Page:Harvard Law Review Volume 1.djvu/208

 of consideration, which is essential to a contract, but they must now be recognized as an established anomaly.

To charge a person with a voluntary trust, it must be shown that he has declared himself trustee of specific property in favor of the alleged cestui que trust. The property must be specific, for one of the essential elements of a trust is a res, to which the trust can attach. If the property is realty, the declaration of trust must be proved by a writing signed by the trustee; but, if the property is personalty, the declaration or admission may be proved by any evidence. As a declaration of trust is an expression of intention, a person cannot be charged as trustee if it appears that he did not intend to make himself trustee. It follows that an imperfect gift should not be construed as a declaration of trust. Thus, a father, desiring to make his daughter a present, bought $2.000 worth of bonds, but, at her request, kept them himself, and remitted the interest to her. On his death it was held that she could not recover from the administrators, for the gift was not complete without a delivery of the bonds, and the Court could not make a trust out of an imperfect gift.

The apparent meaning of a declaration or admission may be rebutted. Thus, if A, as “trustee for B,” deposits money in a bank, and there is nothing to disprove the apparent intention, there is an irrevocable trust; and the trust is not the less effectually created if A retains the passbook, and gives no notice to B. But, if it appears that the deposit was not intended for B’s benefit, the presumption of a trust is rebutted.

On the same principle, what appears to have been a gift may be shown not to have been so intended. Thus, a deposit in a bank by A, in the name of B, is a complete gift to B, if so intended by A, and B may charge the bank for money had and received. But, if a contrary intention is shown, B will hold as trustee for A.

The same principle applies to policies of life insurance taken out by A in B’s name, or to stock entered by A in B’s name on the books of the company. Thus, in Standing v. Bowring, it appeared that the plaintiff bought stock and entered it on the company’s books in the name of the defendant, her godson, intending it as a gift; but she did not notify him. She afterwards married, and then requested him to transfer the stock to her. This he refused to do, and the Court held that the gift must be sustained, since the presumption of a gift had not been rebutted.