an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created and the creation of a trust does not depend on the use of any particular form of words, but it may be inferred from the facts and circumstances of the case. However, in order to create a trust in the donor, there must be an act or series of acts, sufficient to divest him of the equitable ownership, and vest such ownership in the donees. Thus where a wife did not take an absolute estate in the residuum of the property after the payment of the legacies, the executors took the legal title to the residue and the wife took the equitable title. Where a testator made provisions in his will as follows: He gave to his wife the homestead, furniture, etc., for life, directing the executors to pay all the taxes and repairs on the homestead and to pay her a specified amount per annum during her natural life, and bequeathed the residue of his estate to his children, a charge was created on the estate in the form of a trust1o. It is manifest that a bequest of a fund to trustees "to invest, and from time to time reinvest, in such income-producing investment as they shall deem for the best interests of the trust," creates a valid trust11. Where a testator, by his last will, gave to his son and only child, a minor, at the age of 21, $3000, and $1000 annually thereafter, until 25 years old, when he was to Mich. 497, 67 N. W. 551. 7. O'Neil v. Greenwood, 106 Mich. 572, 64 N. W. 511. 8. O'Neil v. Greenwood, 106 Mich. 572, 64 N. W. 511. 9. Barnes V. Marshall, 102 Mich. 248, 60 N. W. 468. 10. Dean v. Mumford, 102 Mich. 510, 61 N. W. 7. 11. Caspari v. Cutcheon, 110 Mich. 86; 67 N. W. 1093; King v. Merritt, 67 Mich. 194, 34 N. W. 689; Haddon v. Hemingway, 39 Mich. 615; Battelle v. Parks, 2 Mich. 531. have $10,000 more, if, in the opinion of the executors named, he had used the amounts received in a judicious, frugal manner; and at the age of 35 years, or sooner, if the executors thought best, and upon the same conditions he was to receive the possession of the balance of the father's estate, both real and personal, not otherwise disposed of under the will; but if at 20, and after the receipt of the $10,000, the son had squandered and wasted what he then had received, and if in the opinion of the executors, he would continue to do so, he then was to receive but the $1000 annually, and the estate, subject to the other provisions of the will, was to go to the legal issue of the son, and, if he died without issue, it was then to pass to the legal heirs of the testator and no trust estate passed to the executors for they were only executors with certain additional powers12. $167. Precatory Words. The essence of the doctrine of precatory trusts is that the words creating them, while in form the expression of a request, wish, or recommendation on the part of the testator, are, in fact, intended by him as a positive direction or command obligatory upon the person to whom they are addressed13. Where the testator had no legal authority, independent of contract, to direct by will what disposition should be made of the real estate, no precatory trust resulted11. 12. Perrin V. Lepper, 72 Mich. 454, 40 N. W. 859; Rock River Paper Co. v. Fisk, 47 Mich. 212, 10 N. W. 344. 13. Trustees of Hillsdale College v. Wood, 145 Mich. 657, 108 N. W. 675. 14. Trustees of Hillsdale College v. Wood, 145 Mich. 657, 108 N. W. 675. §168. Purposes of Trusts. Trusts are not uncommon. They appear frequently in one form or another. It is manifest that by means of a trust a variety of objects can be carried out, such as, providing for the support of minors, incompetents, invalids, married women and spendthrifts; establishing of charities; granting of annuities; paying off of debts and incumbrances; prolonging the time of the administration beyond the time given by statute so as to protect the property from sacrifice and forced sale and continuing the business of the testator15. Necessarily all such trusts are express trusts and usually active and in most cases the duties consist in nothing more than collecting and paying over the income. However, there is a distinction between an express trust for an indefinite purpose, and those cases where, from the indefinite nature of the purpose, the court concludes that a proper trust could not have been intended, though words may have been used, which, had the objects been definite, would by construction impart a trust. In the first description of cases the devisee does not take beneficially; in the latter, he does. A residuum in a will which provides that the trustee shall appropriate it to defraying the expense of the trust, or in such other or different manner as he may deem best, is indefinite in purpose and does not mean that it is a disposition of property in favor of the trustee, but, to the contrary, the property goes to the heirs the same as if the testator had died intestate16. 15. Ward v. Ward, 17 D. L. N. 929. 16. Abrey v. Duffield, 149 §169. Construction of Testamentary Trusts. It is manifest that no general rule can be laid down for the purpose of determining when a devise or bequest in a will carries with it a beneficial interest. The intention can only be gathered from the general and natural scope of the instrument. In a case where a devise to sons of the testator was upon a trust expressly declared in the will, for the support of the wife of the deceased and to work the farm in a good and workmanlike manner, and the devise was upon the further trust to the executors, ancillary to that imposed upon the sons, "to see that all the conditions of this, my last will and testament, are fully carried out and performed as herein expressed," this devise is construed as not vesting an estate in the sons which is subject to execution and sale for the purpose of satisfying their debts17. §170. Duties of Trustees. When a man dies he ceases to be owner of his property and all his property, both real and personal, must pass to some other person. The general rule is that the legal title to the real estate, not otherwise disposed of, vests in the heirs at law, while the legal title to personalty vests primarily in the executor. The duties of an executor are in the nature of a trust. But they are prescribed by law and are under the supervision of the probate court. It is not infrequent that the executor is burdened with the duties of a trustee. The duties of a trustee depend upon 17. Lee v. Enos, 97 Mich. v. Chapin, 77 Mich. 526, 7 L. 277, 56 N. W. 550. See Bennett R. A. 377, 43 N. W. 893. the nature of the trust. It may be said that a trustee in that capacity has limited powers and very few rights by law. He has practically no discretion. The powers he may exercise are such as are conferred upon him by the instrument creating the trust. The question of discretion is rather narrowly construed, for it is generally personal to the trustee named, and it cannot be extended beyond the circumstances foreseen and provided for by the testator. It is settled that the power of discretion given to trustees jointly cannot be exercised independently by one of them18. Trustees are prohibited from accepting benefits that are not provided for by the trust19. Where in a will something is directed to be done which in its nature is proper subject for trusts, the executor may be called upon to act as trustee by implication. In a case of this kind it is advisable to keep the duties of the executor distinct from those of the trustee. It does not follow that the trusteeship merges in the executorship where both functions are performed by one and the same person. Where a will made the executor also trustee, the receipt of the property on the final settlement with the executor did not estop the cestui que trust from requiring an accounting by the trustee for the moneys and property that came into his hands under the trust20. In such cases the proper course for the executor to pursue is first to discharge his duties as executor by winding up and properly distributing the estate, and by paying over to himself as such trustee all the property left in trust and then to proceed to manage the property as trustee for the benefit of the 18. Loud v. Winchester, 52 Mich. 174, 17 N. W. 784. Mich. 174, 17 N. W. 784. 19. Loud v. Winchester, 52 20. Worden V. Kerr, 91 Mich. 188, 51 N. W. 937. |