§ 103. The instrument of trust need not be delivered.

§ 104. If once perfected cannot be destroyed, though voluntary.

§ 105. Notice not necessary to trustee or cestui que trust.

§§ 106, 107. Voluntary settlements upon wife and children.

§ 108. When they will not be enforced.

§ 109. Tendency of the rule in the United States.

§ 110. Marriage a valuable as well as meritorious consideration. § 111. Effect of a seal.

§ 73. HAVING considered who may be the parties to a trust, and what may be the subject-matter of it, it is now to be considered in what manner a trust may be created, or how it may arise. Trusts are divided in this respect into direct or express trusts, implied, resulting, and constructive trusts. Direct or express trusts are created by the direct or express words of a grantor or settlor. Implied, resulting, and constructive trusts arise by operation of law upon the transactions of the parties, and they will be hereafter discussed. This chapter will treat of the creation of direct or express trusts. In this connection it will be necessary to inquire: (1) how trusts were created in lands at common law prior to the statutes of frauds and of wills; (2) how trusts are created in lands since the statutes; (3) how trusts may be created in personal property; and (4) the effect of a voluntary conveyance or declaration of trust.

§ 74. At common law a deed in writing was not necessary to transfer land. What was called a feoffment was the common and earliest mode of conveyance. The feoffment was a short and simple charter, and was accompanied by livery of seizin; the feoffor went upon the land in the presence of the freeholders of the neighborhood with the charter, and made a manual delivery to the feoffee of some symbolical thing in the name of delivering seizin, or ownership and possession of all the lands named in the charter. But not even this deed or charter was necessary. The land could be conveyed by mere livery of seizin in the presence of the freeholders of the neighborhood, who might be called upon to witness the act.

The feoffment and livery of seizin operated upon and transferred the possession, and it barred the feoffor from all future right or possibility of right in the land, and vested an estate in freehold in the feoffee.1

§ 75. It has been a mooted question whether at common law uses could be raised by parol, or even by deed without seal, upon a conveyance of lands.2 But there seems to be no good reason for the doubt. As the estate itself could be transferred without writing, it would seem to follow that uses declared at the time in the presence of witnesses might be effectually established. Mr. Sanders says that in their commencement uses were of a secret nature, and were usually created by a parol declaration. Mr. Lewin says, that trusts like uses are in their own nature averrable, i. e., may be declared by word of mouth without writing, in the absence of a statute requiring it; as if an estate had been conveyed unto and to the use of A. and his heirs, a trust might have been raised by parol in favor of B. Lord Chief-Baron Gilbert reconciled most of the conflicting cases by stating the law thus: "At common law a use might have been raised by words upon a conveyance that passed the possession by some solemn act, as a feoffment; but where there was no such act, then it seems a deed declaratory of the use was necessary; for as a feoffment might be made at common law by parol, so might the uses be declared by parol. But where a deed was necessary for passing the estate itself, it was also requisite for the declaration of the uses. Thus a man could not covenant

1 4 Kent, 480, 481; 2 Sand. Uses and Trusts, 1-8.

2 2 Story, Eq. Jur. § 971; Hill on Trustees, 55.

1 Sand. on Uses, 14, 218 (2d Am. ed.).

4 Lewin on Trusts, 41. See Fordyce v. Willis, 2 Bro. Ch. 587; Benbow v. Townsend, 1 My. & K. 506; Bayley v. Boulcott, 4 Russ. 347; Crabb v. Crabb, 1 My. & K. 511; Kilpin v. Kilpin, ib. 520; Bellasis v. Compton, 2 Vern. 294; Thruxton v. Attorney-General, 1 Vern. 341.

2

to stand seized to uses without a deed; but a bargain and sale by parol has raised a use without." Lord Thurlow observed that he had been accustomed to consider uses as averrable; but perhaps when looked into, the cases may relate to feoffment, and not to conveyances by bargain and sale or lease and release." And Duke says expressly, "that when the things given may pass without deed, then a charitable use may be averred by witnesses; but, where the things cannot pass without deed, there charitable uses cannot be averred without a deed proving the uses.' "8 This question is almost purely speculative in the United States, where the statute of frauds is perhaps universally adopted, and all conveyances of land and of interests in land must be by deed acknowledged and recorded; but it may arise when questions arise upon transactions prior to the passage of the statute, as it arose in Ohio upon a conveyance before 1810, the time when the statute of frauds was adopted in that State; and it was determined that a trust in land could be created, at common law, by parol. The same question arose in Connecticut, and it was denied that at common law a trust in lands could be raised by parol. The court said that the rules of evidence as well as the statute prevented it.5 In some other States the statute, or at least the seventh section of the statute, has not been adopted; and in those States it has been determined that trusts in land can be proved by parol, as in Texas, North

1 Gilbert on Uses, 270; Adlington v. Cann, 3 Atk. 141. 2 Fordyce v. Willis, 3 Bro. Ch. 587.

8 Duke on Char. 141; Adlington v. Cann, 3 Atk. 141.

Fleming v. Donohoe, 5 Ohio, 250; but see Starr v. Starr, 1 Ohio, 321; Ready v. Kearsley, 14 Mich. 215; McIntire v. Skinner, 4 Greene,

89.

5 Dean v. Dean, 6 Conn. 287. Contra, Ready v. Kearsley, 14 Mich. 215.

• Miller v. Thatcher, 9 Tex. 482; Hale v. Layton, 16 Tex. 262; Bailey v. Harris, 19 Tex. 102; Osterman v. Baldwin, 6 Wallace, 116; Leakey v. Gunter, 25 Tex. 400; Grooves v. Rush, 27 Tex. 231; Dunham v. Chatham, 21 Tex. 231; Creney v. Dupree, 21 Tex. 20.

Carolina,1 Tennessee,2 and Virginia. In Pennsylvania, under the act of 1799, it was determined that trusts in land might be created by parol. The statute was amended, however, in 1851.5 In Kentucky, the seventh section was omitted; but the courts treat all parol agreements that would create a trust as agreements for the sale or purchase of some interest in land, and therefore void as within the fourth section of the statute. In nearly all the other States the statute of frauds was substantially re-enacted at an early day in its full extent, and in those States it has not since been an open question whether parol trusts could be created."

§ 76. It must also be observed that if a trust is declared in writing, courts never permit parol proof of a trust to contradict an intention expressed upon the face of the instrument itself, for that would be to allow parol evidence to vary,

1 Fay v. Fay, 2 Hayw. 131; Shelton v. Shelton, 5 Jones, Eq. 292; Rigges v. Swann, 6 Jones, Eq. 118; McLaurin v. Fairly, 6 Jones, Eq. 375.

2 Thompson v. Thompson, 1 Yerg. 100; McLanahan v. McLanahan, 6 Humph. 99; Haywood v. Ensley, 8 Humph. 460; Wilburn v. Spofford, 4 Sneed, 705.

8 Bank of United States v. Carrington, 7 Leigh, 576; Walraven v. Lock, 2 P. & H. 549; Lockwood v. Canfield, 20 Cal. 126; Hidden v. Jordan, 21 Cal. 92.

4 German v. Gabbald, 3 Binn. 302; Wallace v. Duffield, 2 S. & R. 521; Slaymaker v. St. Johns, 5 Watts, 27; Murphy v. Hubert, 7 Barr, 420; Tritt v. Crotzer, 13 Pa. St. 452; Wetherell v. Hamilton, 15 Pa. St. 195; Money v. Herrick, 18 Pa. St. 128; Blyholder v. Gilson, 18 Pa. St. 134. See Freeman v. Freeman, 2 Pars. Eq. 81.

Shoofstall v. Adams, 2 Grant's Cas. 209; Barnett v. Dougherty, 32 Pa. St. 371.

Parker v. Bodley, 4 Bibb, 102; Childs v. Woodson, 2 Bibb, 72.

See Brown's Statute of Frauds, §§ 79-82; Anding v. Davis, 38 Miss. 574; Harper v. Harper, 5 Bush. 177; Wolf v. Corley, 30 Md. 356; Eaton v. Eaton, 35 N. J. (L.) 290; Knox v. McFarren, 4 Col. 586.

8 Lewis v. Lewis, 2 Ch. R. 77; Finch's Cas. 4 Inst. 86; Childers v. Childers, 3 K. & J. 310; 1 De G. & J. 482; Fordyce v. Willis, 3 Bro. Ch. 587; Leman v. Whitley, 4 Russ. 423; Lloyd v. Inglis, 1 Des. 333; Sims v. Smith, 11 Ga. 198; Harris v. Barnett, 3 Grat. 339; Dickenson v. Dickenson, 2 Murph. 279; Steere v. Steere, 5 Johns. Ch. 1.

contradict, or annul a written instrument; nor is it necessary, in order to exclude evidence, that the beneficial estate should be expressly conferred upon the grantee of the legal estate, for a trust cannot be raised by parol if, from the nature of the instrument or from any circumstance of evidence appearing upon the face of it, an intention can be clearly implied of making the holder of the legal estate also the holder of the beneficial estate. Thus a trust cannot be proved by parol where a valuable consideration was paid from the grantor's own money. But where A. agreed to purchase land for B., and purchased it and took an absolute title to himself, it was held that B., not being privy to the deed, was not bound by it, and might prove a trust by parol.3

§ 77. If a trust is once effectually created by parol, it cannot subsequently be revoked or altered by the party creating it, for it is governed by the same rules that govern trusts created by writing. And if a parol trust has been executed it cannot be revoked, and if money has been paid upon it, it cannot be recovered back.5 The declarations of the grantor, to create a trust, must be prior to, or contemporaneous with, the conveyance, for it would be against reason and the rules

1 Ibid.; Lewin, 42, 5th ed.; Gilbert on Uses, 56, 57; Pilkington v. Bailey, 7 Bro. P. C. 526; Dean v. Dean, 6 Conn. 285; Hutchinson v. Tindall, 2 Green, Ch. 257; Starr v. Starr, 1 Ohio, 321; Movan v. Hays, 1 Johns. Ch. 343; Philbrooke v. Delano, 29 Me. 410; Clagett v. Hall, 9 Gill & J. 80. See notes to Woollam v. Hearn, 2 Lead. Ca. Eq. 404; Irnham v. Child, 1 Bro. Ch. 92; Bartlett v. Pickersgill, 1 Ed. 515.

2 Ibid.

3 Strong v. Glasgow, 2 Murph. 289; Squire's App. 70 Pa. St. 266. Kilpin v. Kilpin, 1 M. & K. 531; Adlington v. Cann, 3 Atk. 151; Freeman v. Freeman, 2 Pars. Eq. 81; Crabb v. Crabb, 1 M. & K. 511; Greenfield's Est., 14 Pa. St. 489; Kirkpatrick v. McDonald, 11 Pa. St. 387; Walgrave v. Tibbs, 2 K. & J. 313; Lee v. Ferris, 2 K. & J. 357; Russell v. Jackson, 10 Hare, 204; Lomax v. Ripley, 3 Sm. & Gif. 48; In re Dunbar, 2 Jon. & La. 120; Brown v. Brown, 12 Md. 87; Tritt v. Crotzer, 13 Pa. St. 451.

Eaton v. Eaton, 35 N. J. (L.) 290.