duced into assignments of terms for protecting the inheritance, and into marriage settlements for preserving contingent remainders, and raising portions for younger children. All these passive or formal trusts he proposes, in his Outlines of a Code, to abolish, as useless or mischievous, and to prescribe regulations to active trusts, with a reservation of the existing cases of a resulting trust.

(3.) Restricted in New-York.

The New-York Revised Statutes,a in relation to trusts, seem to have adopted these, or similar suggestions; and they have abolished passive trusts where the trustee has only a naked and formal title, and the whole beneficial interest, or right in equity, to the possession and profits of land, is vested in the person for whose benefit the trust was created. The statute declares, that the person so entitled in interest shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions, as his beneficial interest.b

■ Vol. i. 727, sec. 47. 49.

b Lands, tenements and real estate, held in trust by one person for the use of another, are consequently made liable to debts, judgments, decrees, executions and attachments, against the person to whose use they are holden. New-York Revised Statutes, vol. ii. 368. sec. 26. This had always been the law of New-York, and the statute of 1787, (sess. 10. c. 37. sec. 4,) re-enacted, verbatim, the statute of 29 Charles II. c. 3. sec. 10, on this subject. It rendered liable, on an execution at law against the estate of a cestui que trust, the lands of which he had the whole or entire beneficial interest, and the trustee only a mere naked legal title. But it did not apply to cases in which the cestui que trust had only an equitable interest in an im perfect state, or a special trust created for his benefit without being liable for his debts, or when the trustee, having the legal title, was entitled to retain it until some further act, as payment or otherwise, was done by the cestui que trust. Foote v. Colvin, 3 Johns. Rep. 216. Bogart v. Perry, 1 Johns. Ch. Rep. 52. S. C. 17 Johns. Rep. 351. The same law taken from the English statute prevails in other states. Richards v. M'Kie, State Eq. Rep. S. C. 184. Hopkins v. Stump, 2 Harr. & Johns. 301. Vaux v. Parke, 7 Watts & Serg. 179. Fisher v. Taylor, 2 Rawle, 33. Goodwin v. Anderson, 5 Smedes & Marshall, 730. Thornhill v. Gilmer, 4 Smedes & Marshall, 153. Shute v. Harder, 1 Yerger's Tenn. Rep. 1. Revised Statutes of Indiana, 1838. But not in New-Jersey, as see supra, vol. ii. 443. A judgment under the statute of uses which authorized a sale of the equitable interest in real estate of a judgment debtor, did not bind the equitable interest as against a bona fide purchaser from the time of docketing the judgment, but only from the time of issuing the execution. Hunt v. Coles, Comyn's Rep. 226. Harris v. Pugh, 12 J. B. Moore, 517. In Tennessee, entries or locations of land held by the debtor are vendible on execution. Statute Laws of Tennessee, 1836, p. 280. So is a re

If any such passive trust be created by any disposition of lands by deeds or devise, no estate or interest whatever vests in the trustee. This provision is founded in sound policy.

The revisers have justly observed, that the separation *309 of the legal and equitable estates in every such case, appears to answer no good purpose, and it tends to mislead the public, and obscure titles, and facilitate fraud. The New-York statute has confined trusts to two classes: (1.) Trusts arising or resulting by implication of law. The existence of these trusts is necessary to prevent fraud; but they are laid under certain restrictions calculated to prevent the revival of passive, in the shape of resulting trusts. It is accordingly provided, that where a grant for a valuable consideration shall be made to one person, and the consideration paid by another, no trust shall result in favour of the person paying the money, if the conveyance was so made by consent of the owner of the fund; but the title shall vest in the alienee, subject to the claims of the existing creditors of the person paying the money. The resulting trust will still be valid, however, if the alienee took the deed in his own name, without the knowledge or consent of the person paying the money, or in violation of some trust. Nor can a resulting trust be set up to affect the title of a purchaser for a valuable consideration, without notice of the trust. (2.) Active trusts are, where the trustee is clothed with some actual power of disposition or management, which cannot be properly exercised without giving him the legal estate and actual posses

sulting trust, being an equitable interest. Pool v. Glover, 2 Iredell N. C. Rep, 129. But where the legal estate is in a trustee, and the trust so requires it, the trust estate cannot be sold on execution. Davis v. Garrett, 3 Iredell, 459.

New-York Revised Statutes, vol. i. 728. sec. 50-54.

⚫ Norton v. Stone, 8 Paige Rep. 222. The statute provision gives the like effect to such conveyances as equity had already given to voluntary conveyances. They are void as against existing creditors; but if the party be not indebted, and the case be free from fraud in fact, they are good as against subsequent creditors. Battersbee v. Farrington, 1 Swanston, 106. Reade v. Livingston, 3 Johns. Ch. Rep. 481. (1) The statute is silent as to subsequent creditors in that case; but it is to be presumed, that they would also be entitled to relief, according to the doctrine in Reade v. Livingston, if there was sufficient ground to infer a fraudulent intent.

(1) Wright v. Douglass, 3 Barb. S. C. Rep. 556.

sion. This is the only efficient class of trusts, and they are indispensable to the proper enjoyment and management of property. All the provisions in the statute on the subject of trusts, are intended to limit their continuance, and define their purposes; and express trusts are allowed in those cases only in which the *purposes of the trust require *310 that the legal estate should pass to the trustees.a

Express or active trusts are allowed, (1.) To sell lands for the benefit of creditors; (2.) To sell, mortgage or lease lands, or for the purpose of satisfying any charge thereon;b (3.) To receive the rents and profits of lands, and apply them to the use of any person ; (1) or to accumulate the same for the purposes

Express trusts are abolished in Louisiana by their civil code, art. 1507, but implied trusts, which are the creatures of equity, have not been abrogated, and the Circuit Court of the United States exercises chancery jurisdiction in Louisiana, though not upon any new or foreign principle, but only by changing the mode of redressing wrongs and protecting rights. Gaines v. Chew, 2 Howard U. S. Rep. 619.

In Darling v. Rogers, the Chancellor of New-York decided, that an assignment of real estate for the benefit of creditors to assignees in trust to sell or mortgage the same, was void, inasmuch as the word charge in the statute was confined to provisions by devise, and that the assignment, being void in that respect, was wholly void. But the court of errors, on appeal, in December, 1839, reversed the decree on both points. The power to mortgage was valid, as the word charge comprehended incumbrances, and even if not valid, the other provisions in the assignment, not being inextricably mingled with the former, remained good. If a deed contains a provision which is illegal and void, whether by statute or common law, and bas another independent provision which is good, the deed shall stand good as to the latter provision. Darling v. Rogers, 22 Wendell's Rep. 483. Adams' and Lambert's Case, 4 Co. 104. b. S. C. Moore's Rep. 648, and the cases there cited.

• New-York Revised Statutes, vol. i. 728. sec. 55. Laws of New-York, sess. 53. c. 320. sec. 10; passed April 20th, 1830. This last act was in amendment of the New-York Revised Statutes, which had too much limited the application of this third class of trusts. Ch. J. Savage, in the great case of Coster v. Lorillard, decided in the court of errors of New-York, in 1835, (14 Wendell, 265,) was led to make some observations on the third class of active trusts, allowed by the statute, which are rather startling, and calculated to increase our regret at the legislative attempt to reduce all trusts to the three specific objects mentioned. A conveyance in trust to receive rents and profits, and pay over, was a familiar trust at common law, ( 36 Hen. VIII.1 Cruise's Dig. 12. 1. 12,) but the Revised Statutes abolish all trusts except those expressly authorized, and no trust to receive rents and profits,

(1) Where a trust, under the clause of the Revised Statutes cited in the text, was created for the separate use of a married woman, it was held, she has no separate estate that, by her act, can be rendered chargeable with her debts. Noyes v. Blakeman, 8 Sandf. S. C. Rep. 531.

and within the limits already mentioned. In all these cases, the whole estate in law and equity is vested in the trustee, subject only to the execution of the trusts; and if an express trust be created for any other purpose, no estate vests in the trustee; though, if the trust authorizes the performance of any act lawful under a power, it becomes valid as a power in trust. Every estate and interest not embraced in an express trust, and not otherwise disposed of, remains in, or reverts to the person who created the trust; and he may dispose of the lands subject to the trust, or in the event of the failure or termination of the trust; and the grantee or devisee will have a legal estate, as against all persons but the trustee. The

and pay them over to another, is authorized or valid. The provision in the statute is to receive the rents and profits, and apply them to the use of another. The Ch. J. says, he is not to pay over, he is to apply them to the use, and which must mean to provide means and pay debts. He is to judge of the propriety of the expenditures. He has the whole estate, legal and equitable, and the whole management of it. The cestui que trust has no estate, but only a right to enforce the trust in equity. A trust to receive and pay over, gives to cestui que trust an equitable estate, but the statute permits no such trust. The trust to receive and apply was intended for the cases of minors, married women, lunatics and spendthrifts. If this construction be correct, what inconveniences have been produced by the statutory demolition of the system of trusts? Who would be a trustee, and be bound to look into, and judge of, and pay all the expenditures of a married woman, or of an absent friend, or of the aged or infirm, who stood in need of the agency of a trustee? But the severity of this construction has been since relaxed, and in the case of Gott v. Cook, 7 Paige Rep. 521, the chancellor concluded that the person who creates a trust to receive rents and profits or income for the use of another, might direct the manner in which they should be applied, and that he might direct them to be paid over from time to time to the cestui que trust, to enable him to provide himself with necessaries. (1)

New-York Revised Statutes, vol. i. 728, 729, sec. 55. 58. 60, 61, 62. The rule, independent of statute is, that trustees take that quantity of interest only which the purposes of the trust require, and the instrument creating it permits. The legal estate is in them so long as the execution of the trust requires it, and no longer, and then it vests in the person beneficially entitled. Bayley, J., in Doe v. Nicholls, 1 Barnw. & Cress. 336. Denman, Ch. J., in Doe v. Ellis, 4 Adolph. & Ellis, 582. Doe v. Simpson, 5 East's Rep. 162. Doe v. Needs, 2 Mees. & Wels. 129. Doe v. Timins, 1 Barnw. & Ald. 530. The modern chancery cases of Stan

(1) The opinion of the learned chancellor is now established in the court of last resort. In Leggett v. Perkins, 2 Comst. R. 297, it was held, that a trust to receive the rents and profits of land, and pay them over to the beneficiary, was valid. Mr. Justice Bronson delivered a dissenting opinion, which he closes with the striking remark-"That a great question, which had been litigated more than fifteen years, was at last settled by a single vote, and that vote governed by a supposed decision, which he verily believed had never been made."

declaration of the trust must be contained in the conveyance to the trustee, or the conveyance will be deemed absolute as against the subsequent creditors of the trustee, without notice of the trust, or as against purchasers for a valuable consideration, and without notice;a and when the trust is expressed in the instrument creating the estate, every act of the trustee in contravention of the trust is *void. So, if *311 the trust be to receive the rents and profits of land, and apply them to the use of any person during the life of such

ton v. Hall, 2 Russ. & Mylne, 175, and Tyler v. Lake, 4 Simons, 144. S. C. 2 Russ. & Mylne, 183, carried the marital rights or claim over property vested in trustees for the wife, to a great extent, and a rule of rigid construction against any separate beneficial interest in the wife was adopted, as being repugnant to the common law principles of the jus mariti. But the elder cases, and other and more reasonable rules of construction, have supported the separate interest of the wife under deeds of settlement, according to the interest and equity of the case, and have upheld the technical rights of the trustees against any future husband, when such an intention was reasonably and fairly to be inferred from the language, and spirit, and object of the deed of settlement. Such appears to be the doctrine in the cases of Nevil v. Saunders, 1 Vern. 414. Jones v. Lords Say and Seal, 1 Eq. Cas. Abr. 383, pl. 4. S. C. 8 Viner, 262, pl. 19, (Lord Kenyon said that the case was best reported in Viner, and was good law.) Dixon v. Olmius, 2 Cox's Cas. 414. Doe v. Wellan, 2 Barnw. & Ald. 84. Wagstaff v. Smith, 9 Vesey, 519. Doe v. Scott, 4 Bingham, 505.

This is only declaratory of what was the law before. Preston on Abstracts, vol. ii. 230. Saunders on Uses and Trusts, 219. And it follows, of course, that the trust attaches upon the purchaser with notice of it, unless he be a purchaser from a person who had purchased for a valuable consideration without notice. Lowther v. Carlton, 2 Atk. Rep. 241; and see, supra, p. 179.

b New-York Revised Statutes, vol. i. 730, sec. 64, 65. In Louisiana, a man may transfer property to another, to stand in the other's name for his use. Hope v. State Bank, 4 Miller's Rep. 212. The relation of trustee once established, pervades every transaction respecting the trust property, until it is dissolved, and the cestui que trust may pursue the property through every mutation, if the change was effected by the schemes of the trustee, and the property or its proceeds come back to him. De Bevoise v. Sandford, 1 Hoffman's Ch. Rep. 192.

A trustee of a charity cannot alienate, nor grant long or perpetual leases, and the cestui que trust may pursue the land in the hands of the purchaser chargeable with notice. Blackston v. Hemsworth Hospital, Duke's Charitable Uses, 644. Lydiatt v. Fouch, 2 Vern. 410. Lewin on Trusts, 404. Attorney-General v. Green, 6 Vesey, 452. But in a proper case, trustees of a charity have power to alienate the charity property. Master of the Rolls, in Attorney-General v. S. Sea Company, 4 Bevan, 453.

A bequest by will to executors in trust to send the testator's slaves to Liberia, there to remain free, is a valid trust, and a bill by the heirs to set aside the will dismissed. Ross v. Vertner, 5 Howard's Rep. 305.