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; cestny que trust, the person who trusts — in other words, the parly 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 ddei commis sum 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 taking such benefit, whose claim under such gifts was for a long time precarious, and merely fiduciary, but came at length to be recognised 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, was the wish to escape from the disabilities affecting certain persons, or bodies, or the liabilities attached to property in its direct and simple shape. Such was, in particular, the disability of corporations to purchase land at common law; and on this account,as it is commonly said, the ecclesiastics, who were chiefly interested in this matter, introduced this new species of property, which was willingly recognised by the chancellors, then usually ecclesiastics, and in other respects inclined to adopt the principles of the civil law. The clergy were, however, soon themselves deprived of the benefit of the invention, the disability of corporations to take land being extended by statute to the new right so created. But there still remained many liabilities arising from feudal tenure, incident to property at common law; such as, for instance, dower, escheat, wardship, restraint upon alienation by will, which it was desirable and po ible either to evade by this mode of conveyance in trust, or to transfer to a quarter le likely to be affected by them: and there were also many modifications of property for the benefit of families, which could only be given to it in this manner. It must be admitted, further, that there were le honest purines, such as the defrauding bond fide purchasers by secret alienation, sought to be attained by the same means. For these, among other reasons, conveyances in trust were still resorted to; and the Court of Chancery, which had once, for whatever reason, originally recognised, continued to enforce them. There were also two other means of creating a trust, or rather raising a use, not by actual conveyance; the one by agreement for money; the other by covenant under seal in consideration of near relationship. The right so created was called indifferently a trust or an use; more commonly the latter, from the actual enjoyment of the rents and profits annexed to it in equity. Indeed, the benefit of the use or trust was in the first instance confined to this; but the cestuis que use, or parties beneficially interested, soon acquired the right of directing a conveyance by the holders of the legal estate, legal (y termed the feoffees to uses, and also of calling upon them to use the legal title in their defence in a court of cuinmon law. 15*76 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 slated 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 copyholds or leaseholds, nor indeed to personal property of any description, which at thai 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 anew 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 recognised 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 (for 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 trust, as a means of evading the burdens of tenure or other liabilities now attached to the use, were gradually removi by 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 lire, generally, either to protect the interests of married women and children, by placing in the hands of trustees for them the legal rights which they would be incapable of exercising; or to secure the rights of those in remainder, by 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 is to be held. Such trusts may he declared in or by a reference to any instrument, either deed or will, that is sufficient 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 ns 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, arc upon legal estates in terms of years, to arise upon certain events, to be held in trust, in fiie first place, for securing to the wife pavment 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 estnte, subject to those charges which the terms are created to secure. Similar tinsts, a.'so, are commonly raised in wills, for the maintenance or advancement such cases, the"and legal portioning rights vested of younger in the children.trustees In most all [s. 1290]