial interest in the property passes to the cestui que trust without more (b). And it is the same if a person effectually declares that his trustee shall be trustee for another. It has been lately laid down, that if what has been done is equivalent to a transfer of the legal interest, the parties in whose favor the trust is created, are entitled to have the benefit of it in this court (c). But a voluntary transfer of an equitable interest by a person beneficially entitled, seems to require, in order that it may be treated as a complete and final act, that at least notice should be given to the trustee, or that the intended transfer should in some way be acted upon (d). The circumstances of each particular case must have considerable influence where a matter of fact has to be collected from evidence (e); and something must depend on the nature of the property.

*Some general rules applicable to trust estates may be here no[*508] ticed. A man cannot have a legal estate in trust for himself; there is a conjunction of the legal and equitable interests; a man cannot have a

(a) Collinson v. Patrick, cited below, was the case of a voluntary transfer by a married woman, which was held to be a complete executed trust; that was a case of a vested interest. But from the Lord Chancellor's judgment in Meek v. Kettlewell, it appears, that the assignment of an expectancy or possibility not coupled with an inte rest, as a possible title under a deed as the next of kin of a living person, cannot be the subject of gratuitous donation, though it may be of contract (1 Phillips, 343). Every future interest, including possibilities coupled with an interest, in land, may, it will be remembered, now be effectually given by a deed operating at law, 8 & 9 Vict. c. 106, § 6.

(b) Ex parte Pye, ex parte Dubost, 18 Ves. 149. But an instrument purporting to be an assignment, and not capable of operating as such, has been held incapable of being set up as a declaration of trust, Edwards v. Jones, 1 Myl. & Cr. 226. That was the case of an indorsement made on a bond purporting to be an assignment to a volunteer, and the bond was delivered to the intended assignee. The assignee could not have the benefit of the intended assignment without the active interference of the court to give it effect as against the obligor, by compelling the obligee to sue upon it as trustee for the assignee, which would have been to give the transaction a different character to that which it bore upon the face of it. The writing was not an assignment, and it was not intended as a declaration of trust; it therefore was not allowed any operation, though a final intention to give clearly appeared. The case of Antrobus v. Smith, 12 Ves. 39, is to the same effect; and

see Meek v. Kettlewell, ubi supra; and x. Jurist, 192.

(c) Collinson v. Patrick, 2 Keen, 134; ibid. i. p. 558; et v. sup. n. (a), and p. 506, n. (d).

(d) See Meek v. Kettlewell, 1 Hare, 471 to 476.

(e) See Hayes' Introd. p. 101. The law on this subject is not in a very satisfactory state; it will be the subject of particular consideration in the next volume. I will only here observe, that Sir William Grant, in Sloane v. Cadogan, Sugd. V. and P. Append. vol. iii. p. 65, held, though his opinion was extra-judicial, that a voluntary assign ment by deed from a son to a father, of an equitable reversionary interest in a trust fund, might be enforced in equity, inasmuch as the trustees of the reversionary interest were thus made trustees for the assignee; Sir Edw. Sugden, V. and P. iii. 297, threw a doubt upon this doctrine. The present Vice-Chancellor of England, whose authority in questions is of the greatest weight, in the case of Beatson v. Beatson, 12 Simons, 294, evidently disapproved it; but his Honor, as it appears to me, has fallen into a mistake in his statement of the effect of Sir William Grant's observations, for Sir W. Grant evidently did not mean to say that the trust fund had passed by the assignment to the trustees in the deed, nor does he ap pear to have founded his judgment upon that assumption. Mr. Hill, in his Treatise on Trustees, p. 45-54, has examined the authorities on this subject. Lord Lyndhurst, C., in his judgment on appeal, in Meek v. Kettlewell, 1 Phillips, 318, does not appear to have been dissatisfied with Sir W. Grant's doctrine.

Trusts by implication and construction of Law-Implied Trusts. 508

subpoena against himself (a), the equitable estate is absorbed, or rather no longer exists (b); but this rule must be understood always with this restriction, that it is the same estate in equity and at law (c); and when, for the purposes of justice, it is necessary that the equitable interest should exist, the junction of the two estates will not be permitted to put the party in a worse situation (d). When a trust comes to be finally carried into execution by actual conveyance, of course all the incidents. of trust are at an end; and the estates so created become legal estates for all purposes, equally as they would have been if not originating in a trust (e). The ancient rules in favor of bona fide purchasers without notice, have been preserved (f). We now proceed to Trusts by the Operation

of Law.

SECTION III.—Trusts by Implication and Construction of Law-Implied Trusts-Resulting Trusts-Constructive Trusts.

Having considered Express Trusts, the next branch of the subject which presents itself is that of trusts arising from the Operation of Law. Trusts of this description, as has already been observed (g), were no new creations, but were continued from the ancient doctrines of the Court; they will not, therefore, require in this place any lengthened description.

These kinds of trusts may be ranged under two classes-the one comprising what may be called Implied trusts and Resulting trusts-*the other what may be called Constructive trusts (h). The trusts [*509] which will be included in the first class under the name of Implied trusts and Resulting trusts will be such as arise from the act of some party having the beneficial ownership of the property. All other trusts will be classed under the head of Constructive trusts. Trusts of this description depend upon the conclusions of law independently of contract, and often arise in cases where there was no intention to create a trust on the part of any of the parties concerned; generally speaking, they are imposed in invitum (i). And first, as to Implied Trusts.

Implied Trusts.

If a person by will direct his real estate to be sold for the payment of his debts, or if he charge it with the payment of debts or legacies, or express any other particular purpose to which his real estate is to be applied, without expressly imposing a trust for that purpose, by operation of law an implied (k) trust is fastened on the property, and the person in whom the estate may become vested, by descent or by devise, is bound to do all such acts as may be necessary for the accomplishment of

(a) Lord Eldon, Harmood v. Oglander, 8 Ves. 128.

(b) Lord Alvanley, Brydges v. Brydges, 3 Ves. 127. (c) Ibid.

(d) Ibid.

(e) Hayes' Elem. View, 71.

(f) V. supra, p. 424.

(g) V. supra, p. 453.

(h) These expressions are frequently

used in the reports indiscriminately: no precise legal meaning is attached to any one of them.

(i) See Story on Equity, § 1254. 1257. 1260, 1.

(k) This expression is usually applied to trusts of this description, See Lewin, p. 65, though it might be equally applied to some cases of constructive trusts.

the purpose declared by the testator; for without this the purpose could not be effected (a). The common case of a sale of an estate may be given as another instance of an implied trust. The sale, according to reason and justice, being complete by the effect of the contract, the vendor is in effect no longer owner of the estate, but having the legal estate, he is considered impliedly as trustee of it for the purchaser; and the same consequences, generally speaking, follow, as if the vendor had actually so declared himself (b), with this exception, that till payment of the price, the purchaser is not entitled to the full rights of a cestui que trust. The purchaser is in like manner trustee of the purchase-money for the vendor, as part of his personal estate. This is one of the instances in which a trust is fastened on land, so that in the Court of Chancery it is considered to all intents as money, and on money, so that it is considered as land.

Resulting (c) trusts are precisely the same in principle as resulting uses (d). The general rule is, that wherever, upon any conveyance, devise, or bequest, it appears that the grantee, devisee, or legatee, was intended to take the legal estate merely, the equitable interest, or so much of it as is left undisposed of, will result, if arising out of the testator's realty, to himself or his heir, or, if out of personal estate, to himself or his executor. Should the interest resulting to the heir be of a chattel nature, as a term of years, or a sum of money, it will on the death of the heir devolve on his personal representative" (e); but no general [unbending] rule, said Lord Hardwicke, is to be laid down, except in the case where a real estate is devised to be sold for payment of debts, and no more is said, there is clearly a resulting trust; but if any particular reason occurs why the testator should intend a beneficial interest to the devisee, there are no precedents to warrant the court to say it shall not be a beneficial interest (f). It will be remembered that a resulting use is executed by the Statute of Uses (g); but, in truth, the use, in most cases, remains rather than results.

At common law where there is a devise to trustees and their heirs, the whole is gone from the heir, though in equity there may be a beneficial interest remaining or resulting to the heir of the devisor (h). It has

(a) Cook v. Fountain (1676); 3 Swanst. 592; Harg. & B. Co. Litt. 113 a, note (2) in the latter part; Bennett v. Davis, 2 P. Wms. 317; and see Pitt v. Pelham, 2 Freeman, 134, and the other cases cited, Lewin on Trusts, p. 66, n. (e).

(b) See Acland v. Gainsford, 2 Mad. 22; Wilson v. Clapham, 1 Jac. & W. 38; and see Lewin, p. 65, 66.

(c) Result is here used in the sense "to fly back;" but it is frequently used in reference to constructive trusts in the sense of "to be produced as the effect of causes jointly concurring," see Johnson's Dict. hac

v. Smithson, 1 Bro. C. C. 503, in which Lord Eldon first distinguished himself in the Court of Chancery, which is a leading case on the subject of resulting trusts. The doctrine, as collected from the early cases, is stated in the note, 2 Vernon, 19.

(ƒ) Hill v. Bishop of London, 1 Atk. 618; 1 Keen, 50.

(g) 1 Inst. 23 a, 271 a; et v. sup. p. 488; but no use can" result" so as to be executed by the Statute of Uses, from such states of circumstances as are given as illustrations in the next Section, which is one reason which has induced me to include them under a distinct head.

(h) Lord Hardw. Hawkins v. Chappel,

1 Atk. 622.

already been observed, as regards trusts created by the party, that there is a material distinction between the case where property is transferred to another only for the purpose of a trust, and the case of a transfer to a person beneficially with a partial trust reposed; in the latter case, though the purposes of the trust should become abortive, or fail for any cause, nothing will result to the donor or his representatives as will be the case in the instance first alluded to (a).

The ancient doctrine which I have assumed to have prevailed as *regards uses, that on a conveyance to a wife or a child without any trust declared, no use would result to the donor, has, as a general [*511] rule, been adopted as regards trusts, at least to the extent of raising a strong presumption in favor of the wife and the child (b), particularly where there are circumstances indicating an intention to benefit the child (c).

Parol evidence may be admitted to repel a resulting trust arising by operation of law (d), but not where the resulting trust is collected from the terms of the instrument itself (e); but this subject will be adverted to in the next Chapter. I proceed to the remaining class of trusts by operation of law, namely, Constructive Trusts.

Constructive Trusts.

The subject of constructive trusts which, according to the classification I have adopted, embrace every trust arising by operation of law which cannot be classed with those in the two preceding Sections, opens a wide field of inquiry which will be explored in the succeeding volume. It will be sufficient here to give a few instances of constructive trusts in the sense in which I have used those terms.

Constructive trusts (f) may arise not only where property has been acquired by fraud or improper means, but also where it has been fairly and properly acquired, but it is contrary to some principle of equity that it should be retained by the party in whom it is vested, at least for his own benefit. The first case I would mention is that of a purchase made by a man, or by his directions and with his own money, the conveyance being in fact taken in the name of another, the trust of the legal estate has been said (g) in this case *also to "result" to the man who advances the money; and it goes, said Lord C. B. Eyre, on a strict

(a) V. supra, p. 449.

(b) V. supra, p. 453, and see Lord C. B. Eyre's judgment, Dyer v. Dyer, 2 Cox, 94; Floyd v. Spillet, cited 2 Atk. 566; and the cases cited, Lewin, p. 169, note (c).

(c) Cook v. Hutchinson, 1 Keen, 42. (d) See 1 Keen, 50.

(e) See the cases, Lewin, p. 135, note (a). (f) Mr. Hill, in whose Treatise on the Law relating to Trustees this subject is very fully considered (p. 116, et. seq.), thus describes Constructive Trusts:-"Wherever the circumstances of a transaction are such that the person who takes the legal estate in property, cannot also enjoy the beneficial interest without necessarily violating some established principle of equity, the court

[*512]

will immediately raise a constructive trust, and fasten it upon the conscience of the legal owner so as to convert him into a trustee for the parties who in equity are entitled to the beneficial enjoyment."

(g) Lord C. B. Eyre, in the case of Dyer v. Dyer, 2 Cox, 93 (a leading, case), using the word "result" in the second sense before referred to, states that where a purchase is made in the name of a stranger, the trust of the legal estate results to the man who advances the money; but as I have used the word "result" only in the sense first mentioned, I have classed such cases amongst Constructive Trusts. Where it is by arrangement that the purchase is so made, the trust raised by the law becomes

512

Purchase from a Trustee—Trusts of Personal Estate.

analogy to the rule of the common law that where a feoffment is made without consideration, the use results to the feoffor (a). A trustee or executor who avails himself of his character of trustee to purchase a renewal of a lease or to obtain any other advantage, is held to be a trustee for the persons for whom he was a trustee of the original lease (b). So if a trustee purchase the trust property, as a general rule he is held to be a trustee of it for his cestui que trust (c). The principle which governs these cases, is, that a trustee, indeed generally every person standing in a fiduciary situation, is bound to advance the interests of his cestui que trust, or other person by whom or for whose benefit he has been placed, or may stand in that situation, not his own; and though the individual case may be unexceptionable in point of fairness, general policy (d) requires that the rule should be universal, that the trustee should not be permitted to engage in any transaction so that his duties may be thwarted or swayed by views to his own interest. This subject will be again noticed in this, and will be fully considered in the succeeding volume.

Upon a principle analogous to that which prevails as to trustees, if a person having a limited interest in leasehold property under a settlement, avails himself of the situation in which the settlement has placed him, to renew the term on his own account, he will be held to be a trustee for the benefit of all the persons interested in the old lease (e). A purchaser from a trustee, with notice of the trust, is held himself to be a trustee; though a purchaser may, it is said, buy in an incumbrance, or lay hold of any plank to protect himself, yet he shall not protect himself by the taking a conveyance from a trustee, with notice of the trust; for by taking a conveyance, with notice of the trust, he himself becomes the trustee, and must not, to get a plank to save himself, be guilty of a breach of trust (f). It has been already observed, that by the eighth section of the Statute of Frauds, trusts arising or resulting by the implication or construction of law are exempted from its operation (g).

[*513]

*SECTION IV.-Trusts of Personal Estate.

Trusts of Terms Terms in Gross-Attendant Terms-The Act 8 & 9 Victoria for the Extinction of satisfied Terms—Introduction to the succeeding Chapter.

Trusts of terms of years and other personal estate have already been casually adverted to (h). Most of the rules applicable to trusts of freehold interests are equally applicable, mutatis mutandis, to trusts of per

of a character nearly allied to an express Trust; it is extremely difficult to adhere to any classification on this head.

(a) See Dyer v. Dyer, sup. p. 511; but in the illustrations last put in this case, the word "result" is used in its first sense, namely, that to which it is applied in the last Section; in the proposition which the illustration is brought to support, the word, as will be seen, is used in its second sense. (b) Lewin, 170; Pierson v. Shaw, 1 Atk. 480; Abney v. Muller, 2 Atk. 529; Holt v. Holt, 1 Ch. Ca. 190; Luckin v. Rushworth, Finch,

392; Phayre v. Peree, 3 Dow. 128; S. C. 1 Bli. N. S. 594.

(c) Att.-General v. Lord Dudley, Sir Geo. Cooper, 146; Sanderson v. Walker, 13 Ves. 601.

(d) V. supra, p. 427; et v. infra, titles Fraud and Public Policy.

(e) See Lewin, p. 171, 2, where the cases are collected.

(f) Sanders v. Dehew, 2 Vern. 271.
(g) V. supra, p. 497.

(h) V. supra, p. 457. 472.