if it should plainly appear from the whole instrument that the donee is to take beneficially in case the trusts are not declared, no trust will result to the owner or heir.1

3

§ 158. It is to be observed, however, that the intention of the instrument is to be gathered from its general scope; hence, although the words upon trust are very strong evidence of the donor's intention not to confer the beneficial interest upon the donee,2 yet it may be negatived by the context, and the general interpretation of the whole paper; so, if the donee is called a trustee, the term may be shown to apply to one of two funds, and the donee may take a beneficial interest in the other, or it may be so used as to be a mere descriptio persona, and although no beneficiary is named, a trust does not necessarily result to the grantor.5 On the other hand it may appear, from the whole instrument, that the donee is not to take the beneficial interest, although the words upon trust, or trustee, are not used, as where there is a direction that the donee shall be allowed his costs and expenses out of the fund given him, which would be without meaning if he took the whole beneficial interest in the fund. But if the conveyance is by deed for a valuable consideration, the grantee will take the beneficial interest if the trusts fail to be declared, or fail in any way; for there can be no

1 Sidney v. Shelley, 19 Ves. 352. Whether a trust results to a debtor in an unclaimed dividend. Dillaye v. Greenough, 45 N. Y. 438.

2 Hill v. London, 1 Atk. 618; Woollett v. Harris, 5 Md. 452; Sturtevant v. Jaques, 14 Allen, 526; Shaw v. Spencer, 100 Mass. 526.

8 Coningham v. Mellish, Pr. Ch. 31; Dawson v. Clark, 15 Ves. 409; 18 Ves. 247; Hughes v. Evans, 13 Sim. 496; Cook v. Hutchinson, 1 Keen, 42; Dillayev. Greenough, 45 N. Y. 438.

4 Gibbs v. Rumsey, 2 V. & B. 294; Pratt v. Sladden, 14 Ves. 193; Battely v. Windle, 2 Bro. Ch. 31; Bingham v. Stewart, 13 Minn. 106; Pratt v. Beaupre, 13 Minn. 187; Dillaye v. Greenough, 45 N. Y. 438.

Dillayev. Greenough, 45 N. Y. 438.

Saltmarsh v. Barrett, 3 De G., F. & J. 279, 29 Beav. 474.

resulting trusts where the grantee pays a valuable consideration for the estate.1

§ 159. If the gift is made upon a trust, and the trust is insufficiently or ineffectually declared, as, if it is too indefinite, vague, and uncertain to be carried into effect, it will result to the settlor, his heirs, or representatives.2 Whether a trust is insufficiently declared or not, depends, of course, upon the particular construction to be given to each individual deed or will; 3 and so, whether a trust is too vague to be executed, or not, depends upon the interpretation given to each instrument. If the declaration of trust is too imperfect to establish that purpose, and yet plainly shows that the intention was that the donee should not take beneficially, and that the sole purpose of the gift or grant was to carry out the purpose of the trust, which fails, the donee will take in trust for the donor or his heirs; but if it appear, from the whole instrument, that some beneficial interest was intended for the donee, or that he was intended to take beneficially in case the particular purpose fails, no trust will result, but he will take the estate discharged of all burdens.5

§ 160. Where a gift is made upon trusts that are void, in whole or in part, for illegality, or that fail by lapse, or other

1 Brown v. Jones, 1 Atk. 158; Kerlin v. Campbell, 15 Pa. St. 500; Ridout v. Dowding, 1 Atk. 419.

2 Williams v. Kershaw, 5 Cl. & Fin. 111; Ellis v. Selby, 7 Sim. 352; 1 M. & C. 286; Fowler v. Garlike, 1 R. & M. 232; Morice v. Durham, 9 Ves. 399; 10 Ves. 522; Kendall v. Granger, 5 Beav. 300; Vesey v. Jamson, 1 S. & S. 69; Stubbs v. Sargon, 3 M. & C. 500; 2 K. 255; Leslie v. Devonshire, 2 Bro. Ch. 187; James v. Allen, 3 Mer. 17; Sturtevant v. Jaques, 14 Allen, 526; Shaw v. Spencer, 100 Mass. 388.

Ellis v. Selby, 1 M. & K. 298.

4 Ibid.

5 Gibbs v. Rumsey, 2 Ves. & B. 294; Cawood v. Thompson, 1 Sm. & Gif. 409; Lomax v. Ripley, 3 Sm. & Gif. 48; Hughes v. Evans, 13 Sim. 496; Ralston v. Telfair, 2 Dev. Eq. 255.

Turner v. Russell, 10 Hare, 204; Cook v. Stationers' Co. 3 M. & K.

wise, during the life of the donor,1 a trust will result to the donor, his heirs, or legal representatives, if the property is not otherwise disposed of. Thus, where the gift or trust is void by statute, as a disposition in favor of persons or objects prohibited from taking,2 or given at a time, and in a manner forbidden, as in violation of the statutes of mortmain, or similar statutes, or where the gift contravenes some policy of the law, as tending to a perpetuity, or where it fails by the death of the beneficial donee or cestui que trust,5 a trust, to the extent of the estate given, will result to the donor, or his heirs, or legal representatives, if it is not otherwise disposed of. So if a trust for a particular purpose fail, by the dissolution of a corporation, or other organized body, a trust created for their particular benefit will result to the donor's heirs. In all these cases, if the trust arises or results by presumption of law, it may be rebutted as to instruments inter vivos by parol evidence that it was the intention of the

262; Carrick v. Errington, 2 P. Wms. 361; Tregonwell v. Sydenham, 3 Dow, 194; Arnold v. Chapman, 7 Ves. 108; Jones v. Mitchell, 1 S. & S. 290; Page v. Leapingwell, 18 Ves. 463; Pilkington v. Boughey, 12 Sim. 114; Gibbs v. Rumsey, 2 Ves. & B. 294; Stevens v. Ely, 1 Dev. Eq. 493; Dashiel v. Attorney-General, 6 Harris & J. 1; Lemmond v. People, 6 Ired. Eq. 137.

Williams v. Coade, 10 Ves. 300; Ackroyd v. Smithson, 1 Bro. Ch. 503; Spink v. Lewis, 3 Bro. Ch. 335; Muckleston v. Brown, 6 Ves. 63; Davenport v. Coltman, 12 Sim. 610; Cruse v. Barley, 3 P. Wms. 22; Hutcheson v. Hammond, 3 Bro. Ch. 128; Hawley v. James, 5 Paige, 318. 2 Carrick v. Errington, 2 P. Wms. 361; Davers v. Dewes, 3 P. Wms. 43. 8 Attorney-General v. Weymouth, Amb. 20; Jones v. Mitchell, 1 S. & S. 294; West v. Shuttleworth, 2 M. & K. 684; Acts 39 & 40 Geo. IV. c. 98; Eyre v. Marsden, 2 Keen, 564; McDonald v. Bryce, ib. 276; Lemmond v. People, 6 Ired. Eq. 137.

4 Tregonwell v. Sydenham, 3 Dow, 194; Leake v. Robinson, 2 Mer. 363; Marshall v. Holloway, 2 Swans. 432; Southampton v. Hertford, 2 V. & B. 54; Curtis v. Lukin, 5 Beav. 147; Boughton v. James, 1 Call, 26; 1 H. L. Ca. 406; Brown v. Stoughton, 14 Sim. 369; Scarisbrick v. Skelmersdale, 17 Sim. 187; Furrin v. Newcomb, 3 K. & J. 16.

5 Ackroyd v. Smithson, 1 Bro. Ch. 503; Cox v. Parker, 22 Beav. 188. • Easterbrooks v. Tillinghast, 5 Gray, 17.

settlor that the donee should take the surplus beneficially, or the whole estate if the trust failed in toto; 1 but where the trust results, not by presumption of law nor from the facts and circumstances, but from the construction and force of a written instrument, no parol evidence can be introduced to control such construction and force.2

§ 160 a. In England the heir and the next of kin or legal representatives are not the same persons, or they have not the same rights and interests; consequently questions of some difficulty arise as to whether a trust in property results to the heir, or to the next of kin, or the legal representatives. The general rule is, if the property is real estate, that the trust results to the heir; if personal property, to the next of kin under the statutes of distribution, or to the legal representatives. But suppose a testator has devised real estate in trust and directed it to be sold and the proceeds applied to purposes named, and the real estate is converted into money, and the trust fails in whole or in part, or suppose money is given in trust, and there is a direction to invest it in lands, which is done and the trust fails, to whom does the trust result, to the heir as real estate, or to the next of kin as personal property? Such questions are not important in the United States, for the reason that in most, if not all the States, the same persons take both the real and personal estate of an ancestor in the same proportion and with the same rights, and it is comparatively unimportant whether the trust results as real or personal property. There is, however, one question still important in the United States, and that is, does the trust result to the heirs-at-law, or to the residuary devisees or legatees? The donor, settlor, or

1 Ante, §§ 139, 140, 145, 147; Cook v. Hutchinson, 1 Keen, 50. Ante, § 150; Langham v. Sanford, 17 Ves. 442.

See all the English cases cited and the nice distinctions drawn, Lewin on Trusts, 121-132 (5th ed.); Hill on Trustees, 127–143.

testator still retains such an interest in property given by him in trust, that the interest which results upon the failure of the trusts created by him may be devised by him, and the question in each case is whether the resulting interest becomes a part of the residue and passes to the residuary legatee, if there is one, or whether it passes to the heirs. The question may be stated in another form, thus: has the testator died intestate as to the interests which result to him upon a failure of the trusts, or do the provisions of the will embrace such interests and convey them to some person or persons, or class of persons named? The distinction between the heirs and the residuary legatees is that the residuary legatees claim under the will, and the heirs claim dehors the will. All the cases that can arise must depend upon the intention of the donor or settlors and upon the construction of each particular will. If the subject-matter of the bequest that fails is personal estate, the residuary legatee will take all that results, for a general residuary bequest is always held to carry every interest, whether undisposed of in the will, or undisposed of in any event. Therefore it is only where the will contains no residuary clause that the next of kin (or heirs in the United States) can assert any claim. There is, however, this obvious remark to be made: that if the residuum is itself given upon a trust that fails, it of

1 Dawson v. Clarke, 15 Ves. 417; Brown v. Higgs, 4 Ves. 708; 8 Ves. 570; Shanley v. Baker, 4 Ves. 732; Oke v. Heath, 1 Ves. 141; Cambridge v. Rous, 8 Ves. 25; Cooke v. Stationers' Co. 3 M. & K. 264; Bland v. Bland, 2 J. & W. 406; Jones v. Mitchell, 1 S. & S. 298. Sir William Grant said that it must be a very peculiar case indeed in which there can be at once a residuary clause and a partial intestacy unless some part of the residue be ill given. Leake v. Robinson, 2 Mer. 392; King v. Woodhull, 3 Edw. Ch. 79; Swinton v. Egleston, 3 Rich. Eq. 201; Hamberlin v. Terry, 1 Sm. & M. Ch. 589; Johnson v. Johnson, 3 Ired. Eq. 427; Marsh v. Wheeler, 2 Edw. Ch. 156; Com. v. Nase, 1 Ashm. 242; Woolmer's Est. 3 Whart. 879; Taylor v. Lucas, 4 Hawks, 215; Pool v. Harrison, 18 Ala. 515; Vick v. McDaniel, 3 How. (Miss.) 337; Bryson v. Nichols, 2 Hill, Ch. 113.