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

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Little, Brown,, 1882 - Electronic books
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Contents

Simple and special trusts
14
Ministerial and discretionary trusts
15
Capacity and power of infants to create trusts 34 The marriage settlements of infants 35 Of the ability of lunatics to create trusts 36 Of conveyances ...
18
Possibilities choses in action expectancies and property not at the time in esse may be assigned in trust 69 Choses in action and expectancies that cann...
19
A mixed trust and power and a power annexed to a trust
20
Legal and illegal trusts
21
Public and private trusts
22
The general nature of trusts 2 The technical nature of trusts and their origin in the fidei commissa of the Roman law CHAPTER II
23
2427 Express trusts implied trusts resulting trusts and constructive trusts
24
2837 Who may create a trust 28 All persons competent to contract or make wills may create trusts
28
The king may create trusts
29
The State may create trusts and so may all its officers
30
Corporations may create trusts
31
The power of married women to create trusts
32
AT COMMON LAW SINCE THE STATUTE FRAUDS AND IN PERSONAL PROPERTY AND HEREIN OF VOLUNTARY CONVEYANCES OR S...
57
TRUST
59
effect
66
Division of trusts according to the manner of their creation
73
7477 Trusts at common law 74 At common law a writing not necessary to convey land
74
Uses might also be created without writing and so may trusts in States where the statute of frauds is not in force
75
But if anything remains to be done to complete the trust it will not be car ried into effect if without consideration
97
Whether a trust is completely created not a question of fact in each case
99
Trust for a stranger without consideration not completed without transfer of the legal title
100
But if the legal title cannot be transferred a different rule will apply
101
If the subject of the proposed trust is an equitable interest the legal title need not be transferred
102
The instrument of trust need not be delivered
103
If once perfected cannot be destroyed though voluntary
104
Notice not necessary to trustee or cestui que trust
105
S 106 107 Voluntary settlements upon wife and children 108 When they will not be enforced
108
Tendency of the rule in the United States
109
Marriage a valuable as well as meritorious consideration
110
Effect of a seal CHAPTER IV
111
117 118 Implied trusts from directions as to the maintenance of children or others
117
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 to sell or settle estates
122
A direction to employ certain persons does not raise an implied trust
123
124165
124
Divisions of this kind of trust
125
Resulting trust where the purchasemoney is paid by one and deed is taken
126
to another
134
Resulting trust where trust funds are used to purchase property and title taken in the name of another 128 In what cases a trust results and when a tru...
136
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 the beneficial interest
150
Every case must depend upon its particular writing and circumstances
151
Instances and illustrations
152
153 154 If there is an intention to benefit the donce there is no resulting trust
153
Gifts to executors may create resulting trusts
155
Resulting trusts do not arise upon gifts to charitable uses
156
A gift upon trust or to a trustee and no trust declared
157
Always a matter of intention to be gathered from the whole instrument
158
Where a special trust fails it will result
159
Where a special trust fails from illegality or lapses it results 160 a To whom it results
160
161 162 Whether a trust results from a voluntary conveyance without considera
161
General nature of constructive trusts They arise from fraud
166
Jurisdiction of equity over them and the relief given by converting the of fending party into a trustee
167
Classification of constructive trusts
168
tion 163 Equity does not favor such conveyances they may be void for fraud but no trust results
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
Courts will relieve where acts are fraudulently prevented from being done
181
illustrations 182 Trust established where a party fraudulently prevents a will from being made in anothers favor 183 Trust established in odium spol...
190
Trusts arising from the frauds of third persons 212 Frauds upon third persons as creditors 213 Conveyances by man or woman on the point of marr...
191
Duress oppression and distress
192
Where several of these circumstances are found combined
193
Frauds that arise by construction from the fiduciary relations of parties
194
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
Personal property
225
Constructive trusts may be proved by parol statute of frauds does not apply
226
The right to set aside a conveyance for fraud is an equitable estate that may be conveyed and devised
227
228230 Statute of frauds and the time within which steps must be taken to avoid a fraudulent conveyance
228
TRUSTS THAT ARISE BY EQUITABLE CONSTRUCTION IN THE ABSENCE OF FRAUD 231247 a 231 Trust by equitable construction Illustrati...
231
Vendors lien for the purchasemoney of this description States in which it exists
232
This lien does not contravene the statute of frauds
233
The nature of the interest of the vendor under this lien
234
Between trustee and cestui que trust
235
238 239 The parties between whom the lien exists
238
Trust by construction where a conveyance is made that cannot operate at
240
Constructive trust where trust property is transferred by gift from the trustee
241
Constructive trust where a corporation distributes its capital stock without
242
Rule does not apply to dry trustees 200 Guardians and wards 201 Parents and children
245
202 203 Attorney and client
247
Rule applies to all confidential advisers 205 Administrators and executors
251
206 Principal and agent
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
Acceptance of the trust how and when it should be accepted
259
What is an acceptance and its effect
260
How an acceptance may be shown
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
Where a trustee may disclaim
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
Where a legacy or other benefit is given to the trustee or executor
272
Effect of a disclaimer
273
How a trustee may be removed or resign
274
Of the vesting of the property in the new trustees
284
Duty of trustee where all consent to his discharge 286 Of the number of trustees
286
Trustees cannot appoint their successors or new trustees unless power is given in the instrument of trust
287
288 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 the death
291
paying its debts 243 A person holding the legal title as security is a constructive trustee 244 Executor indebted to the testators estate is a constructive...
292
Power cannot be exercised if the trust is already in suit in court
293
By whom the power may be exercised
294
The power must be strictly followed
295
Where a married woman or an infant may exercise the power
296
Who may be appointed under a power
297
Where trustees take and hold no estate although an express gift is made
298
CHAPTER VIII
319
Where a testator has contracted to sell an estate
342
343 344 Rights of the last surviving trustee and his heirs or executors 343 Trust property does not pass to bankrupt trustees assignee
343
A disseizor of a trust estate is not bound by the trust
346
347 348 Merger of the equitable and legal titles
347
349 350 Presumption of a conveyance or surrender by trustee to cestui que trust
349
351353 Where the presumption will be made and where
351
Must be some evidence on which to found the presumption
354
Is made in favor of an equitable title not against
355
357359 Nature of an executory trust The rule in Shelleys case
357
Distinction between marriage articles and wills
360
Construction of marriage articles and their correction
361
Where strict settlements will not be ordered
362
363 364 Settlement of personal property
363
Construction of marriage settlements
365
SECTION
366
Who may enforce the execution of executory trusts
367
Inducements for marriage
368
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
Definitions of a perpetuity
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
383
Distinction between private trusts and charitable trusts
384
may take an estate commensurate with the purposes of the trust where it
385
Equitable estates cannot be made unalienable 386 a 386 6 How they may be made inalienable
386
Exception in the case of married women
387
How trusts can be limited so that cestui que trust cannot alienate
388
Limitation of personal estate to such tenant in tail as first attains twentyone
389
390 When courts will alter trusts and when
390
391 392 Statutes of various states in relation to perpetuities
391
Rule respecting trusts for accumulations
393
Construction of the Thellusson
395
Rule against accumulations when it applies and when
396
Application of the income in cases of illegal directions to accumulate
397
Statutes in various States as to accumulations
398
Accumulations for charitable purposes
399
Accumulations in cases of life insurance CHAPTER XIV
400
A trustee having accepted the office is bound to discharge its duties
401
He cannot delegate his authority
402
Not responsible if he follow directions in employing agents
403
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
Employing agents or attorneys may not be a delegation of authority or dis cretion
409
A sale or devise of the trust estate not a delegation of the trust
410
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
CHAPTER XI
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
419
Trustees can set up no claim to the trust estate and ought not to betray the title of the cestui que trust
433
In England upon failure of heirs to the cestui que trust trustee may hold real estate to his own
434
Speculative questions
435
In the United States the interest of the cestui que trust in real estate escheats
436
cotrustees
437
Duty of trustee to reduce the trust property to possession
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
S 444 445 How money must be deposited in bank 446 Within what time trustee should wind up testators establishment
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 cestui 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 speculation
454
Rule as to investments in England
455
Rule in the United States 456 n Confederate securities
456
457 458 Rule as to real securities
457
Of investments in the different States
459
460 461 Construction where the instruments of trust direct how investments
460
be made 462 Within what time investments must be made
462
Trustees must not mingle their own money in investments
463
Must not use the trust money in business
464
Original investments and investments left by the testator
465
Changing investments
466
Acquiescence of cestui que trust in improper investments
467
Interest that trustees must pay upon trust funds for any dereliction of duty
468
When he is directed to invest in a particular manner
469
When he improperly changes an investment
470
When compound interest will be imposed and when other rules will be applied
471
Rule where an accumulation is directed
472
When cotrustees are liable for others upon sales of real estate under a power 421 As to liability of coexecutors for the acts of each other 422 An exe...
504
Directors of corporations
536
VOL I
545
Copyright

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Common terms and phrases

Popular passages

Page 197 - Fraud, indeed, in the sense of a court of equity properly includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another.
Page 64 - 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 64 - 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 386 - ... 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 324 - 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.
Page 394 - And therefore on a feoffment to A and his heirs, to the use of B and his heirs...
Page 224 - Secondly, it may be apparent from the intrinsic nature and subject of the bargain itself; such as no man in his senses, and not under delusion, would make on the one hand, and as no honest and fair man would accept on the other; which are inequitable and unconscientious bargains, and of such even the Common Law has taken notice.
Page 386 - ... for term of life or for years or otherwise, or any use confidence or trust in remainder or reverter, shall from henceforth stand and be seised deemed and adjudged in lawful seisin estate and possession of and in the same...
Page 517 - ... it is no breach of trust to permit one of the trustees to receive all, or the most part of the profits, it falling out many times that some of the trustees live far from the lands, and are put in trust out of other respects than to be troubled with the receipt of the profits.
Page 496 - A contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined before they attain their full age.

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