made for the benefit of another;" but simply that the latter shall be regarded as one species of the genus. There is here no limitation, but rather an extension, of the meaning, and the clause of course recognizes other kinds of trustees besides the party to the special form of contract, who is not very happily termed a "trustee." The section of the New York code, when originally passed, contained but the first sentence as it now stands. Some doubt arose as to its meaning, and a judicial decision having held that the phrase embraced, among others, a person with whom or in whose name a contract is made for the benefit of another, the legislature, to remove all possibility of doubt, added this judicial language as an explanatory clause. The two forms of the provision, although their phraseology differs somewhat, mean exactly the same thing, and establish exactly the same rule. As these two phrases, whether they be regarded as separate, or one as partially explanatory of the other, are the most comprehensive ones in the section, and present the main difficulties of construction, I shall discuss them first in order, and shall endeavor to ascertain what particular classes of persons were intended to be described by them. This discussion will consist in discovering, if possible, some general principle of interpretation by which to test each particular case, and in stating the instances which have been definitely passed upon by the courts.

§ 172. What is a "trustee of an express trust"? The section uses the term in its most general sense without limitation, so that when its full legal signification is ascertained, that must be its meaning in this connection. If the legislature has said, as in New York and other States, that, in addition to its generally accepted technical import, it shall also include certain persons who are not usually, nor perhaps with strict accuracy, denominated "trustees," this exercise of the legislative power within the domain of definition does not change, certainly does not lessen, its signification, as it stands without the explanatory comment. In Ohio, and in several of the States, the phrase is used alone, but accompanied by the clause which is descriptive of another class, and is not a mere partial explanation. We must find the true legal definition of "trustees of an express trust," and add to this the "persons with whom or in whose name contracts are made for the benefit of others;" the combined result

will be the entire class intended by the legislature. It is obvious that the trust must be "express," in contradistinction to implied. In the large number of instances where a trust is raised by implication of law from the acts, circumstances, or relations of the parties, the trustee is certainly not embraced within the language of the provision. An express trust assumes an intention of the parties to create that relation or position, and a direct act of the parties by which it is created in accordance with such intention, outside of the mere operation of the law. In the case of an implied trust, the law, for the purpose of doing justice, and usually for the purpose of working out some equitable remedy, lays hold of the prior situation, acts, or circumstances of the parties, declares that a trust arises therefrom, and imposes the quality of trustee upon one, and of beneficiary upon another, in a manner and with a result that are often the furthest possible from their actual design. In an express trust the parties intend such a relation between themselves, carry out their intention by suitable words, and the law confirms and accomplishes the object which they had in view. An express trust primarily assumes three parties: the one who by proper language creates, grants, confers, or declares the trust; the second who is the recipient of the authority thus conferred; and the third for whose benefit the authority is received and held. It is true that in many instauces the first-named parties are actually but one person; that is, the same individual declares, confers, receives, and holds the authority for the benefit of another; but the theory of the transaction is preserved unaltered, for the single person who creates and holds the authority acts in a double capacity, and thus takes the place of two persons. It is impossible, however, to conceive of an express trust as a legal transaction or condition, without assuming the prior intention, and the express language by which this intention is effected, and the trust created resting upon one as the trustee for the benefit of a second as the beneficiary; and, except as every grant, transfer, or delegation of authority and power is in a certain broad sense a contract, the notion of a contract is not essential to our conception of an express trust. The authority may be conferred by the public acting through governmental machinery, as in the case of officers; or by the intervention of courts, as in the cases of administrators, executors, receivers, and the like; or by private persons, as in innumerable

instances of trusts relating to real or personal property; but there must be the intent to accomplish that very result, and this intent must be expressed by language, or by some process of delegation which the law regards as an equivalent. Furthermore, in its accurate legal signification, a trust implies something which is the subject thereof. Although the word may have a more extensive meaning in its popular use, so that a trust may be spoken of where the trustee is simply clothed with a power to do some personal act unconnected with any property in which he has an interest or over which he has a control, yet this is not its legal import. An illustration of this legal notion of a trustee may be seen in the case of a guardian over the person alone of his ward, without any interest in or power over his estate, or the committee of the person of a lunatic. Such a guardian or committee, although possessing a power to be exercised for the benefit of another, is not a trustee; and the term, when applied to him, could be used only in a popular and not a legal sense. Such a guardian or committee would not therefore, by virtue merely of the permission granted in the provision of the statute under examination, be entitled to sue in his own name as a trustee of an express trust. In the light of this analysis of the expression as a term of legal import, it is plain that "a person with whom or in whose name a contract is made for the benefit of another," is not necessarily a trustee. He may be; and whether he is or is not, must depend entirely upon the nature and subject-matter of the contract itself. The contract may be of such a kind, stipulating concerning property in such a manner, that the contracting party will be made a trustee. On the other hand, it may be of such a kind, having no reference perhaps to property, or stipulating for personal acts alone, that the contracting party will not be a trustee in any proper sense of the word, but will be at most an agent of the person beneficially interested. There are numerous instances, therefore, in which an agent, who enters into an agreement for either a known or for an unknown principal, is permitted, in accordance with the particular clause under consideration, to sue in his own name.

§ 173. I shall proceed to show, in the first place, how far the foregoing description is sustained by judicial authority. Few cases have attempted to define the phrase, "trustee of an express trust," in any comprehensive manner, for the courts have in most

cases been content with determining whether the particular instance before them fell within the term. The following definitions or descriptions, however, have been given: "An express trust is simply a trust created by the direct and positive acts of the parties, by some writing, or deed, or will. And it is to be observed, in reference to § 4 of the code [of Indiana], that it does not assume to define the meaning of the term 'trustee of an express trust' in its general sense; it simply declares that these words, within the meaning of the section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.' Evidently this provision was not intended to limit the meaning of the general term, express trust,' or to confine the operation of the statute to the particular class of cases referred to, but rather to enlarge its sense by including also that class within it."1 In another case it was said: "In order to constitute a trustee of an express trust, as I understand the statute, there must be some express agreement to that effect, or something which in law is equivalent to such an agreement. The case of factors and mercantile agents may or may not constitute an exception under the custom and usage of merchants. But in every other case the trust must, I think, be expressed by some agreement of the parties, not necessarily, perhaps, in writing, but either written or verbal, according to the nature of the transaction. In this case no agreement is shown that the plaintiff was to take or hold as trustee, and that he is a trustee results merely from other circumstances. It is implied from the fact of partnership, and from the fact that the plaintiff received the assignment on account of a debt due the firm. If it is not a case purely of implied trust, as distinguished from an express trust, then I am at loss to conceive of one; and to hold the plaintiff to be a trustee of an express trust would, in my judgment, be a palpable disregard of the statute, and a violation of the intent of the legislature."2 In a case where a contract in the nature of a

1 Weaver v. Trustees of the Wabash, &c., Canal Co., 28 Ind. 112, 119.

2 Robbins v. Deverill, 20 Wisc. 142, per Dixon C. J. This was an action by the plaintiff as assignee of P. & W. The assignment was in writing, but was taken on account of a debt due from P. & W. to the firm of R. & L., which consisted of the plaintiff and the two

others, with an understanding that P. & W. were not to be credited on their debt to R. & L. until the money was collected. Dixon C. J. said: "The demand was transferred to the plaintiff alone by words of absolute assignment, no trust being expressed. . . . Upon these facts the plaintiff cannot recover. He is not the real party in interest, nor the trustee of

lease was effected by a person describing himself in the instrument as agent of the owners, but who had no interest whatever in the premises leased, and did not execute the instrument, and to whom no promise was made as the lessor, it was held that he could not maintain an action for the rent or for possession of the land forfeited by non-payment of the rent. He could not sue as the "person with whom, or in whose name, a contract is made for the benefit of another," because no promise at all was made to him, and he was not a "trustee of an express trust." The court said: "One who contracts merely as the agent of another, and has no personal interest in the contract, is not the trustee of an express trust within the meaning of the statute, and cannot, under the code, sue upon such contract in his own name." Of course this last expression must be taken in connection with the facts of the case; namely, that no promise was made to the plaintiff individually.1

§ 174. The nature of an express trust, and the classes of persons embraced within the statutory phrases in question, were determined, upon great consideration by the New York Court of Appeals, in the leading case of Considerant v. Brisbane.2 The term trustee of an express trust' had acquired a technical and statutory meaning. Express trusts, at least after the time of the adoption of the [New York] Revised Statutes, were defined to be trusts created by the direct and positive acts of the parties, by some writing, or deed, or will; and the Revised Statutes had abolished all express trusts except those therein enumerated

an express trust, within the meaning of the statute. He is not a trustee of an express trust, because no such trust appears from the assignment, and none is shown to exist between himself and his copartners by virtue of any other instrument." He then adds the remark quoted in the text.

1 Rawlings v. Fuller, 81 Ind. 255. Fuller sued on the following agreement: "Articles of agreement between B. F. Fuller and M. Rawlings: I, B. F. Fuller, agent for Sarah Floyd's heirs' property, do agree to rent [certain premises] to M. Rawlings for [a certain rent], and on the failure on the part of the said M. Rawlings to pay said rent on the first day of every month in advance, then it is hereby agreed between B. F. Fuller, landlord,

and M. Rawlings, tenant, that the above contract is at an end, and B. F. Fuller shall be entitled to take possession of said property." The complaint alleged rent unpaid, and demanded possession and the amount of rent due. The court said: "It will be observed that the complaint does not assert any claim of title in Fuller. The contract is not signed by Fuller, and does not, in express terms, contain a promise to pay rent to him. It describes him as agent of the property, and expressly states that it belongs to the heirs of S. Floyd. We do not think the facts constitute Fuller a trustee of an express trust," adding the language quoted in the text.

2 Considerant v. Brisbane, 22 N. Y. 389, 395, per Wright J.