of evidence to allow a man who has parted with all interest in an estate to charge it with any trust or incumbrance after such conveyance; nor can the cestui que trust give his own declarations in evidence to create a trust in his favor; but where parties may be witnesses, he can testify to the facts like any other witness; and if the circumstances are such as to raise a resulting or implied trust upon the conveyance, the person entitled to such beneficial interest has the right at any time to declare the trust.2 The declarations of a trustee can be given in evidence to show how he held the estate; 8 that is, in those States where the trust may be proved by parol. But these declarations must be clear and explicit, and point out with certainty both the subject-matter of the trust and the person who is to take the beneficial interest. Casual and indefinite expressions of mere inchoate intentions, not carried into effect, are insufficient to raise a trust. If a pension from the government is granted to A., a trust cannot be raised by parol in favor of B., for a pension is conferred as an honor, and is founded upon the personal services and merits of the annuitant.5

1 Adlington v. Cann, 3 Atk. 145; 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; Brown v. Brown, 12 Md. 87; Tritt v. Crotzer, 13 Pa. St. 451; In re Dunbar, 2 Jon. & La. 120; Ivory v. Burns, 56 Pa. St. 303; Bennett v. Fulmer, 49 Pa. St. 155; Knox v. McFarren, 4 Col. 586. See Chapman v. Wilbur, 3 Oreg. 326, for a particular

case.

2 Bellasis v. Compton, 2 Vern. 294; Lee v. Huntoon, 1 Hoff. Ch. 447; Harris v. Barnett, 3 Grat. 339; Reid v. Reid, 12 Rich. Eq. 213.

3 Ambrose v. Ambrose, 1 P. Wms. 322; Gardner v. Rowe, 2 S. & S. 346; 5 Russ. 258; Wilson v. Dent, 3 Sim. 385; Willard v. Willard, 56 Pa. St. 119; Dollinger's App. 71 Pa. St. 425.

4 Kilpin v. Kilpin, 1 M. & K. 520; Benbow v. Townsend, 1 M. & K. 506; Bayley v. Boulcott, 4 Russ. 315; Harrison ». McMennomy, 2 Edw. Ch. 251; Slocumb v. Marshall, 2 Wash. C. C. 398; Sidle v. Walters, 5 Watts, 389; Mercer v. Stock, 1 S. & M. Ch. 479; Hurst v. McNeil, 1 Wash. C. C. 70; Smith v. Patton, 12 W. Va. 541; Childs v. Wesleyan Cemetery Ass. 4 Mo. App. 74.

5 Fordyce v. Willis, 3 Bro..Ch. 587.

§ 78. The seventh section of the statute of frauds enacted that all declarations or creations of trusts or confidences in any lands, tenements, or hereditaments, " shall be manifested and proved by some writing signed by the party who is by law to declare such trust, or by his last will in writing," or else they shall be utterly void and of none effect.

Sec. 8. Provided always that where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by the implication or construction of law, or be transferred or extinguished by an act or operation of law, then and in every such case such trust or confidence shall be of like force as the same would have been if this statute had not been made, anything hereinbefore to the contrary notwithstanding.

Sec. 9. All grants or 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.1

1 29 Car. II. c. 3, §§ 7, 8, 9.

In Arkansas, Florida, Georgia, Illinois, Maryland, Missouri, New Jersey, and South Carolina, the statute of Charles is re-enacted almost in words, and the trust or confidence must be "manifested or proved by some writing signed by the party.”

In Alabama, California, Maine, Massachusetts, Michigan, Mississippi, New Hampshire, Rhode Island, Vermont, and Wisconsin," the trust must be created or declared by instrument in writing signed by the party creating or declaring the same."

In New York the seventh section was re-enacted; but in the revised statutes it was enacted "that the trust should be created or declared by deed or conveyance in writing," signed, &c.; but in 1860 it was enacted "that any writing signed by the parties" should be sufficient.

In Pennsylvania the seventh section was not enacted, and trusts could be created and proved by parol; but in 1856 the seventh section was substantially enacted.

In Texas, North Carolina, Tennessee, Virginia, Connecticut, Delaware, Kentucky, Indiana, and Ohio the seventh section does not seem to be reenacted. See ante, § 75.

In Iowa declarations and creations of trust or powers in relation to real estate must be executed in the same manner as deeds of conveyance. The ninth section seems to be in force in all the States.

§ 79. Wherever this statute or the substance of the statute is in force, express trusts cannot be proved by parol.1 They must be manifested or proved by some writing, signed by the party to be charged with the trust. They need not be created and declared in writing, but only manifested or proved by writing; for if there be written evidence of the existence of the trust, the danger of parol evidence, against which the statute was directed, is effectually removed. It may be questioned whether it was not the intention of the statute that the creation or declaration itself should be in writing; for the ninth section enacts 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 his last will or devise;" but whatever may have been the actual intention of the legislature, the construction put upon the clause is now firmly established. It is well established that the interest of the cestui que trust in land cannot be conveyed by parol.4

§ 80. In many of the United States the words of the seventh section are replaced by words to the effect that "the trust must be created or declared by an instrument in writing signed by the party; "5 and the question has arisen 1 Gerry v. Stimson, 60 Me. 186.

2 Forster v. Hale, 3 Ves. Jr. 707; 5 Ves. 315; Smith v. Mathews, 3 De G., F. & J. 139; Randall v. Morgan, 12 Ves. 74; Unitarian Society v. Woodbury, 14 Me. 281; Steere v. Steere, 5 Johns. Ch. 1; Movan v. Hays, 1 Johns. Ch. 339; McCubbin v. Cromwell, 7 Gill & J. 157; Barrell v. Joy, 16 Mass. 221; Pinney v. Fellows, 15 Vt. 525; Rutledge v. Smith, 1 McCord, Ch. 119; Johnson v. Ronald, 4 Munf. 77; Hutchinson v. Tindall, 2 Green, Ch. 357; Lane v. Ewing, 31 Mo. 75; Safford v. Rantoul, 12 Pick. 233; Gibson v. Foote, 40 Miss. 788; Reid v. Reid, 12 Rich. Eq. 213. Numerous other cases might be cited; but the rule is so well established, that it is not necessary.

8 Lewin on Trusts, 45; Black v. Black, 4 Pick. 236.

4 Richards v. Richards, 9 Gray, 313; Smith v. Burnham, 3 Sumn. 435.

whether this is a change of the law as established under the words of the original statute of frauds.

§ 81. The question has not been directly adjudged in a reported case raising the exact point; but it has arisen incidentally before the courts, and the intimations are that these words do not change the law, and that "created and declared" are equivalent to "manifested and proved." In practice, the great majority of trusts are not created by a deed or conveyance of land, but they arise from the transactions and agreements of parties; and if these transactions or agreements are evidenced in writing, the trust is sufficiently created, declared, manifested, or proved. Thus Mr. Justice Bennett, in Vermont, where the words are "created and declared by instrument," said, that "our statute is the same in effect as the English statute." And Mr. Justice Story said, that "in his opinion, there was no substantial difference between the Massachusetts statute of frauds" (which is in substance the same as the statute of Vermont) "and the statute of 29 Car. II. c. 3; and such is the conclusion to which I have arrived upon an examination of these statutes."2 And in Wisconsin, where the statute is the same as the statutes of Massachusetts and Vermont, it was held that an express trust need not be declared in express terms, that it is sufficiently declared or created if shown by any proper written evidence, such as an answer to a bill in equity, note, letter, or memorandum, disclosing facts which create a fiduciary relation. In New York, the words of the statute were that "the trust should be created or declared by deed or conveyance in writing." In relation to this Mr. Justice Strong said, that "the definition of the term conveyance given in the Revised Statutes comprehends a declaration of trust, although not under seal, as it is an

1 Pinnock v. Clough, 17 Vt. 508. › Pratt v. Ayer, 2 Chand. 265.

2 Jenkins v. Eldredge, 3 Story, 294.

1 R. S. 762, § 38.

3

instrument by which the title to such estate may be affected in law or equity." In another case, Chief-Justice Ruggles said: “The statute prescribes no particular form by which the trust is to be created or declared. Under our former statute, in relation to this subject, it was only necessary that the trust should be manifested in writing, and therefore letters from the trustee disclosing the trust were sufficient; such is the law of England.2 Our present statute requires that the trust should be created or declared by deed or conveyance in writing, subscribed by the party creating or declaring the trust; but it need not be done in the form of a grant. A declaration of trust is not a grant. It may be contained in the reciting part of a conveyance. Such a recital in an indenture is a solemn declaration of the existence of the facts. recited; and if the trustee and the cestui que trust are parties to the conveyance, the trust is as well and effectually declared in that form as in any other."4 Upon sound reason then, and upon the decided cases, it would seem that the peculiar form of words in some of the statutes of the American States has not altered the general rule, as established under the English statute; and that the same evidence would be generally received in the United States to establish a trust, as in England.5

1 Corse v. Leggett, 25 Barb. 394.

2 Stat. 29 Car. II. c. 3, § 7; Forster v. Hale, 3 Ves. Jr. 696.

The act of 1860 now makes the statute of New York conform in words to the statutes of the other States. Cook v. Barr, 44 N. Y. 158. Wright v. Douglass, 3 Seld. 569; Cook v. Barr, 44 N. Y. 158.

Sheet's Estate, 52 Pa. St. 527; Blodgett v. Hildreth, 103 Mass. 486. Mr. Browne, in his able treatise upon the statute of frauds, cites these of Jaques v. Hall, where the Supreme Judicial Court of Massachusetts notwithstanding the words of the Massachusetts statute, considered an entry in a private memorandum book of the trustee, setting forth clearly a previous transaction by which he had become trustee, as a satisfactory declaration of trust. There was other evidence; and, as the case is not put upon this ground in the printed report, 3 Gray, 194, the court probably chose to rest the decision upon other grounds. In Titcomb v. Morrill, 10 Allen. 15, Mr. Justice Chapman said it was not necessary to decide the question. See Browne on Statute of Frauds, § 104, 1st ed.