In direct declarations of trust, technical words are not necessary; but it is established as a general rule that, where they are employed, they are to be taken in their legal and technical sense. A distinction however is made in this respect between what are called trusts executed, in which the limitations are complete and final, and trusts executory, in which the expressed limitations are not intended as complete in themselves, but only as directions or instructions for a settlement to be afterwards executed. To the former the rule is strictly applicable, while with respect to the latter a court of equity will endeavour to execute what appears to be the intention of the parties, notwithstanding the use of inappropriate technical words ; and the only difference in this respect between executory trusts in marriage articles and in wills is, that the known objects and purposes of the former afford a clue to the intention, which iu the latter can in general be collected only from the language of the instrument. (Fearne, ' Cont. Rem.' 94, 114.) When the owner, or the person otherwise entitled to the disposition of property, shows an intention to exercise it in favour of another, the court, unless where there is a want of consideration, will execute that intention, however informally expressed. Thus when a person has contracted with another for the sale of his estate, he becomes thereby a trustee of the estate for the purchaser ; or if a testator, without expressly devising hia lands, direct them to be sold for pay ment of debts and legacies, the lands will descend to the heir as a trustee for the creditors and legatees.
Trustees being considered merely as the instruments through which a trust Is to be carried into execution, the Court of Chancery will not allow a trust to fall to the ground from the want of trustees, or their refusal to act, but will appoint proper persons to administer the trust.
In general all persons capable of acquiring the legal estate in property are capable of being trustees, and are bound by the trusts declared of it ; though an exception should perhaps be made with respect to property vested in the king, against whom there is no remedy in Chaucery, though the subject might sue the crown by preferring a petition of right. (Ilardnes, 487 ; 1 Yee. 446.) The fitness of a person for the office of trustee however depends on his capacity to discharge the discretionary part of the trust, and to join In the requisite assurances relating to the property : feints covert and Infants, on account of the disabilities they labour under, are not proper persons to select for the office of trustees. An alien may discharge the office of trustee of personal chattels, though not of lands or chattels real, as he could not sue or be sued respecting such property ; besides which, the legal estate of the property so conveyed to the alien would vest, on inquisition found, in the king. (Gilb. On Uses,' 48; 2 Mer. 431.) 2. As to trusts created by operation of law.
Trusts of this kind may arise in three ways : 1st. Where the trust originally derives its existence from operation of law ; 2ndly. Where a trust already in existence is revived by operatiou of law, as against a particular property; and, 3rdly. Where a trust already in existence, and annexed to a particular subiect-matter, arises de nave by operation of law as against a particular person.
Trusts of the first kind arise either where an estate is purchased in the name of one person, and the consideration is paid by another, in which case a trust of the legal estate arises for the person who advances the purehaseanoney ; or where, upon a conveyance or will, the grantee, devisee, or legatee is intended to take the mere legal estate, and the beneficial interest is left wholly or partially undisposed of : in which case a trust of so much of the beneficial interest as is undisposed of results to the settler or his heir, if the subject be real estate, and if it be personal estate, to himself or his personal representative. The intention to exclude the person to whom the legal estate is given from the beneficial interest may either be presumed from the circumstances or actually expressed upon the instrument. Whenever, upon a con veyance or will, a trust is declared of part of the estate, and no mention is made of the residue, the partial declaration is considered to have been the sole object of the settlor, and the remaining interest results to him or his representative. But if no trust be expressed of any part of the estate, the grantee or devisee must, in the absence of male fides on his part, be considered as beneficially entitled to the whole. (2 Bro. C. C. 589 ; 1 Atk. 448.) A trust of the second kind arises when the estate is converted by the trustee from one species of property to another, either in pursuance or in breach of his duty. If the property in its original form was subject to a trust, the cestui que trust's interests cannot be affected by any change In that form. Thus where trust-money has been laid out iu the purchase of land, and where the rents and profits of land have been laid out in the purchase of stock, the land and stock have been held bound by the same equity to which the money laid out in the purchase was subject. (8 Ves. 46; 1 Atk. 49.) In the same manner, if a trustee or other person invested with a fiduciary character obtain a renewal of a lease in his own name and at his own expense, the trust which was annexed to the original term will attach upon the renewed lease, and the trustee will be entitled only to the amount of expense incurred. (11 Ves. 391; 1 Eden, 453.) The third kind of trust by operation of law arises wherever the property passes from the trustee into the hands of a person who takes by a derivative title. The heir, devisee, or personal representative of a deceased trustee takes the property in the same character, and is bound by the same equity. Where the trust estate has passed to a stranger by conveyance, if he be a volunteer,-that is to say, if there was no proper consideration for the conveyance,-he will be bound by the trust, whether he had notice of It or not. (2 P. W. 678.) If, however, the grantee was the purchaser of the estate for an adequate consideration, then, if he took with notice of the trust, he will be bound by it, in the same manner as the person from whom he pur chased ; but a bond fide purchaser, without notice of the trust, is not affected by it ; and his title, even in equity, cannot be impeached. (15 Yes. 350; 2 B. & B. 318.) • 1I. Of the estate and office of trustees.