erally worded. The phrase is utterly out of place in any case where it is desired to create an active trust, and if inserted in such a settlement, would, it is conceived, have no legal significance whatever.1

Trusts

133. The statute of uses does not apply to a trust. A trust is a use with active duties. The activity of a trust, accurately speaking, is only of importance in an inquiry as to the application of the statute of uses, where the subject matter is real estate and is of no importance or relevancy for any other purpose. The usual words of activity are, "to collect the rents" or "collect and pay over the income."3 There are a few dicta that the words do not prevent the application of the statute. It is submitted that the weight of authority and reason is with the former view, and that the words are sufficient to prevent the application of the statute. A devise to trustees in trust to pay debts and legacies is generally

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1 See Rife v. Geyer, 59 Pa. 393 (1868), stated $314, post; Dodson v. Ball, 60 Pa. 492 (1869); Phila. Trust Co. v. Guillou, 100 Pa. 254 (1882), stated $315, post.

2 For definition of an active trust, see $110, ante.

3 In these cases the court has held that such a clause made the trust active and the statute did not apply. Rush v. Lewis, 21 Pa. 72 (1835), semble, Black, C. J.; Vaux v. Parke, 7 W. & S. 19 (1844), dictum; Pratt v. McCawley, 20 Pa. 264 (1853); Barnett's App., 46 Pa. 392 (1864), doubtful whether real estate was involved here; Shankland's App., 47 Pa. 113 (1864); Sheets' Est., 52 Pa. 257 (1866); Bacon's App., 57 Pa. 504 (1868); Earp's App., 75 Pa. 119 (1874); Ashhurst's App., 77 Pa. 464 (1875); McIntosh's Est., 158 Pa. 528 (1893); Boyd's Est., 199 Pa., 487 (1901).

4 Gray, Restraints on Alien., 2 ed. (1895), $216, citing the case of Rife v. Geyer, 59 Pa. 393 (1868). In that case, however, the court ignored the words "recover and receive the rents and income," and placed the case on the ground of the

presence of the clause against alienation. Dictum, Lowrie, J., in Kuhn v. Newman, 26 Pa. 227 at 231 (1856), Harkinson v. Bacon, 3 W. N. C., 403 (1877). In Hemphill's Est., 180 Pa. 95 (1897), the court said that because there was a direction to pay the net income, there was an active trust, as it necessarily involved discretion. This is undoubtedly correct. Judge Ashman, however, in the court below, took the distinction that there can be no active trust in Pennsylvania unless the duties imposed on the trustee require discretion as well as activity. This is a new thought in the construction of the statute of uses, and one which, it is believed, the cases do not sustain. Judge Ashman further said, "The automatic function of merely receiving for the cestui que trust and immediately paying over to him the trust fund or its income, will not make a trust active. The cestui que trust could perform the act as well, and he has no protection in the superior judgment of the trustee, because the trustee is not empowered to exercise his judgment. The cases

considered as active in Pennsylvania, although no case deciding the point has been found. It frequently happens that there is a power in trust or a power in an executor, and a question arises as to whether the legal title is in the trustee, in the executor or in the heir or devisee. The answer to this question depends on the terms of the will and the law of powers. The statute of uses obviously has no bearing on the case at all.

General Principle as to Necessity for a Conveyance

135. It seems plain that in all cases which are within the statute, there is no necessity for a conveyance, since the statute of itself passes the title into the cestui que trust. To say that a conveyance is necessary, is to deny the effect of the statute.

Law in Pennsylvania as to Necessity for a Conveyance

The

136. The law in Pennsylvania is far from clear. remarks of the judges on the point are in conflict. In Bacon's Appeal, Strong, J., said, speaking of a contingent use: "It is true that we have in some cases decreed conveyances from a trustee to a cestui que trust, when the purpose of a trust has been fulfilled; but this is not because the equitable and legal titles remained apart. It was to dissipate a useless cloud upon the title, and make the property more marketable." In this remark, the learned judge is involved in a contradiction of terms, for if the legal and equitable titles did not remain

properly describe him as a mere conduit." The learned judge overlooked the practical aspect of the case. The receiving and paying of income can never be automatic. An automatic action is one which proceeds of itself without any intelligence or outside agency. The question before the court in that case was evidently as to real estate, and the collection of income of real estate certainly requires discretion as to making leases, repairs, collecting rents and attending to taxes and water rent, all of which duties the trustee has to perform, see §§154, 155, post, because of his ownership of the legal title. The description of a mere conduit applied

to a trustee, applies to those cases where the statute of uses operates. Furthermore, a mere direction to pay over the rents and income does not imply a direction to pay the gross income, which must be the case if the dictum of the learned judge is correct. In Wolfinger v. Fell, 195 Pa. 12 (1900), there was a direction to pay the income. The court, McCollum, J., under a misapprehension as to the terms of the will, thought there was a direction to pay the net income, and said the trust was active on the authority of Hemphill's Est.

5 See Hill, Trustees, Bispham's ed. (1867), p. 358.

657 Pa. 504 at 513 (1868).

apart, how could there possibly be anything for the trustee to convey? In Westcott v. Edmunds,' Agnew, J., said, by way of dictum: "It is very clear that the active duties of the trust under this will ceased at the death of Catharine Hance, the life tenant under the trust; and after that there remained no further duty to be executed by the trustee, but to convey the estate to the persons in remainder. But this, it has been decided, does not continue the trust, the law, in this state, executing the legal title in the remaindermen without the formality of a conveyance. It is true that decrees have been made in such cases, compelling trustees to convey to the person in remainder or to married women after coverture had ceased; but it is said that this is merely to remove the cloud arising from the apparent trust. Whatever might have been the impression as to the necessity of such a decree, it is now clearly settled by authoritive decision that the legal estate vests without a conveyance." In many cases the court has said that the trust was executed but nevertheless directed a conveyance." In some cases, the court has dismissed the bill for a conveyance on the ground that the cestui que use already had the legal title under the statute.10 In other cases where the statute applied, the cestui que use was held to have the legal title without a conveyance, and permitted to deal with

768 Pa. 34 at 36 (1871).

8 See also remarks of Rice, P. J., in Rockhill's Est., 29 Pa. Super. Ct. 28 at 35, (1905). In the case of Carson v. Fuhs, 131 Pa. 256 at 266 (1889), Mr. Chief Justice Paxson said, after stating that the trust was dry: "The trustee, in this case, had no active duties to perform; it is a passive dry trust, with no interest to guard, no rights to protect. In such case, the cestui que trust is entitled to a reconveyance of the legal title; equity will consider that done which ought to be done, and declare the legal title in Mrs. Hamilton." This is a new ground on which to put the operation of the statute of uses, and somewhat inconsistent with the established construction of the act.

See Nice's App., 50 Pa. 143 (1865);

Keyser's App., 57 Pa. 236 (1868); Dodson v. Ball, 60 Pa. 492 (1869); Megargee v. Naglee, 64 Pa. 216 (1870); Ogden's App., 70 Pa. 501 (1872); Rodrigue's App., 22 W. N. C. 358 (1888). See Gray, Restraints on Alien., 2 ed. (1895), §§124 g, 194, n.

10 See Kuhn v. Newman, 26 Pa. 227 (1856). This case has been considered revolutionary in the law of trusts. There were no active duties imposed in the trustee. The sole and separate use fell, and the beneficiaries, therefore, became vested with the legal title; see §§131, ante, 137, post. The remarks of the court as to the case before it were correct. The decree for a conveyance was refused, because if they had the title, the decree in partition embraced it, and, of course, no conveyance was necessary. See Rush v. Lewis, 21 Pa. 72 (1853).

it as owner.1 In still other cases, where the life estate came within the statute, it was united with the legal remainder.2 If a conveyance is necessary, how could the life estate unite with the remainder until a conveyance had been made? If necessary in one case, it must be necessary in another. It is perhaps the tendency to require a conveyance when the controversy is between the cestui que use and trustee, but when between the cestui que use and third persons, to consider the title as having passed.3

Probable Cause of Confusion in the Law

137. Further confusion has existed on this point because of the failure to bear in mind the distinction between a trust which is executed by the statute, and a trust which can be terminated by the cestui que trust. In the former case, the interest becomes legal at once; in the latter, it does not become legal until the cestui que trust has proceeded in a court of equity for transfer of the title or the trustee has made a conveyance. It is probable that some of the peculiar principles of Pennsylvania law relating to the validity of the sole and separate use, and the application thereto of the statute of uses, have arisen because of this misunderstanding of the operation of the statute of uses. As long as the court failed to distinguish between the case where the trust fell of itself because of the operation of the statute of uses, and the case where it was terminable only by a conveyance from the trustee, it was easy to slip into the position that a sole and separate use fell of itself when the circumstances requisite to its validity had ceased to exist."

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Fallacious Notion as to the Test of an Active Trust

138. It is sometimes said that where a court of equity would decree a conveyance of the legal title to the cestui que trust, the trust would be considered as executed without a

1 Smith v. Starr, 3 Whart. 62 (1838); McKee v. McKinley, 33 Pa. 92 (1859); Cable v. Cable 146 Pa. 451 (1892); Chamberlain v. Maynes, 180 Pa. 39 (1897), semble.

2 Steacy v. Rice, 27 Pa. 75 (1856); Nice's App., 50 Pa. 143 (1835).

3 Eckels v. Stewart, 53 Pa. 460 (1866); List v. Rodney, 83 Pa. 483 (1877); Kinsel v. Ramey, 87 Pa. 248 (1878). 4 See $570, post.

5 See $129, ante.

For a further discussion of this point see §129, ante.

formal conveyance by the trustee. This is the same thing as saying that no conveyance is necessary where a court of equity would direct a conveyance. Now, the only case where a court of equity will direct a conveyance is where there is an active trust which has terminated or where the trust can be terminated by the cestui que trust under some rule of law. The very case, therefore, in which a court of equity will decree a conveyance, is the case where a conveyance is necessary, and when the title has passed by the force of the statute, the court will not decree a conveyance. The statement, therefore, is clearly fallacious and should be disregarded.

Conclusion as to Pennsylvania Law

139. No statement of the law as to the necessity of a conveyance can be made in this condition of the authorities. It will undoubtedly be safer to always take a conveyance, and that, probably, is the universal practice, which of of course practically repeals the statute of uses. The statute is of no vital importance in modern times except in so far as convey-. ancing is concerned. It will be easy to confine the operation of the statute to those cases and deny its effect in all other cases. The line of distinction is so clear between the case of a simple use and all other equitable limitations, that no difficulty can arise. If the statute applies and no conveyance is necessary there will often be a practical difficulty in deciding whether, in a given case, there is a use or a trust.

This notion apparently has its origin in the 4th paragraph of the syllabus of the case of Rife v. Geyer, 59 Pa. 333 (1868), which is as follows: "The true test as to a trust being dry or active is, whether equity in Pennsylvania would decree a conveyance of the legal title." Mr. Justice Sharswood, on p. 396, made use of the above language, leaving out that part of the sentence in quotation "as to a trust being dry or active." It is believed, however, that the court did not mean to announce any such statement of law, for the connection in which Mr. Justice Sharswood uses the language above mentioned is to elaborate that part of the opinion which follows the sentence, to wit, as to how such a trust

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is to be treated in a common law proceeding, and has no reference to the previous paragraph where he is discussing the distinction between an active and a passive trust. Cited and followed by Mehard, P. J., in the court below in Carmichael v. Thompson, 8 Sad. Cases, 120 at 125 (1886); Mitchell, J., in Chamberlain v. Maynes, 180 Pa. 39 (1897). 8 It is to be observed, however, that under the Act of June 14, 1836, P. L. 628, §30, the court has power to compel the conveyance by trustees of the legal estate when the trust has become executed or has expired. While this act is not altogether clear, it may be that under its provisions a conveyance is necessary in every case where the statute of uses applies.