only evidence of the trust to be adduced at the hearing.1 In all cases, however, the defendant may answer, and if in his answer he confess the trust without insisting upon the statute of frauds, he will be held to have waived the benefit of the statute, and his answer may be used as a written declaration and proof of the trust,2 on the ground that the plaintiff is not called upon to introduce evidence, and the trust appears upon the written answer before the court.

§ 85. Resulting and implied trusts that arise from fraud can be proved by parol, although the defendant in his answer denies the trusts and sets up the statute in bar; for such trusts are not within the statute. In cases of express trusts, if the defendant denies them, or if he denies them and at the same time sets up the statute, or if he do not answer at all, only legal evidence or evidence in writing can be given in proof. And if the defendant confesses the parol trusts in his answer, and at the same time sets up the statute in bar, he will have the benefit of the statute, and the court will not use the answer as a written declaration and proof of the trust. In one case, it was held, that a trust appearing from

1 Davis v. Otty, 33 Beav. 540.

2 Hampton v. Spencer, 2 Vern. 288; Nab v. Nab, 10 Mod. 404; 1 Eq. Ca. Ab. 404; Gil. Eq. 146; Dean v. Dean, 1 Stockt. 425; Whiting v. Gould, 2 Wis. 552; Woods v. Dille, 11 Ohio, 455; Newton v. Swazey, 8 N. H. 9; Rowton v. Rowton, 1 Hen. & Munf. 91; Lingan v. Henderson, 1 Bland. 236; Tarleton v. Vietes, 1 Gilm. 470; Stearnes v. Hubbard, 8 Greenl. 320; Thornton v. Henry, 2 Scam. 219; School Trustees v. Wright, 12 Ill. 432; McCubbin v. Cromwell, 7 Gill & J. 157; Kinzie v. Penrose, 2 Scam. 250; Talbot v. Bowen, 1 A. K. Marsh. 436; Albert v. Ware, 2 Md. Ch. 169, 6 Md. Ch. 66; Chitwood v. Brittain, 1 Green, Ch. 450; Baker v. Hollabaugh, 15 Ark. 322; Cozine v. Graham, 2 Paige, 177; Tilton v. Tilton, 9 N. H. 386; Switzer v. Skiles, 1 Gilm. 529; Allen v. Chambers, 4 Ired. Eq. 125; Hall v. Hall, 1 Gill, 383; McLaurie v. Partlow, 53 Ill. 340.

3 Trapnal v. Brown, 19 Ark. 39; Wynn v. Garland, ib. 23; Smith v. Howell, Stockt. 349; Whyte v. Arthur, 2 Green, Ch. 521; Broadness v. Woodman, 27 Ohio St. 353; Matthews v. Denman, 24 Ohio St. 615.

4 Dean v. Dean, 1 Stockt. 425; Whiting v. Gould, 2 Wis. 552. The proposition in the text was long a disputed point. It was apparently held

defendant's answer would be executed by the court although it was entirely different from the trust alleged in the bill;1 but this case has not been followed. In a late case where a bill was filed setting forth a fraud and asking to have a resulting trust declared and a deed set aside, and the defendant confessed an express trust by parol, and offered to execute it, Chancellor Vroom said, "I am inclined to believe that if the present complainant had filed a bill claiming this deed to be a deed of trust, and praying that it might be so decreed according to the original intention of the parties, the answer of the defendant admitting the trust would have been good evidence of it. It would have amounted to a sufficient declaration of trust. But it would seem to be different when a complainant seeks on the ground of fraud to set aside a deed absolute on its face, and confessedly without any consideration paid; for, to suffer a defendant in such case to come in and avoid the claim by setting up a trust would be to permit him to create a trust according to his own views, and thereby prevent the consequences of a fraud."2 It must

that, as the defendant by his answer had admitted the trust, the plaintiff was not called upon to introduce any evidence. There was no danger of fraud and perjury, as the court had the defendant's statement of a trust in writing under oath, and as equity takes hold of a party's conscience, he ought to be held to execute the trust which he confesses, notwithstanding the statute. On the other hand, in bills for the specific performance of a parol contract for the sale of lands, the defendant was held not bound to execute the contract if he set up the statute, although he confessed the contract in his answer. There would seem to be no reason for a different rule in the two cases; and, since it is now established that a defendant may demur to a bill that on its face alleges a mere parol trust, it would seem to follow that the confession of a defendant should not be used to override a positive rule of law. The two cases cited establish the proposition of the text, and it is presumed that the same rule would be held in all the United States. It is a question of pleading and practice, and it is considered here only incidentally in considering how trusts may be created under the statute of frauds. The reader will find a full discussion of the question in Story's Eq. Pleading, §§ 765-768.

1 Hampton v. Spencer, 2 Vern. 288.

2 Hutchinson v. Tindall, 2 Green, Ch. 357; and see Jones v. Slubey,

be observed, that if the answer of the trustee is used to prove the trust, the terms of the trust must be gathered from the whole answer as it stands, for one part of the answer cannot be read and another part rejected. If, therefore, the plaintiff read the answer in proof of the trust, he must at the same time read the particular terms of the trust as therein stated.1 In States where the statute of frauds is not in force, trusts may be proved by parol, in opposition to the defendant's answer denying them.

§ 86. Personal chattels are not within the terms of the statute, and trusts in personal property may be declared and proved by parol, though Mr. Eden said that "he had not been able to find an instance of a declaration of trust of personal property, evidenced only by parol, having been carried into execution."2 And certainly the English cases usually referred to do not establish the proposition in express terms.3

5 Harr. & J. 372; McCubbin v. Cromwell, 7 Gill & J. 157; Haigh v. Kay, L. R. 7 Ch. 469.

1 Hampton v. Spencer, 2 Vern. 288; Nab v. Nab, 10 Mod. 404; Freeman v. Tatham, 5 Hare, 329; Stearnes v. Hubbard, 8 Greenl. 320; Lewin on Trusts, 46.

2 Fordyce v. Willis, 3 Bro. Ch. (n.).

8 Nab v. Nab, 10 Mod. 404, 1 Eq. Ca. Ch. 404, and Jones v. Nabbe, Gil. Eq. are usually cited to sustain the proposition, but they do not. In Crook v. Brooking, 2 Vern. 50, 106; Inchiquin v. French, 1 Cox, 1; Metham v. Devon, 1 P. Wms. 529, and Smith v. Attersoll, 1 Russ. 274, there were written declarations of trust, and the question was as to the effect of the writings, though it was remarked in these cases that trusts of personalty could be evidenced by parol. The case of Benbow v. Townsend, 1 My. & K. 506, was this: A. had loaned £2,000, and taken a mortgage in the name of B., his brother, declaring that he intended it for the benefit of B. After the death of A., his executor brought a bill against B. to obtain the mortgage, and the question was whether the representatives of A. were entitled to the mortgage. It was held that B. was entitled to hold the mortgage, and it was remarked that a trust of personal property was not within the statute of frauds. It will be observed that the mortgage was in writing in the name of B., and that the parol evidence was not used to establish a trust in B., but to rebut a trust resulting to A. from his having paid the purchase-money. If A. had taken the mortgage in his own name,

There does not seem to be any objection, however, to the establishment of a trust in personal property by parol. The owner in the absence of a statute has entire control of it; he can sell and transfer it without writing and by parol, and if he can transfer it by parol, there is no reason why he may not by parol transfer it upon such lawful terms, and to such uses and trusts, as he may desire. It has been so ruled in express decisions in the United States. Under these decisions trusts may be created by parol in any mere personal property, as in the shares of corporations, although the corporations themselves own real estate. So money or a debt secured by mortgage of real estate is a personal chattel, and a trust in the money or mortgage debt, and in the mortgage itself, may

but had declared that it was in trust for B., the question would have fairly arisen, whether a parol declaration could create a trust in a mortgage of real estate. Bayley v. Boulcott, 4 Russ. 346, only establishes the proposition that a paper prepared under the direction of the owner, but which she refused to execute, will not create a trust. But in McFadden v. Jenkyns, 1 Phill. 153, 1 Hare, 458, it was directly held that a parol declaration was sufficient to create a trust in personal property. If there are doubts and difficulty upon the supposed words, the court will give weight to the fact that they were not written to infer that they may not be the deliberate sentiments of the party. Dipple v. Corles, 11 Hare, 183; Paterson v. Murphy, ib. 91, 92.

1 Hooper v. Holmes, 3 Stockt. 122; Day v. Roth, 18 N. Y. 448; Robson v. Harwell, 6 Ga. 589; Higgenbottom v. Peyton, 3 Rich. Eq. 398; Kirkpatrick v. Davidson, 2 Kelley, 297; Gordon v. Green, 10 Ga. 534; Kimball v. Morton, 1 Halst. Ch. 31. See McFadden v. Jenkyns, 1 Hare, 461, 1 Phill. 157; Thorpe v. Owens, 5 Beav. 224; George v. Bank of England, 7 Price, 646; Hawkins v. Gordon, 2 Sm. & Gif. 451; Peckham v. Taylor, 3 Beav. 250; Hunnewell v. Lane, 11 Met. 163; Simms v. Smith, 11 Ga. 195; Crissman v. Crissman, 23 Mich. 218; Berry v. Norris, 1 Drew. 302; Maffitt v. Rynd, 69 Pa. St. 30; Thatcher v. Churchill, 118 Mass. 108; Gerrish v. New Bedford Inst. for Savings, 128 Mass. 159; Chase v. Chapin, 130 Mass. 128; Davis v. Coburn, 128 Mass. 377.

2 Porter v. Bank of Rutland, 19 Vt. 410; Forster v. Hale, 3 Ves. Jr. 696; 5 Ves. 308; Ashton v. Langdale, 4 De G. & Sm. 402; 4 Eng. L. & Eq. 80; Myers v. Perigal, 16 Sim. 533; 14 Eng. L. & Eq. 229; Hilton v. Giraud, 1 De G. & Sm. 183; Kilpin v. Kilpin, 1 M. & K. 520; Wheatley v. Purr, 1 Keen, 551.

be created by parol; and although a parol declaration of trust will not affect land, yet if the land is to be converted into money, and is converted, a parol declaration will bind the proceeds, or the money. Mr. Hill says, that "it would seem to follow that legacies and annuities, and other sums of money charged on land, do not come within the operation of the statute respecting parol declarations of trusts in land." 8 But all chattels real are within the statute, and trusts in them must be evidenced in writing, as in case of freehold or leasehold interests. The same remarks are to be made in relation to parol trusts of personal property that were made in relation to parol trusts of real estate where such trusts are possible.5 The subject-matter of the trust must be clearly ascertained, as well as the purposes of the trust and the persons who are to take the beneficial interests. Loose, vague, and indefinite expressions are insufficient to create the trust. If the trust is once created in writing it cannot be varied by parol, and if it is once created by parol it cannot be altered or varied by other declarations of the trustee, as where a daughter delivered to her father $7000 upon the parol trust that he would secure the money in trust for her and invest it for her sole benefit, and the father made his will giving said notes to two trustees to receive and pay over the income and interest to the daughter during her life, and at her decease to pay the principal to such persons as she by her last will should direct and appoint, and in default of such appointment, to her heirs-at-law: the father died, and his estate turning out insolvent, she brought a bill praying that the notes might be

1 Bellasis v. Compton, 2 Vern. 294; Benbow v. Townsend, 1 M. & K. 510; Childs v. Jordon, 106 Mass. 322; Hackney v. Brooman, 62 Barb. 650. 2 Maffitt v. Rynd, 69 Pa. St. 30.

• Hill on Trustees, 58 (n.); see note 2, p. 74.

Skett v. Whitmore, Freem. 280; Forster v. Hale, 3 Ves. Jr. 696; Riddle v. Emerson, 1 Vern. 108; Hutchins v. Lee, 1 Atk. 447; Bellasis v. Compton, 2 Vern. 294; Gardner v. Rowe, 5 Russ. 258; Otis v. Sill, 8 Barb.

Ante, § 77, n. 4, p. 61; Crissman v. Crissman, 23 Mich. 218.