CLASSIFICATION SIMPLE AND SPECIAL TRUSTS 13. Trusts, in view of the kind of duty imposed on the trustee, are either simple (passive) or special (active); this is the first and natural division." A simple trust, other names for which are dry, passive, or naked, is one by force of which the mere legal title vests in the trustee, no duty being required of the trustee to carry out the trust;** the nature of the trust, not being prescribed by the creator of the trust, is left to the construction of the law which regulates it." The cestui que trust has the right to be put into actual possession of the property and, also, the right to dispose of it, or, rather, the right to call upon the trustee to execute conveyances of the legal estate as the cestui que trust may direct." A special trust, known also by the term active, is one in which the trustee has some duty to perform, so that the legal estate must remain in him or be defeated. The trustee is not a mere depositary of the estate, but is called upon to exert himself actively in the execution of the settlor's intention, as where a conveyance is to trustees upon trust to sell for payment of debts." A special trust may be either ministerial or discretionary; that is, if ministerial, or, as it is also known, instrumental, it demands no further exercise of reason or understanding than every intelligent agent must necessarily employ; if discretionary, it cannot be duly administered without the application of a certain degree of 51 Lew. Tr.. *p. 18. 52 93 Pa. 209 (1880). 56 53 Bouv. Law Dict.; Per. T. & T., Sec. 18; 154 Pa. 65 (1893). 54 Lew. Tr., * pp. 18, 19. 55 Ibid., p. 18; Per. T. & T., Sec. 18: 9 Am. Dec. 256 (1820), 56 Per. T. & T., Sec. 19. prudence and judgment. Thus, a trust to convey an estate must be regarded as ministerial; for, if the estate be vested in the cestui que trust, it is immaterial to him by what manner of person the conveyance is executed. But a fund vested in trustees to be distributed among such charitable objects as the trustees shall think fit, is a discretionary trust." In certain English cases mention is made of a mixture of trust and power, which is explained by an authority to mean a trust concerning which the outline only is sketched by the settlor, leaving the details to be filled up according to the good sense of the trustees. "The exercise of such a trust is imperative, while the mode of its execution is matter of judgment and discretionary." Care is advised to be taken not to confound a mixture of trust and power with a common trust to which a power is annexed. In the former, as in a trust "to distribute at the discretion of the trustee," they are bound to distribute at all events, and the manner only is left open; whereas, in the latter case, the trust itself is complete, and the power, being but an accessory, may be exercised or not, as the trustee may deem expedient; as where lands are limited to trustees with authority to grant leases, or stock is transferred to trustees with a power of varying the securities. In such cases, the power forms no integral part of the trust; it is merely collateral and subsidiary, and the execution of it in the absence of fraud cannot be compelled by application to the court." 14. Public and Private Trusts. With reference to the persons concerned, trusts are public or private. The former are constituted for the benefit either of the public at large, or of some particular portion of it answering to a particular description. To this class belong all trusts for charitable purposes. Private trusts are those wherein the beneficial interest is vested absolutely in one or more individuals, who are, or may be, definitely ascertained. 57 Lew. Tr.., *p. 18. 58 Ibid.. *p. 19, citing 16 Ves. (Eng.) 43 (1809); 2 Ves. (Eng.) 89 (1750); 9 Am. Dec. 256 (1820). 15. Lawful and Unlawful Trusts. - With reference to the object or view, trusts may be divided into those that are lawful and those that are unlawful. The former are such as are directed to some honest purpose, and will be administered by the courts. The latter are trusts created for the attainment of some end contravening the policy of the law, such as a trust to defraud creditors or to defeat a statute, and, therefore, will not be sanctioned by the courts. EXPRESS AND IMPLIED TRUSTS 16. Express Trusts. - According to the manner of creation, and considered with reference to their beginning, trusts are express or implied. An express trust is one created by words in an instrument, such as a deed or will, showing an intention to create a trust." When it can be fairly collected from the face of the instrument that a trust was intended, the terms will be considered sufficient to create an express trust. Examples of express trusts are those contained in preliminary sealed agreements, such as marriage articles or articles for the purchase of land, informal conveyances, such as marriage settlements, terms for years, mortgages, assignments for the payment of debts. or other purposes, also, in wills, when the bequests involve fiduciary interests for private benefit or public charity." 17. Implied Trusts. An implied trust in its general sense, is either (1) one deducible from the nature of the transaction as a matter of intent, or (2) one that is superinduced upon the transaction by operation of law as a matter of equity, independently of the intention of the parties." The trust of the second class is specifically an implied trust, being one that arises by implication or operation of law as contradistinguished from one that arises by a properly executed agreement of the parties. 18. Precatory Trusts. It is claimed that it is not technically correct to include under implied trusts a trust of 59 Bouv. Law Dict.; 2 Pom. Eq. Jur., 60 Bouv. Law Dict. Sec. 987. 61 lbid. ་་ the first class, specified above; that is, one deducible from the nature of the transaction, or, in other words, one that can be inferred from the construction of an instrument, such as a deed or will." These are properly termed precatory, trusts, so called from the precatory or recommendatory words used by a testator in a will, such as "desire,' 'will and declare," "entreat, order, and direct," "authorize and empower," "recommend," 'wish and request," and the like. These expressions are held to convey a wish only and not a command, if it be impracticable for the court to deal with it as a trust. Thus, if a testator devise a house to his wife and express the wish that his sister should live with her, no interest in the house is given to the sister, and it is not clear that the court can compel the widow and sister to live together." There must be certainty as to the parties who are to take, and as to what they are to take. If designed to be peremptory, they become imperative though precatory in form. Thus, a devise to A for life of real and personal estate with a remainder to a grandson, with a "will" and "desire" that, if the grandson come of age he should have "a portion of the estate as a loan," was held not to create a trust in favor of the grandson during A's life. Generally, where one gives property by will, and points out the object of the gift, the property, and the way it shall go, a trust is created, unless the will expressly leave the property subject to the control of the trustee." 64 RESULTING AND CONSTRUCTIVE TRUSTS 19. Implied trusts include two classes, known as resulting and constructive trusts. Both of these are implied or presumed from the supposed intention of the parties and the nature of the transaction, but they have distinguishing characteristics. A resulting trust must consequently arise from the act of some party having the beneficial 62 Am. & Eng. Encyc. Law (2d Ed.), 64 Washb. R. P. (6th Ed.). Vol. 2, Sec. Vol. 15, p. 1,124. 1,466. 63 Lew. Tr., *p. 132; Washb. R. P. (6th Ed.), Vol. 2, Sec. 1,466. ownership of the property; all other trusts that are not express are constructive, and are, generally, imposed unwillingly upon the person who is held to be a trustee."" 20. How Resulting Trusts Arise. - Resulting trusts are subdivided into (1) those where an owner or person, legally and equitably entitled, makes a conveyance, devise, or bequest of the legal estate, and there is no ground for the inference that he meant to dispose of the equitable; (2) where a purchaser of property takes a conveyance of the legal estate in the name of a third person, but there is nothing to indicate an intention of not appropriating to himself the beneficial interest. The general rule is "that wherever, upon a conveyance, devise, or bequest, it appears that the grantee, devisee, or legatee was intended to take the legal estate merely, the equitable interest, or so much of it as is left undisposed of, will result, if arising out of the settlor's realty, to himself or his heir, and, if out of personal estate, to himself or his executor."'"* (1) Where one pays Resulting trusts arise in four ways: the purchase money in buying an estate and has the property conveyed to a third person; here the trust of the legal estate results in favor of the one who pays the purchase money; (2) where property is bought with trust funds by one in a fiduciary capacity and title is taken in his own name; the trustee is here presumed to have intended the purchase to be for the benefit of the trust estate; (3) where the property is conveyed to a trustee, but the trust is insufficiently declared, or is not declared at all, or fails, lapses, or is illegal; in this case, a trust results in favor of the grantor, that is, in him who made the conveyance, or his heirs, or other persons entitled thereto; (4) where property is conveyed by the owner without consideration, and it appears from the circumstances that the grantee was not intended to take beneficially; in this case, a trust arises in favor of the grantor or former owner."" 65 Washb. R. P. (6th Ed.), Vol. 2, Sec. 1,420. 66 Lew. Tr.. *p. 143. 67 Bisph. Eq. (5th Ed.), pp. 133, 134. |