TRUST AND TRUSTEE. A trust, which is in fact only a new name given to a use, is well defined by Lord Coke in the words employed by him for the definition of the latter term, namely " A confidence reposed in some other, not issuing out of the land, but as a thing collateral, annexed in privity to the estate of the land, and to the person touching the land, for which cestui que we has no remedy but by subperea in Chancery." (Co. Litt. 272 h.) The explanation of the terms of the above definition, and an account of the origin of uses and trusts, and their connection with each other, will be found under USES. The purpose of this article is to give a general account of the nature, constitution, and objects of trusts, of the duties and liabilities of trustees, and of the rights and estate of the testa gee trusts, that is, of the persons beneficially entitled under trusts.
The first division of trusts is into simple and special. The simple trust corresponds exactly with the ancient use, and is where property is simply vested in one person for the benefit of another, the terms of the treat not being specified, but left to the construction of law. The special trust, on the other baud, is where property is vested hi trustee for purposes particularly pointed out, and where therefore lie is not the simple depositary of the estate, but is bound, in hie character of trustee, to the active performance of certain duties. Special trusts are further subdivided into ministerial and discretionary; the former being such es require for their performance only the ordinary qualities of a rational agent, the latter such as involve the exercise of more or less judgment and discretion.
I. Of the creation of trusts.
1. And first, as to trusts created by the act of a party.
A declaration of a trust is regarded in e9uity as a gift or conveyance of property to the persous who are the objects of the trust, and there fore the capacity to declare a trust is limited by the same rules as the power of disposing of property at law. Thus persons under the disabilities of 4:overture, infancy, lunacy, or itliotoy are incapable of creating trusts wherever they would be Incapable of conveying at law.
By the common law, trusts might be created by parole, but by the seventh section of the Statute of Frauds (29 Car. 11. c. 3) it was enacted that "all declarations, or crestiona of trusts or confidences in any laud!, tenements, or hereditamente, shall be manifested and proved by some writing, signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect." The words " lands, tenements, and heredtta
inenta " in this clause can have no application to personal estate, trusts relating to which are therefore not affected by the statute; but they comprise chattels real (3 Yes. 696) and copyholds (Arab. 151.) It is to be observed that the statute does not rewire frusta to be declared in writing, but only to be manifested and proved by writing; and therefore, though the language of the 9th section aa to grants and assignments of trusts renders it, probable that the intention of the act was that the declaration itself should be in writing, it is established that the statute is satisfied if the trust be manifested by any subsequent acknowledgment on the part of the trustee, however informal or indirect, as by a letter under his hand, his answer in Chancery, or by a recital in a deed, &c.; end though the writing itself must lc signed, the terms of the trust may be collected from a paper not signed, pro vided It can be clearly connected with the signed writing. (3 Yes. 606; 2 Vern. 233; 2 1'. W. 412.) The enactments of the Statute of Frauds with respect to wale, as now modified by 1 Viet. c. 29, also indirectly affect the creation of trusts. As wills must be executed according to certain formalities, it follows that a trust of realty or personalty cannot be created by will without the observance of the proper solemnities; and it has been determined that, if the legal estate be effectually devised, but the declaration of trust be not duly attested, the deviates of the legal estate will be entitled to the beueficial interest (3 Atk. 141); though if there be viola fides on the part of the devisee or legatee, as if there be an express or implied undertaking to execute the intent, a court of equity will establish the trust notwithstanding the statute. (2 Vern. 559.) A trust may be created either directly, by express declaration, or indirectly, without mention of a trust in words, by the expression of an intention, which the court of equity will execute as a trust.