TRUST

In Law, is a term commonly used to designate any equitable right or interest, as distinguished^ from a legal one: properly, that cla of equitable rights' supposed to be founded in the confidence placed by one party in another; the name trustee denoting the person in whom confidence is placed; cestuy que trust, the person who trusts, — in other words, the party who enjoys a beneficial interest in the objects of which the trustee has the legal property. The origin of conveyances in trust may be traced to the jidei comnii um of the Romans, which was a gift by will to a person capable of taking in trust for another incapable by the Roman law of t^dling such benefit, whose claim under such gifts was for a long time precarious, and merely fiduciary, but came at length to be recognized and enforced by law. With us in the same manner, the original motive for the introduction of the fiduciary right, which was certainly borrowed from the Romans, VIII. The general object of this statute, as stated in the preamble, was to prevent those secret and fraudulent transfers occasioned by the separation of the real from the apparent ownership, and to restore those rights of the feudal lord, and of the crown, which had been in a great measure evaded, by keeping the legal title to which alone they attached in a course of succe ion; where it was likely to be forfeited by treason, and where it was le frequently subject by descent to an infant heir to the burden of wardship and relief. The general effect of the statute, as stated in the title, was the transferring or changing the use into po e ion, that is, annexing to the use the legal right of po e ion, whereby the real owner would be made manifest to all, and the real ownership would become subject to all the liabilities incident to the legal title: in short, the distinction between equitable and legal rights would be abolished, and the adjudication on all questions of property, except in particular cases of fraud or accident, would be restored to the courts of common law. The statute, however, was so worded as not to apply either to copyliolds or leaseholds, nor indeed to personal property of any description, which at that time was! little thought of; so that equitable. rights in copyholds and personalty remained as before, merely equitable; and they arose again, very shortly afterwards, in every species of real property, it being held by the courts of common law that such uses or trusts only were executed and transferred into po e ion by the statute, as were raised or declared upon what was before the statute the legal seisin or estate; so that where a new legal estate taking effect as such by virtue of the statute was created or conveyed in trust, such trust right not being within the purview of the statute, and not being recognized by the courts of common law, was adopted and enforced in equity, for reasons altogether similar in kind to those which originally led to the introduction of uses. Hence a new system of equitable rights grew up under the name of trusts, commensurate with the new system of legal rights or uses (f«r the use henceforth denoted the legal estate), created by the statute; and though some of the peculiar advantages of the old trust were, by the effect of the statute, transferred to the new legal ownership, such as the capability of modification for the benefit of different parties upon different events, and though the right of disposition by will was shortly afterwards extended to it by special statute, and though whatever advantages were still po e ed by the tiust, as a means of evading the burdens of tenure or other liabilities now attached to the use, were gradually removed either by 1267 the abolition of those burdens or the extension of those liabilities, trusts still continued and continue to be habitually resorted to for various purposes. These are, generally, either to protect the interests of married women and children, by placing in the hands of trustees for them the legal rights wliich they would be incapable of exercising; or to secure the rights of those in remainder, t)y severing from the usufruct of property for a life the power of disposing of the whole; or, lastly, the convenience of management, where many parties are interested in the same subject. These observations can apply only, at least with one or two exceptions, to expre trusts. An expre trust supposes a legal transfer of the property actually completed, and a declaration in the same instrument, or having reference to the same instrument (as an appointment under a power thereby created) of the trust upon which the property so transferred ig to be held. Such trusts may be declared in or by a reference to any instrument, either deed or will, that is sufhcient to pa property at law; the ground upon which they rest is the expre confidence that is placed in the trustee, by the person who transfers the property to him, no consideration of money or blood between the trustee and those for whom he holds being required as an inducement for the interference of equity. Trusts are most commonly raised by marriage-settlements, or by will. The usual trusts in the former case, as to real estate, are upon legal estates in terms of years, to arise upon certain events, to be held in trust, in the first place, for securing to the wi6e payment of her pin-money during marriage, and of her jointure after the husband's death; then for the raising, by sale or mortgage of the term, the stipulated provisions for younger children, and also for providing for their maintenance during minority. The ultimate trust of such terms, whether expre ed or not, is for the person entitled to the corpus of the estate, subject to those charges which the terms are created to secure. Similar trusts, also, are commonly raised in wills, for the maintenance or advancement and portioning of younger children. In all such cases, the legal rights vested in the trustees most commonly remain in their hands, as a means only of compelling the person actually in po e ion to discharge those claims subject to which he holds his estate. IJut there are other trusts of frequent occurrence, both in marriage-settlements and in wills, which require a more active interference on the part of the trustees, and which, therefore, carry with them a greater degree of responsibility. These are trusts for the sale of land and investment of the proceeds upon security, or in the purchase of other land, or trusts for the investment of what was originally personalty; in which cases, it is important for the trustees to consider, in the first place, how far the trust for sale or conversion is imperative and immediate, lest by delay they become liable for any lo that may ensue from the alteration in the value or price of land securities; in the next place, what are the securities in which they arc directed to invest, as they will be answerable for the failure of any security a resort to which has not been authorized by the terms of the trust. Where these securities are priVate, or where a purchase of land is made with trust moneys, they are further bound to see that the usual profe ional inquiries are in either case instituted into the validity of the title. It is obviously their duty, also, to look to the due appropriation or distribution of the proceeds. Where there is a conversion absolute, or, as it is called, out and out, of realty into personalty, or of personalty into realty, either agreed to or directed by deed or will, land is in equity considered as money, and money as land, for all the purposes of succe ion or transmi ion; but it rarely happens that a conversion by will is in terms suflBciently absolute to exclude the right of the heirs, or, w here it is personalty, the rights of the personal representative, to such part of the real or personal estate, whether actually converted or not, as shall not be required to fulfil the purposes for which the conversion was directed. The system of trusts is still more generally prevalent in limitations of copyhold and personal property, particularly personal chattels, as money or stock in the funds, to neither of which cla es of property the Statute of Uses applied, and in which, therefore, the legal interest remained, at least for a time, subject to the narrow rules of the common law; and copyhold property is therefore, for this as well as for other reasons, more commonly settled upon trust than is property of freehold tenure. Personal property, though once held incapable at common law of partial or shifting limitations, has long, by a somewhat forced though ingenious rule of construction, been released from that restriction; and therefore in the settlement of chattels real, of which the title is distinct from the po e ion, the creation of a distinct equitable title is not more often resorted to than in the settlement of real property of freehold tenure. But it is in regard to that sort of personal property, the title to which, or rather the power of conferring a title to which, is annexed to the po e ion, either from the nature of the thing itself, as in the case of money, or for reasons of 4 M 2 [s. 1279]