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 TRUSTS

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TRUSTS

members of the church cannot control the action of the trustees contrary to the uses and regulations of the church. A court has no authority to control the ex- ercise of the judgment or discretion of the officers of a church in the management of its funds so long as they do not violate its constitutions or by-laws. Excom- munication does not always remove an officer of a church corporation. The legal rights of a bishop in regard to the temporalities of a church, where they are not prescribed by the civil law, must rest, if at all, upon the ecclesiastical law, which must be deter- mined by evidence. When property is conveyed to a church having well-known doctrine, faith, and prac- tice, a majority of the members has not the au- thority or power, by reason of a change of religious views, to carry the property thus designated to a new and different doctrine. The title to church property is in that part of the congregation which acts in har- mony with the law of the denomination; and the ecclesiastical laws and principles which were accepted before the dispute began are the standard for deter- mining which party is right.

Taunton, The Law of the Church (London, 1906), s. w. Fabric- Administration; Ecclesiastical Property; Scanlan, The Law of Church and Grave (New York. 1909) ; Smith, Notes on II Council of Baltimore (New York, 1874). x; Concilium Plenarium III Baltimorense (Baltimore, 1886); Webnz, Jus Decretalium, III (Rome, 1901).

William H. W. Fanning.

Trusts and Bequests. — A trust has been defined, in its technical sense, as the right enforceable solely in equity to the beneficial enjoyment of property of which the legal title is in another (Bispham, "Equity ", p. 68), and as a right of property, real or personal, held by one party for the benefit of another. (Bouvier, "Law Diet.", s.v Trusts.) It impUes two interests, one in equity and one in law — an individual to hold the legal title, who is known as the trustee, and another as beneficiary, known as the cestui que trust. The term "trust" is applied sometimes to the equitable title, the obligation of the trustee, or the right which is held in trust. For the creation of a valid trust there are three essentials: a definite subject matter within the disposal of the settlor; a lawful definite object to which the subject matter is to be devoted; clear and unequivocal words or acts devoting the subject matter to the object of the trust (28 Am. and Eng. Ency. of Law, 866, title "Trusts and Trustees"). No specific words are required in the creation of a trust, but they must be sufficient to express the pres- ent intent to place a beneficial interest in a specific property in the hands of a trustee beyond the control of the person or persons who are to enjoy the benefit thereof. Any property, real, personal, or equitable, may be the subject of a tru.st, except in a few cases where statutes have provided to the contrary.

The English Statute of Frauds, which has been enacted in most of the United States in some of its provisions, provides that all trusts of land should be proved and manifested by writing. But trusts of personal property are not within the statute; there- fore a valid trust of such property may be created verbally, but tran.sfers of existing trusts must be in writing. Under the Roman Law trusts were created for the purpose of empowering certain individuals to inherit property. These trusts were known as fidci cnmmissa and for their benefit a separate equi- table juri.sdiction was established. There has been some controversy as to whether the English trust is an outcome of the Roman institution or not. The difference between the two is that the latter is a means of carrying out substitutions, while the former separates the ownership and enjoyment of the bene- fits of an estate, the fundamental idea at the root of both being much the same. This system seems to have appeared in England iinder the reign of Edward III, for the purpose of avoiding the Statiitesof Mort- main, which had been pa.s.scd to check the growl h of

landed estates in the hands of rehgious houses. These trusts were abohshed, except as to certain gifts or grants, by the pa.ssage of the Statute of Lfses, known as the 27th Henry VIII, which held that any person entitled to the use of an estate should have the title to it. This statute has either been recognized as part of the common law in most of the United States through judicial interpretation or been enacted by legislation.

Trusts are either executed or executory, express or implied. In an executed trust the instrument must be interpreted according to the rules of law, even though the intention may be defeated. A court of equity will take jurisdiction for the purpose of carry- ing out executory trusts and seeing that the instru- ment which purports to fulfil the intention of the settlor really does so, and will reform conveyances where the intentions of the settlor have not been clearly set out. An express tru.st is one which is created by the direct words of the settlor. ImpUed trusts are those which arise when the terms or cir- cumstances do not specifically express but simply imply a trust. Where the entire intention of the trust cannot be carried out without violating some rule of law or public policy, equity will carry it out as nearly as possible. Constructive trusts arise bj' a construction put by a court of equity on the conduct of the parties. The Statute of Frauds 29th Charles II requires that declarations of trust of lands should be proved by writing.

Who May Be a Trustee. — Any person worthy of confidence and possessed of the power to hold real or personal property may be a trustee, the sovereign in England, any of the states of the LIniteil States, and perhaps the Federal Government, a public officer in his private capacity or the settlor himself; even the beneficiary or cestui que trv^t may act as trustee providing there are other beneficiaries besides himself; so too a corporation may act in this capacity if not precluded by the terms of its charter. Municipal corporations have been trustees but the general trend of authority is to the contrary. Married women may be trustees and, acting under the direc- tion of the court, an infant, alien, or lunatic. In cases where no trustee has been named, or for some reason the office has become vacant, the court will supply the deficiency rather than allow the trust to fall, it being inherent in a court of equity to exercise this power, while in many jurisdictions it has been specifically granted by statute. As a general rule, the trustee is appointed by the settlor and provision made for his successors. The settlor may designate whomsoever he wishes and vest in that person the power to appoint succeeding trustees, though some- times the power is placed with the cestui que trust and sometimes with the settlor. The number of trustees is governed by the piovisions of the instrument of the trust, but as a general thing the courts look unfavour- ably upon single trustees, particularly in the cases of large estates or those for infants or lunatics.

There is no particular method by which a trustee accepts a trust. His actions in the matter are usually equivalent to acceptance, although sometimes he joins in the instrument if it is a conveyance. There are, however, but three ways by which he may be relieved: first, the consent of all parties in interest; second, by virtue of the provisions of the instrument of trust; and third, with the consent of the court. The old rule in Englimd forbade a trustee retiring on his own motion, but tin- modern rule is different except where it is impossible to provide a substitute. The con- duct sufficient for. the removal of a trustee from his office must be such ;is to endanger the trust funds, and the courts will not look favourably upon light or frivoIo\is whims and disagreements among the parties. The iiowers of ttiislcrs are general and special — those which arise by construction of law incident to the