perhaps, upon thorough consideration, would not be acted upon. But the rule would be strictly confined to a wife and

there is such an instrument; but whenever there is such a power, it has been executed.' Chapman v. Gibson, 3 Bro. Ch. 230. And see Ellis v. Nimmo, Lloyd & Goold, 341.

66

"The ground, upon which the courts aid the defective execution of powers, will be found upon examination to be precisely that upon which it supplies the surrender of copyholds. The power to the extent to which it may be exercised is regarded in equity as part of the dominion, as a portion of the actual estate; and the donee of it is pro tanto the bonâ fide owner of the property, and the person taking in default of the donee's disposition is a quasi heir. Holmes v. Coghill, 12 Ves. 213; Coventry v. Coventry, at the end of Francis's Maxims in Equity. The only distinction between an actual heir and the person taking in default of the power is this, that the former is so constituted by course of law, while the latter is a quasi heir specially appointed by the settlor. Thus in aiding the defective execution of powers the court says, as in supplying surrenders: the donee of the power, who is the owner of the property to the extent of that power, has indicated an intention of providing for a meritorious object, and the person taking in default of the power, who is a kind of heir, shall not, through want of form, run away with the estate from those who are much better entitled. It is clear that an agreement founded on meritorious consideration will not be executed as against the settlor himself. Antrobus v. Smith, 12 Ves. 39. Indeed relief in such a case would offend against the security of property; for if a man improvidently bind himself by a complete alienation, the court will not unloose the fetters he hath put upon himself, but he must lie down under his own folly. Villers v. Beaumont, 1 Vern. 101; but if the court interpose where the act is left incomplete, what is it but to wrest property from a person who has not legally parted with it?• Another observation that suggests itself is, that during the life of the settlor the ground of the meritorious consideration scarcely seems to apply; for can it be thought to be the duty of a husband to endow his wife, during the coverture, with a separate and independent provision? or is a parent bound by any natural or moral obligation to impoverish himself (for such a case may be supposed) for the purpose of enriching a child? or has a court of equity the jurisdiction to appropriate a specific fund to creditors, when the debtor is still living? the presumption of law is that the creditor can obtain satisfaction of his debt by the usual legal process. It is after the decease of the settlor that meritorious consideration becomes such a powerful plea in a court of equity. The wife and children have then lost the personal support of the husband and parent, and who can have a juster claim to the inheritance of the property? The creditor is then barred, by act of God, of his remedy against the debtor; and, should the assets prove insufficient, how but by the assistance of equity can he hope

child, and would not be extended to brothers, sisters, nephews, or parents,1 and probably not to grandchildren,2 nor to illegitimate children.3

§ 110. Marriage is a valuable consideration, therefore executory agreements, made in contemplation of marriage, will be enforced if the marriage actually takes place.1

§ 111. A contract under seal imports a consideration, and an action at law can be maintained upon such a contract. And it has sometimes been supposed that a court of equity would enforce a contract in favor of a volunteer whenever an action of law could be sustained upon the instrument.5 But to be satisfied in his demand? Another objection to the execution of a voluntary contract against the settlor himself, at least in respect of land, is the principle expressed by Lord Cowper, that equity, like nature, will do nothing in vain. Seeley v. Jago, 1 P. Wms. 389; Billingham v. Lawthen, 1 Ch. Ca. 243; Pulvertoft v. Pulvertoft, 18 Ves. 99; as if money be directed to be converted into land, or land into money, the devisee or legatee may elect to take the property in the original state, for, should the court direct an actual conversion, the devisee or legatee might immediately annul the order by resorting to a reconversion; and so, should the court decree a specific performance of a contract regarding realty for meritorious consideration, the property the next moment might be disposed of to a bona fide purchaser, and the settlement become nugatory. Again, if the imperfect gift can be enforced against the settlor himself, then the equitable right must form a lien upon the property; and, upon the death of the settlor, his heir would, in all events, be bound to convey: but even in aiding the defective execution of powers and supplying surrenders of copyholds, a previous inquiry by the master is invariably directed whether the heir of the settlor has any other adequate provision."

1 Downing v. Townsend, Amb. 592; Buford's Heirs v. M'Kee, 1 Dana, 107; Hayes v. Kershaw, 1 Sand. Ch. 258.

2 Buford's Heirs v. M'Kee, 1 Dana, 107.

8 Fursaker v. Robinson, Pr. Ch. 475; but see Bunn v. Winthrop, 1 Johns. Ch. 329.

4 Duval v. Getting, Gill, 38; Gough v. Crane, 3 Md. Ch. 119; Crane v. Gough, 4 Md. Ch. 316; Hale v. Lamb, 2 Ed. 271; Stone v. Stone, L. R. 5 Ch. 74.

5 Beard v. Nutthall, 1 Vern. 427; Williamson v. Coddrington, 1 Ves. 511; Hervey v. Audland, 14 Sim. 531; Husband v. Pollard and Randal v. Ran

equity never enforced a voluntary covenant, though under seal, to stand seized to the uses of a stranger; and it is now settled, in England, that equity will not enforce a voluntary contract, although under seal.1 Equity will not decree the specific performance of a contract, where a court of law would give only nominal damages. In the United States, however, considerable stress is laid upon the solemnity of a seal. The courts say that they will not execute a voluntary executory agreement unless it is under seal,2 thereby implying, that an executory contract under seal will be enforced, though voluntary. And in Kentucky, where the distinction between sealed and unsealed instruments is now abolished, a voluntary executory contract not under seal has been upheld.3 But there is the same uncertainty whether a seal would render a voluntary executory contract binding in equity, as there is whether a mere meritorious consideration will enable the court to enforce the settlement. Generally, in America, very little regard is paid to mere formalities, and a seal is regarded in most States as a mere formality. A mere scratch or scroll of the pen passes for a seal, and in some States they are abolished altogether. Why any effect should be given to a form that has ceased to be a solemnity would be hard to explain on principle, and is equally uncertain upon the authorities.

dal, 2 P. Wms. 467; Vernon v. Vernon, ib. 594; Goring v. Nash, 3 Atk 186; Stephens v. Trueman, 1 Ves. 73; Wiseman v. Roper, 1 Ch. R. 158.

1 Hale v. Lamb, 2 Ed. 294; Fursaker v. Robinson, Pr. Ch. 475; Evelyn v. Templar, 2 Bro. Ch. 148; Colman v. Sarel, 3 Bro. Ch. 12; Jefferys v. Jefferys, 1 Cr. & Ph. 138; Meek v. Kettlewell, 1 Hare, 464; Fletcher v. Fletcher, 4 Hare, 74; Newton v. Askew, 11 Beav. 145; Dillon v. Coppin, 4 M. & Cr. 647; Kekewich v. Manning, 1 De G., M. & G. 188; Dening v. Ware, 22 Beav. 184.

2 Kennedy v. Ware, 1 Barr, 445; Caldwell v. Williams, 1 Bailey, Eq. 175; Dennison v. Goehring, 7 Barr, 175; McIntire v. Hughes, 4 Bibb, 186. 8 Mahan v. Mahan, 7 B. Mon. 579.

CHAPTER IV.

IMPLIED TRUSTS.

§ 112. The manner in which trusts are implied, and the words from which they are implied.

§ 113. Words from which a trust will not be implied.

§§ 114-116. Rules by which trusts will or will not be implied.

§§ 117, 118. Implied trusts from directions as to the maintenance of children or others.

§ 119. When trusts for maintenance are not implied.

§ 120. Rules that govern implied trusts.

§ 121. Trusts arising by implication from the provisions of a will.

§ 122. Implied trusts arising from contracts to sell or settle estates.

§ 123. A direction to employ certain persons does not raise an implied trust.

§ 112. IMPLIED trusts are those that arise when trusts are not directly or expressly declared in terms, but the courts, from the whole transaction and the words used, imply or infer that it was the intention of the parties to create a trust.1 Courts seek for the intention of the parties, however informal or obscure the language may be; and if a trust can fairly be implied from the language used as the intention of the parties, the intention will be executed through the medium of a trust. Implied trusts may arise out of agreements and settlements inter vivos 2 where there is a sufficient consideration; but they more frequently arise from the construction of wills where a consideration is implied. Thus, if a testator make an absolute gift to one person in his will, and accompany the gift with words expressing a "belief," 3" desire," 4 “will,” 5 “re

1 Lane v. Lane, 8 Allen, 350. 2 Liddard v. Liddard, 28 Beav. 266. Cary v. Cary, 2 Sch. & Le. 189; Paul v. Compton, 8 Ves. 380. Harding v. Glyn, 1 Atk. 469; Mason v. Limburg and Vernon v. Vernon, Amb. 4; Trot v. Vernon, 8 Vin. Abr. 72; Pushman v. Filliter, 3 Ves. 7; Brest v. Offley, 1 Ch. R. 246; Bonser v. Kinnear, 2 Gif. 195; Cruwys v. Colman, 9 Ves. 319; Shaw v. Lawless, Lloyd & Goold, 154, 5 Cl. & Fin. 129; Lloyd & Goold, Tem. Plunket, 559.

5 Eales v. England, Pr. Ch. 200; Clowdsley v. Pelham, 1 Vern. 411.

quest,' "1" will and desire; "2 or, if he "will and declare," 3 "wish and request,' "4" wish and desire," 5" entreat," 6" most heartily beseech," 7"order and direct," 8" authorize and empower,"9" recommend," 10" hope," 11" do not doubt," 12 “be well assured," 13" confide," 14 have the fullest confidence," 15 "trust and confide," 16 "have full assurance and confident hope; or, if he make the gift "under the firm convic

"17

1 Pierson v. Garnet, 2 Bro. Ch. 38, 226; Eade v. Eade, 5 Mad. 118; Moriarty v. Martin, 3 Ir. Ch. 26; Bernard v. Minshull, 1 Johns. 276. 2 Birch v. Wade, 3 Ves. & B. 198; Forbes v. Ball, 3 Mer. 437. 3 Gray v. Gray, 11 Ir. Ch. 218.

4 Foley v. Parry, 5 Sim. 139; 2 M. & K. 138; Cook v. Ellington, 6 Jones, Eq. 371.

5 Liddard v. Liddard, 28 Beav. 266; Cockrill v. Armstrong, 31 Ark. 580.

6 Prevost v. Clarke, 2 Mad. 458; Meredith v. Heneage, 1 Sim. 543; Taylor v. George, 2 Ves. & B. 378.

7 Meredith v. Heneage, 1 Sim. 553.

8 Cary v. Cary, 2 Sch. & Le. 189; White v. Briggs, 2 Phill. 583.

9 Brown v. Higgs, 4 Ves. 708; 5 Ves. 495; 8 Ves. 561; 18 Ves. 192. 10 Tibbits v. Tibbits, Jac. 317; 19 Ves. 656; Harwood v. West, 1 Sim. & S. 387; Paul v. Compton, 8 Ves. 380; Malim v. Keighley, 2 Ves. Jr. 333, 529; Malim v. Barker, 3 Ves. 150; Meredith v. Heneage, 1 Sim. 543; Kingston v. Lorton, 2 Hog. 166; Cholmondeley v. Cholmondeley, 14 Sim. 590; Hart v. Tribe, 18 Beav. 215; Meggison v. Moore, 2 Ves. Jr. 630; Sale v. Moore, 1 Sim. 534; Ex parte Payne, 2 Y. & Coll. 636; Randal v. Hearle, 1 Anst. 124; Lefroy v. Flood, 4 Ir. Ch. 1; Cunliffe v. Cunliffe, Amb. 686, distinguished in Pierson v. Garnet, 2 Bro. Ch. 46; Malim v. Keighley, 2 Ves. Jr. 333; Pushman v. Filliter, 3 Ves. 7.

11 Harland v. Trigg, 1 Bro. Ch. 142; Paul v. Compton, 8 Ves. 380. 12 Parsons v. Baker, 18 Ves. 476; Taylor v. George, 2 Ves. & B. 378; Malone v. O'Connor, Lloyd & Goold, 465; Sale v. Moore, 1 Sim. 534.

18 Macey v. Shurmer, 1 Atk. 389; Anst. 520; Ray v. Adams, 3 M. & K. 237.

14 Griffiths v. Evans, 5 Beav. 241; Shepherd v. Nottidge, 2 J. & H. 766.

15 Shovelton v. Shovelton, 32 Beav. 143; Wright v. Atkyns, 17 Ves. 255; 19 Ves. 299; G. Cooper, 111; T. & R. 143; Webb v. Wools, 2 Sim. (N. s.) 267; Palmer v. Simmonds, 2 Dr. 225; Warner v. Bates, 98 Mass. 274. 16 Wood v. Cox, 1 Keen, 317; 2.My. & Cr. 684; Pilkington v. Boughey, 12 Sim. 114.

17 Macnab v. Whitbread, 17 Beav. 299.