A Treatise on the Law of Trusts and Trustees, Volume 1

Jairus Ware Perry

Little, Brown, 1899 - Trusts and trustees

Contents

• INDEX TO CASES CITED xxix: 233
• The nature of the interest of the vendor under this lien: 234
• 235237 When the lien exists and when: 235
• 238 239 The parties hetween whom the lien exists: 238
• Trust by construction where a conveyance is made that cannot operate: 240
• Catching bargains with young heirs and reversioners: 188
• Trust arising from mental incapacity or imbecility of parties: 189
• Mental weakness old: 190
• Drunkenness: 191
• Duress oppression and distress: 192
• Where several of these circumstances are found combined: 193
• 195 Frauds that arise by construction from the fiduciary relations of parties Between trustee and cestui que trust: 194
• Renewal of leases in his own name by trustee: 196
• 197 198 Contracts prohibited between trustee and cestui que trust but the cestui que trust alone can avoid them: 197
• Rule does not apply to dry trustees: 199
• Guardians and wards: 200
• Parents and children: 201
• 202 203 Attorney and client: 202
• Rule applies to all confidential advisers: 204
• Administrators and executors: 205
• CHAPTER I: 1
• Simple and special trusts: 14
• IMPLIED TRUSTS 112123: 17
• The power of married women to create trusts 33 Capacity and power of infants to create trusts 34 The marriage settlements of infants 35 Of the abil...: 19
• A mixed trust and power and a power annexed to a trust: 20
• 114116 Rules by which trusts will or will not be implied 117 118 Implied trusts from directions as to the maintenance of children or others: 21
• 3859 Who may be a trustee: 27
• at: 35
• A person may convert himself into a trustee: 38
• Any person capable of taking the legal title may take as trustee Rules that govern courts in appointing trustees: 39
• The sovereign may be trustee Question as to remedy: 40
• The United States and the several States may be trustees: 41
• 4245 Corporations may be trustees: 42
• Unincorporated societies may be trustees for charitable pur poses: 46
• Public officers as trustees: 47
• 4851 Married women as trustees: 48
• 5254 Infants as trustees: 52
• Aliens as trustees: 55
• Lunatics as trustees: 56
• A religious person or nun as trustee: 57
• A bankrupt as trustee: 58
• Cestui que trust may be a trustee for himself and others: 59
• 6066 Who may be cestui que trust 60 All persons may be cestuis que trust who may take the legal: 60
• title 61 62 The Crown and the State may be cestuis que trust: 61
• Corporations as cestuis que trust: 63
• Aliens as cestuis que trust: 64
• Those who cannot take a legal interest cannot take an equi table interest: 65
• Except in certain charitable trusts: 66
• 6772 What property may be the subject of a trust 67 A trust may be created in every kind of valuable property: 67
• Possibilities choses in action expectancies and property not at the time in esse may be assigned in trust: 68
• Choses in action and expectancies that cannot be assigned: 69
• trust: 71
• trusts: 73
• 7477 Trusts at common law 74 At common law a writing not necessary to convey land: 74
• When trusts for maintenance are not implied: 119
• Rules that govern implied trusts: 120
• Trusts arising by implication from the provisions of a will: 121
• Implied trusts arising from contracts: 122
• A direction to employ certain persons does not raise an implied trust: 123
• Creation and character of a resulting trust: 124
• Divisions of this kind of trust: 125
• Resulting trust where the purchasemoney is paid by one and deed is taken to another See 142: 126
• Resulting trust where trust funds are used to purchase property and title taken in the name of another: 127
• In what cases a trust results and when a trust does not result See 143 156 160: 128
• When a person uses his fiduciary relation to obtain an interest in or affecting the trust property: 129
• Same rules apply to personal property unless it is of a perishable nature: 130
• Where a resulting trust will not be permitted as against: 131
• No resulting trust in a joint purchase 132 Rules as to a resulting trust: 132
• 133 134 Time and circumstances in the creation of a resulting trust: 133
• Parol evidence as to a purchase by an agent not admissible: 135
• 137 138 Resulting trusts may be established by parol: 137
• May be disproved by parol the burden of proof: 139
• Cannot be changed by parol after they arise: 140
• Will not be enforced after a great lapse of time: 141
• Resulting trusts under the statutes of New York and other States: 142
• A resulting trust does not arise if the title is taken in the name of wife or child: 143
• What persons it embraces: 144
• Doubts and overruled cases: 145
• When it will be presumed to be an advancement: 146
• The presumption may be rebutted: 147
• Is rebutted by fraud in the wife or child: 148
• Creditors may avoid such advancements When and: 149
• A resulting trust from the conveyance of the legal title without: 150
• Every case must depend upon its particular writing and circum stances: 151
• Instances and illustrations: 152
• 153 154 If there is an intention to benefit the donee there is no resulting trust: 153
• Gifts to executors may create resulting trusts 156 Resulting trusts do not arise upon gifts to charitable uses 157 A gift upon trust or to a trustee and n...: 156
• Always a matter of intention to be gathered from the whole instru ment 159 Where a special trust fails it will result 160 Where a special trust fails fr...: 157
• CHAPTER II: 158
• beneficial interest: 159
• CONSTRUCTIVE TRUSTS 166230: 166
• Jurisdiction of equity over them and the relief given by converting the offending party into a trustee: 167
• 168 Classification of constructive trusts: 168
• General definition of a fraud in equity: 169
• Principles upon which equity gives relief against fraud: 170
• Actual fraud or suggestio falsi: 171
• Illustrations of actual fraud: 172
• The misrepresentations and frauds that equity will relieve against: 173
• The misrepresentation must be of facts material to the contract: 174
• The misrepresentation must be of something peculiarly within the partys knowledge: 175
• The relief will depend upon the form in which it is sought: 176
• Fraud that arises from concealment or suppressio veri: 177
• This kind of fraud depends much upon the relation of the parties: 178
• When a person may not be silent: 179
• Suppressio veri is generally in law an affirmative: 180
• All persons competent to contract or make wills may create: 181
• Trust established where a party fraudulently prevents a will from being made in anothers favor: 182
• 183 Trust established in odium spoliatoris: 183
• 184 Trust established upon a conveyance made in ignorance or mistake: 184
• But if the conveyance is a compromise courts will support it if possible: 185
• 186 Trust established when a deed by mistake contains more land than: 186
• intended: 186
• Directors of corporations 208 Trusts that arise out of inducements held out for marriage 209 Other fiduciary relations 210 Undefined fiduciary and...: 211
• Frauds upon third persons as creditors: 212
• Conveyances by man or woman on the point of marriage: 213
• Illegal and immoral contracts: 214
• Fraud by pretending to buy for another: 215
• Devises or conveyances upon secret illegal trusts: 216
• Purchases from trustees with knowledge of the trusts: 217
• Purchases without notice of the trust: 218
• The safeguards thrown around such purchases: 219
• The consideration in such cases: 220
• The consideration must have been actually paid: 221
• Notice of the trust to whom it may: 222
• Notice may be actual or constructive: 223
• Purchase of property from executors or administrators real estate: 224
• 187 Misrepresentation of the value of property and inadequacy of considera: 225
• Constructive trusts may be proved by parol statute of frauds does not apply 227 The right to set aside a conveyance for fraud is an equitable estate th...: 226
• Constructive trust where a corporation distributes its capital stock with out paying its debts: 242
• A person holding the legal title as security is a constructive trustee: 243
• Executor indebted to the testators estate is a constructive trustee: 244
• A person may become a trustee de son tort by construction: 245
• An agent may become a constructive trustee 246 a Other equitable trusts See 247: 246
• A person holding deeds or papers or property belonging to another may be a constructive trustee: 247
• TRUSTS THAT ARISE BY CONSTRUCTION FROM POWERS 248258: 248
• Court will execute such powers as trusts: 249
• 250 251 Instances of powers which the court will execute as trusts: 250
• Instances of powers that are not trusts: 252
• Where the power is too uncertain: 253
• The power must be executed as given or it will remain a trust to be ex ecuted by the court: 254
• 255 256 In what manner the court will execute a trust arising out of a power: 255
• Whether courts will distribute per stirpes or per capita: 257
• And whether to those living at the death of donor or of the donee: 258
• APPOINTMENT ACCEPTANCE DISCLAIMER REMOVAL RESIGNATION SUBSTITUTION AND NUMBER OF TRUS TEES AND APPOINTM...: 259
• What is an acceptance and its effect: 260
• How an acceptance may be shown 261 a Trustees bond: 261
• 262 263 Where an executor is also named as trustee: 262
• Of the executor of an executor or the executor of a trustee: 264
• Trustee de son tort: 265
• No such thing as a passive trustee: 266
• Disclaimer by trustee: 267
• Cannot disclaim after acceptance: 268
• Whether an heir can disclaim after the death of the trustee: 269
• 270 271 Parol disclaimer sufficient but a writing more certain: 270
• tion: 271
• Where a legacy or other benefit is given to the trustee or executor: 272
• Effect of a disclaimer Removal or resignation: 273
• How a trustee may be removed or resign: 274
• For what causes may be removed: 275
• For what causes may be allowed to resign: 276
• 277 278 How the court proceeds in substituting trustees: 277
• Bankruptcy of trustee: 279
• The resignation of trustees: 280
• Where the same person is executor and trustee: 281
• The proceedings to remove and substitute trustees: 282
• Where all parties consent: 283
• Of the vesting of the property in the new trustees: 284
• Duty of trustee where all consent to his discharge: 285
• Of the number of trustees Appointment of trustees under a power: 286
• Trustees cannot appoint their successors or new trustees unless power is given in the instrument of trust: 287
• Caution necessary in new appointments: 288
• Powers of appointment frequently matters of personal confidence: 289
• Occasions or events upon which new appointments may be made: 290
• An appointment may be made to fill a vacancy occurring before: 291
• PROPERTIES AND INCIDENTS OF THE LEGAL ESTATE: 321
• trustees: 330
• May devise the legal estate But see: 336
• CHAPTER VII: 341
• Rule in New York: 342
• EXECUTORY TRUSTS 357376: 357
• Who may enforce the execution of executory trusts: 367
• Inducements for marriage 369 370 Construction of executory trusts under wills: 369
• The words heirs of the body and issue: 371
• When courts will reform executory trusts: 372
• How courts will direct a settlement of personal chattels: 373
• Whether courts will order a settlement in jointtenancy: 374
• What powers the court will order to be inserted in a settlement: 375
• Settlement will be ordered cy près the intention: 376
• PERPETUITIES AND ACCUMULATIONS 377400: 377
• Executory devises springing and shifting uses: 378
• Growth of the rule against perpetuities: 379
• Application of the rule Indefinite failure of issue: 380
• Applies to the possible vesting of estates not to the actual: 381
• Applies equally to trust and legal estates: 382
• An equitable interest that may not vest within the rule is void 23: 384
• A proper trust to raise money to be applied contrary to the rule Making estates inalienable: 385
• Equitable estates cannot be made inalienable in England 386 a 386 b How they may be made inalienable in some of the United States: 386
• death of the testator: 387
• Unfitness and incapacity 293 Power cannot be exercised if the trust is already in suit in court: 388
• By whom the power may be exercised 295 The power must be strictly followed 296 Who may be appointed to exercise the power 297 Who may b...: 389
• Where agents must be employed: 404
• When responsible for agents and attorneys: 405
• When not responsible: 406
• Difference of liability in law and equity: 407
• Trustees responsible for all mischiefs arising from delegating dis cretionary powers: 408
• Employing agents or attorneys may not be a delegation of authority or discretion: 409
• A sale or devise of the trust estate not a delegation of the trust: 410
• 411 Several trustees constitute but one collective trustee: 411
• 412 413 When they must all act and when: 412
• As to the survivorship of the office of trustee: 414
• General rule as to liability for cotrustees: 415
• May make themselves liable where otherwise they would not: 416
• Trustees must use due diligence in all cases or they will be liable for cotrustees: 417
• Cases of a want of due care and prudence: 418
• In case of collusion or gross negligence a trustee will be liable for acts of cotrustees: 419
• When cotrustees are liable for others upon sales of real estate under a power 420 a Indemnifying of one trustee by another: 420
• As to liability of coexecutors for the acts of each other: 421
• An executor must not enable his coexecutor to misapply: 422
• funds 423 When executors must all join they are not liable for each others acts but they must use due diligence 424 An executor must not allow mo...: 424
• Executors and administrators governed by the same rules: 425
• Rule where coexecutors or cotrustees give joint bonds for security of the administration of the estate: 426
• Trustees can make no profit out of the office: 427
• Cannot buy up debts against the estate or cestui que trust at a profit: 428
• Cannot make a profit from the use of trust funds in business trade or speculation: 429
• 430 431 All persons holding a fiduciary relation subject to the same: 430
• rule 432 Can receive no profit for serving in their professional characters: 432
• POSSESSION CUSTODY CONVERSION INVESTMENT OF TRUST PROPERTY AND INTEREST THAT TRUSTEES MAY BE MADE TO PAY...: 438
• Time within which possession should be obtained: 439
• Diligence necessary in acquiring possession: 440
• The care necessary in the custody of trust property: 441
• In what manner certain property should be kept: 442
• Where the property may be deposited: 443
• 444 445 How money must be deposited in bank: 444
• CHAPTER X: 446
• Trustee must not mix trust property with his: 447
• When a trustee is to convert trust property: 448
• General rule as to conversion: 449
• When a court presumes an intention that property is to be converted: 450
• When the court presumes that the property is to be enjoyed by ces tui que trust in specie: 451
• Of investment: 452
• As to investment in personal securities: 453
• As to the employment of trust property in trade business or specu lation: 454
• Rule as to investments in England: 455
• Rule in the United States: 456
• 457 458 Rule as to real securities: 457
• Of investments in the different States: 459
• 461 Construction where the instruments of trust direct how investments may be made: 460
• Within what time investments must be made: 462
• twentyone: 463
• Must not use the trustmoney in business: 464
• VOL I: 465
• Changing investments: 466
• Acquiescence of cestui que trust in improper investments: 467
• Interest that trustees must pay upon trust funds for any dereliction: 468
• trust estate: 483
• duty: 484
• When courts will alter trusts and when not 391 392 Statutes of various States in relation to perpetuities Accumulations 393 Rule respecting trusts for...: 540
• CHAPTER XIV: 570
• Trustees can set up no claim to the trust estate and ought not to betray the title of the cestui que trust 434 In England upon failure of heirs to the cest...: 571
• When he is directed to invest in a particular manner 470 When he improperly changes an investment 471 When compound interest will be imposed...: 613
• will be applied: 658

Popular passages

Page 68 - June (1677) all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments, 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.

Page 162 - The clear result of all the cases, without a single exception, is, that the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the names of the purchaser and others jointly, or in the name of others without that of the purchaser; whether in one name or several; whether jointly or successive, — results to the man who advances the purchase money.

Page 88 - The cases I think go further to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the Court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust.

Page 226 - ... by virtue of a confidential relation and influence under such circumstances that he ought not, according to the rules of equity and good conscience as administered in chancery, to hold and enjoy the beneficial...

Page 304 - Wherever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relation...

Page 68 - That all grants and assignments of any trust or confidence shall likewise be in writing, signed by the party granting or assigning the same, or by such last will or devise, or else shall likewise be utterly void and of none effect.

Page 445 - ... where any person or persons stand, or be seised, or at any time hereafter shall happen to be seised of and in any honours, castles, manors, lands, tenements, rents, services, reversions, remainders, or other hereditaments, to the use, confidence, or trust of any other person or persons...

Page 56 - Upon the authority of these cases, and of others which are to be found in the books, as well as upon general principles, this court is of opinion that, in a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree.

Page 445 - ... of and in such like estates as they had or shall have in use, trust, or confidence of and in the same...

Page 374 - These and other cases shew that when there appears a general intention in favour of a class, and a particular intention in favour of individuals of a class to be selected by another person, and the particular intention fails, from that selection not being made, the Court will carry into effect the general intention in favour of the class.

Bibliographic information

• Title: A Treatise on the Law of Trusts and Trustees, Volume 1; A Treatise on the Law of Trusts and Trustees, John Melville Gould
• Author: Jairus Ware Perry
• Editor: John Melville Gould
• Edition: 5
• Publisher: Little, Brown, 1899