the wife full control of her property, and freeing it from the control of her husband, it has been decided that the reason for the rule no longer exists, and that the statute will execute the use, if not involving active duties on the part of the trustee.5

Uses in chattel interests.

A second class of uses not executed by the statute were those declared on a term of years or other chattel interest, since the statute expressly stated that, to bring it into operation, one person must be "seised" to the use of another, and this word applies only to the possession of freehold interests in land. Accordingly, if one leases land to A. for a term of years to the use of B., since A. has merely a chattel interest, the statute does not apply.57 But this rule does not prevent the execution of a use of a term of years which is raised on

16 Pick. (Mass.) 331; Pittsfield Sav. Bank v. Berry, 63 N. H. 109; Richardson v. Stodder, 100 Mass. 528; Escheator of St. P. & St. M. v. Smith, 4 McCord (S. C.) 452; Bowen v. Chase, 94 U. S. 812; Lancaster v. Dolan, 1 Rawle (Pa.) 251; Pullen V. Rianhard, 1 Whart. (Pa.) 514, Finch's Cas. 95; Steacy v. Rice, 27 Pa. St. 75, 67 Am. Dec. 447; Moore v. Stinson, 144 Mass. 594; Walton v. Drumtra, 152 Mo. 489; Dean v. Long, 122 Ill. 447; Frey v. Allen, 9 App. D. C. 400. Compare Williams v. Waters, 14 Mees. & W. 166; Nightingale v. Hidden, 7 R. I. 115.

In Pennsylvania it is held that, in the case of a trust for the separate use of a woman, if she is not married, or the declaration is not made in contemplation of marriage, the use is executed, even though active duties are imposed. Snyder's Appeal, 92 Pa. St. 504; Kuntzleman's Estate, 136 Pa. St. 142, 20 Am. St. Rep. 909; 2 Pomeroy, Eq. Jur. § 986, note.

* Georgia, C. & N. Ry. Co. v. Scott, 38 S. C. 34; Sutton v. Alken, 62 Ga. 733.

57 Bacon, St. Uses, 42; 1 Sanders, Uses & Trusts, 275; 1 Cruise's Dig. tit. 12, c. 1, § 34; 1 Perry, Trusts, §§ 303, 311; Williams v. McConico, 36 Ala. 22; Ure v. Ure, 185 Ill. 216; Slevin v. Brown, 32 Mo. 176; Ramsay v. Marsh, 2 McCord (S. C.) 252, 13 Am. Dec. 717; Denton's Guardians v. Denton's Ex'rs, 17 Md. 403.

a seisin of a freehold, and in fact, as shown above, the conveyance by lease and release is based on the execution of such use 58

Use to legal grantee.

A use limited to the grantee of the legal estate was not regarded as within the statute, which applied in terms to cases where one person was seised to the use of "another” person. So, on a conveyance to A. and his heirs to the use of A. and his heirs, the use is not executed by the statute, and the grantee takes the estate at common law, coupled with the use therein, the declaration of the use merely serving to rebut the presumption of a resulting use, and also serving, on occasion, to limit the estate taken by the grantee.59 If, however, there be some person named in the declaration of the use who is not named in the grant, as in the case of a con veyance to A. to the use of A. and B. and their heirs, the Statute of Uses applies, and the use is executed, in the above case, in A. and B.60

Use upon a use.

Thus,

Another case in which the use is not executed by the statute occurs in the case of a use limited upon a use. in the case of a feoffment to A. and his heirs, to the use of B. and his heirs, to the use of C. and his heirs, the first use is executed by the statute in B., he thus acquiring the legal title, while the second use, to C., is not executed."1

58 2 Sanders, Uses & Trusts, 61.

591 Sanders, Uses & Trusts, 89; Meredith v. Joans, Cro. Car. 244, 1 Gray's Cas. 515; 1 Cruise's Dig. tit. 11, c. 3, §§ 27-29; Orme's Case, L. R. 8 C. P. 281, 1 Gray's Cas. 525; Peacock v. Eastland, L. R. 10 Eq. 17, 1 Gray's Cas. 520. See Lloyd v. Passingham, 6 Barn. & C. 305, 1 Gray's Cas. 516.

60 Sammes' Case, 13 Coke, 54, 1 Gray's Cas. 511; Williams, Settlement, 5.

11 Sanders, Uses & Trusts, 275; 1 Perry, Trusts, §§ 301, 804;

On the same principle, in the case of a bargain and sale to A. with a declaration of a use to B., the use raised in A. by the giving of consideration is executed in him by the statute, while the use expressly declared remains unexecuted.62

Even where the first use is to the feoffee himself, as in the case of a conveyance to A. and his heirs, to the use of A. and his heirs, to the use of (or in trust for) B., though the first use is not executed, A. being in by the common law,63 the use exDurant v. Ritchie, 4 Mason, 65, Fed. Cas. No. 4,190; Croxall v. Shererd, 5 Wall. (U. S.) 268; Hutchins v. Heywood, 50 N. H. 491; Reid v. Gordon, 35 Md. 183; Guest v. Farley, 19 Mo. 147; Ramsay v. Marsh, 2 McCord (S. C.) 252, 13 Am. Dec. 717; Blount v. Walker, 31 S. C. 13.

62 Tyrrel's Case, Dyer, 155a, 1 Gray's Cas. 510; Croxall v. Shererd, 5 Wall. (U. S.) 268; Durant v. Ritchie, 4 Mason, 45, 66, Fed. Cas. No. 4,190; Nelson v. Davis, 35 Ind. 474; Guest v. Farley, 19` Mo. 147.

This principle of the nonexecution of a use upon a use, enunciated in Tyrrel's Case, supra, has been the subject of constant animadversion, as being utterly illogical, Mr. Joshua Williams (Real Prop. 160) adopting Mr. Watkins' remark, that "it must have surprised every one who was not sufficiently learned to have lost his common sense." The doctrine has, however, been more recently explained by Prof. J. B. Ames (4 Green Bag, 81) in such a way as to give it a more logical appearance, it being shown by this writer that, even before the statute, it was decided that, if one bargained and sold land to another to the use of the bargainor, the use declared was void, as repugnant to that raised by the consideration; and so, after the statute, the second use was considered as merely repugnant to the first use. This view is adopted in the latest (eighteenth and nineteenth) editions of Williams on Real Property by the editor, Mr. T. Cyprian Williams.

In Massachusetts it has been decided that a conveyance in form one of bargain and sale to A. and his heirs to the use of B. and his heirs may be considered a feoffment to A. to the use of B., so that the use will be executed in B., if this is apparently the intention of the parties. Thatcher v. Omans, 3 Pick. (Mass.) 521; Carr v. Richardson, 157 Mass. 576; Durant v. Ritchie, 4 Mason, 45, 71, Fed. Cas. No. 4,190. In Illinois, the same effect is given to the conveyance, it seems, even apart from the question of intention. Witham v. Brooner, 63 Ill. 344.

63 See ante, note 59.

ists in A., and the use in B. is a use upon a use, and consequently the legal estate is not executed in B."

II. TRUSTS.

A trust in land is an equitable obligation imposed on the holder of the legal title to land, by reason of a confidence reposed in him, or a duty assumed by him, to use and apply such property for the benefit of another person.

A trust may, according to the mode of its creation, be either an express trust, a resulting trust, or a constructive trust.

An express trust, that is, one created by express declaration or agreement, may be created without the use of any technical terms, and without any consideration, but can be, under the Statute of Frauds, proven only by writing.

A resulting trust arises by implication of law, in compliance with the presumed intent of the parties, (1) in favor of the grantor or his heirs, when a conveyance is subject to a trust which does not exhaust the trust property, or which fails, in whole or in part; (2) in favor of one paying a consideration for a conveyance to another person, other than his wife or child.

A constructive trust is one which arises by implication of law, in case one obtains by fraud property to which another is entitled, he being regarded, for some purposes, as trustee for the latter.

The trustee may be discharged by a court of equity, and in such case, or if otherwise a vacancy in the office arises, the court may appoint a trustee.

The duties and powers of the trustee of an express trust are, in general, determined by the terms of the declaration of trust. He is liable for any negligence in the management of the trust property, and can make no profit from the trust other than the compensation allowed him by law.

The title of the trustee is transferable, but it passes subject

4 Lloyd v. Passingham, 6 Barn. & C. 305, 1 Gray's Cas. 51; Whetstone v. Bury, 2 P. Wms. 146; Challis, Real Prop. 313.

to the rights of the cestui que trust, except to a purchaser for value without notice of the trust. The interest of the cestui que trust is also transferable, as if it were a legal estate.

A charitable trust is a trust created for the moral, mental, physical, or pecuniary benefit of the public, or a particular` class of the public. In most jurisdictions, the particular purpose of the charity need not be named in the declaration of trust, if there is a trustee named with power to apply the property to charitable purposes.

By the cy pres doctrine, which prevails in a number of states. if the expressed purpose of a charitable gift thereafter becomes impracticable, owing to a change in the law or otherwise, a court of equity may apply the trust fund to a kindred purpose.

91. The nature of a trust.

65

The Statute of Uses, as previously stated, was decided not to apply to uses and confidences involving active duties on the part of the grantee, uses declared on a term of years, and uses upon a use. These uses and confidences not executed by the statute were recognized by the court of chancery, either immediately after the passage of the statute, or at a later period, as being still within its jurisdiction, and they have since been administered in equity upon the same equitable principles as were applied to uses before the statute, but with a more extensive application. Trusts are, generally speaking, the same as uses before the statute, but

65 See ante, § 90.

The case of a use to the legal grantee, though not within the operation of the statute, is not a trust, since one cannot be a trustee for himself, but merely, as before stated, confers the beneficial interest on him.

66 A use upon a use, though excluded by the courts of law from the operation of the statute by the decision in Tyrrel's Case, rendered but a few years after its passage, was, in the view of Prof. Ames, not recognized and enforced by chancery until the reign of Charles I.; the earliest reported instance of the support of a pon a use being Sambach v. Dalston, Toth. 189. See article, Green Bag, 81.