in respect to the lawful purpose, but be void as to the other.1 Under the denomination of active trusts, which are recognized by the statute as valid, are, first, to sell for the benefit of creditors; second, to sell, mortgage, or lease for the benefit of legatees; third, to receive rents and profits, and apply the same to the use of any person; fourth, to receive rents and profits to accumulate for a period and purpose authorized by statute. So a devise in trust to pay annuities out of real estate is held to be a valid trust. Nor does the statute intend to affect implied or resulting trusts, except to limit their extent, confining them to cases where some improper advantage has been taken by the trustee of the confidence or situation of the cestui que trust. It is accordingly provided, that no trust shall result where one pays money and the conveyance is made in the name of another, unless it is done without the knowledge or assent of the party paying the money, or unless the party paying the money have creditors, in which case a trust results in their favor. So if A purchases land with B's money, and takes a deed to himself, with the knowledge of the owner of the money, it will not raise a resulting trust in his favor.5 A like rule prevails in Minnesota, Kentucky, Indiana, and Michigan. But in Minnesota, if one pays money for an estate, and takes a deed in another's name, it will be presumed to be a fraud, and will let in the creditors of the one paying the money, to levy upon it, unless the tenant can negative the fraud. And if, in Indiana, an agent pays his principal's money, and takes a deed in the name of a stranger, without the knowledge and assent of the principal, it will raise a trust in favor of the latter. In Michigan, a trust cannot be raised by parol. In New York, creditors of 1 Harrison v. Harrison, 36 N. Y. 548. 2 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 55; Lalor, Real Prop. 167. See Gilman v. Reddington, 24 N. Y. 9. 3 Mason v. Mason, 2 Sandf. Ch. 482. Lalor, Real Prop. 125, 159; Astor v. L'Amoreux, 4 Sandf. 524. Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, §§ 51, 52; Lalor, Real Prop. 160-162; Norton v. Stone, 8 Paige, Ch. 222; Jencks v. Alexander, 11 Paige, Ch. 619 · Brewster v. Power, 10 Paige, Ch. 562; McCartney v. Bostwick, 32 N. Y. 59. 6 Minn. Comp. Stat. 382; Stat. at Large, 1873, vol. 1, c. 82, §§ 53, 54, p. 618; Sumner v. Sawtelle, 8 Minn. 318, 320; Graves v. Graves, 8 Met. (Ky) 169; one paying money for an estate where the deed is taken in a third person's name may resort to equity for reaching it for the purpose of satisfying their debts out of it. The statute raises and declares a trust in such cases in favor of the creditors of the one who pays the money. But where a married woman paid the consideration, and the conveyance was without her knowledge taken to her brother, it was held to raise a resulting trust in her favor, and not to come within the statute of New York.2 So where the parents of a minor, wishing to make an advancement to her, purchased an estate, and the deed was taken in the name of A, who paid no part of the purchase-money, it was held that a trust resulted in favor of the minor, which she could enforce against A in equity as trustee. But if one pays another's money, and takes a deed to himself without the knowledge or [*214] assent of such other person, or * do this in violation of a trust, a trust results in favor of him whose money has been thus applied, as would have been the case before the statute. No implied trust, however, will affect a purchaser without notice, who pays a valuable consideration for the estate. Where there is an express trust, the whole estate is in the trustee. The cestui que trust takes no estate or interest in the lands, and can only enforce the trust in equity. It was once held that the statute does not abolish public charitable trusts, but the courts will enforce them as before. But later decisions seem to favor the idea that all charitable trusts, except such as are express and come within those excepted in the act abolishing uses and trusts, are included in the act, and are no longer valid. And it was Wynn v. Sharer, 23 Ind. 375, 377; Groesbeck v. Seeley, 18 Mich. 345; Mich. Comp. Stat. c. 86, §§ 7, 9; 1871, vol. 2, c. 148, §§ 7-9. 1 McCartney v. Bostwick, 32 N. Y. 53, 59; Garfield v. Hatmaker, 15 N. Y. 475; Wood v. Robinson, 22 N. Y. 564. 2 Lounsbury v. Purdy, 18 N. Y. 515; Day v. Roth, 18 N. Y. 448. 3 Siemon v. Schurck, 29 N. Y. 598. 4 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 53; Lalor, Real Prop. 164; Reid v. Fitch, 11 Barb. 399; Lounsbury v. Purdy, Id. 496. Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 54; Lalor, Real Prop. 167. 6 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 72; Lalor, Real Prop. 185. 7 Williams v. Williams, 4 Seld. 525. 8 Levy v. Levy, 33 N. Y. 97, 134, where Wright, J., examines the question at great length. See also Downing v. Marshall, 23 N. Y. 366. finally settled that charitable trusts as understood in England are not excepted from the statute, if the trust be for the benefit of a class undefined and incapable of being ascertained with certainty. It is sufficient that the legatee is so described that he can be ascertained and known when the right to receive the legacy accrues. As to the duration of trusts, the rule is that they will be held to continue so long as it may be necessary to accomplish the purposes for which they are created, and the estates of trustees cease as soon as the purposes cease for which the trust was created.2 Where lands are devised to executors or trustees to sell, and they are not t receive the rents and profits, no estate vests in them, but a mere power only. And the same rule applies to all cases of express trusts which may be exercised under the form of a power. They are construed as giving, not an estate, but merely a power. Upon the creation of a trust, whatever estate or interest is not embraced in the trust, or otherwise disposed of, remains in and reverts to the person who creates the estate of the trustees. Where the trust is expressed in the instrument creating it, every sale or act of the trustee which is in contravention of the trust is void. If the trust is not declared in the deed conveying the estate to the trustee, it is liable for the debts of the trustee in favor of subsequent creditors without notice of the trust, and shall be deemed his absolute property as to them, and purchasers from him, without notice, and for a valuable considera- [*215] tion. No one paying money in good faith to a trustee is to be responsible for its application. Trust-estates do not descend to the heirs of trustees. If, at the death of a trustee, a trust is unexecuted, the estate vests in the court, 1 Holmes v. Mead, 52 N. Y. 343. * 2 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, §§ 59, 79; Lalor, Real Prop. 173. 8 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, §§ 70, 72; Lalor, Real Prop. 182 185. 4 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 74; Lalor, Real Prop. 187; Ja mes v. James, 4 Paige, Ch. 115. 5 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 77; Lalor, Real Prop. 189. 6 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 76; 7 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 78; Lalor, Real Prop. 189. who may execute the trust in person, or appoint a trustee for the purpose. Trustees may resign by permission of the court, or may be removed for good cause; and in such cases the court may substitute new trustees in place of the old ones.2 1 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 80; Lalor, Real Prop. 193. Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, §§ 81-83; Lalor, Real Prop. 194–196. SECT. 1. CHAPTER IV. REMAINDERS. Nature and Characteristics of Remainders. SECT. 2. Of Cross-Remainders. SECT. 3. SECT. 4. SECT. 5. SECT. 6. SECT. 7. Of Contingent Remainders. Of the Event on which Contingent Remainders may vest. American Statutes affecting Remainders. SECT. 8. Estates within the Rule in Shelley's Case. SECTION I. [*219] NATURE AND CHARACTERISTICS OF REMAINDERS. 1. How estates in expectancy are incorporeal hereditaments. 2. Of the divisibility of estates in fee into lesser estates. 3. Estates in fee originally associated with the idea of seisin. 4. Seisin not predicated of any estate less than a freehold. 5. Examples of what are estates in remainder. 8. Remainders not within the restriction against freeholds in futuro. 9. Remainders, whether vested or contingent. 10. Remainder must take effect on determination of prior estate. 11. Any number of remainders less than a fee may be carved out of a fee. 12. Distinction between a remainder and a conditional limitation. 13. Of a remainder after an estate in fee-tail. 15. Contingency of enjoyment not a test of a remainder being contingent. 16. Of the vesting of estates in possession and in interest. 17. What is meant by capacity to take effect in possession. 18. Tendency to construe remainders vested rather than contingent. 19. Remainders are vested, when given to a class, though some not in esss. 20. Vested remainders alienable as estates in possession. 21. Remainders and particular estates must arise by the same act. 22 Remainders must wait till particular estate determines. |