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12 TRUSTS IN GENEEAL. CHAPTER II.—CLASSIFICATION OF TRUSTS. EVERY trust is either— (1) Express, or (2) Implied. An express trust is one which is created by words indicating an intention to create a trust. An implied trust is one which is not created by words indicating an intention to create a trust, but by implication of law. " All trusts," said Lord Nottingham in the case of Cook v. Fountain (1676, 3 Swanst. at p. 591), "are either first express trusts which are raised and created by act of the parties, or implied trusts which are raised or created by act or construction of law." This classification certainly marks a fundamental distinction between the kinds of trusts. It corresponds with the distinction drawn by the Statute of Frauds, enacted only a few years later, between " declarations " of trusts of land and conveyances of land " by which a trust or confidence shall or may arise or result by the implication or construction of law," and it has been substantially adopted by most writers on the subject since, though there is a good deal of variation in the language used to denote the distinction. Mr. Justice Story, for example, classifies trusts as express trusts and implied trusts, the latter comprehending all those trusts which are called constructive and resulting trusts. (Equity Juris. 2nd (Eng.) ed. § 980.) And the same classification is given in the notes to the case of Keech v. Sandford in White and Tudor's Leading Cases in Equity (7th ed. vol. ii. 694). Mr. Lewin (Trusts, 10th ed. 16, 18), it is true, begins by dividing them into simple and special—the former being those in which property is vested in one person in trust for another, but the nature of the trust not being prescribed by the settlor is left to the
CLASSIFICATION OF TRUSTS. 13 construction of law; the latter those in which the machinery of a trustee is introduced for the execution of some purpose particularly pointed out, and the trustee is not, as before, a mere passive depositary of the estate, but is called upon to exert himself actively in the execution of the settlor's intention. But this distinction he treats as of no importance for the purpose of the exposition of his subject, and later on he divides them into (1) those created by act of the party, and (2) those created by operation of law, subdividing the latter into resulting and constructive, which classification is adopted by Mr. H. A. Smith in his treatise on Equity (2nded. 33). In substance Mr. Underbill's treatment of the subject (Trusts and Trustees, 6th ed. 8) is the same, though the terms he uses are different. He says, " In relation to their inception, trusts are divisible into two classes: (1) an express trust means a trust created by words importing an intention to create a trust .... (2) a constructive trust means a trust which is not created by any words importing an intention to create a trust, but is implied by courts of equity in order to prevent the inequitable acquisition of another's property." And Mr. Watson's language in his Compendium of Equity (2nd ed. 962) is somewhat similar. Lastly, the Trustee Act, 1888, s. 1 (3), distinguishes between express trusts and trusts arising by construction or implication of law. On the other hand, trusts are sometimes divided into three kinds: express, implied (i.e., resulting), and constructive, a classification adopted by Judge Josiah W. Smith, in his Manual of Equity (14th ed. 147, 148), and by Mr. Snell (Equity, 12th ed. 53). The former writer admits, however, that the two last are frequently confounded, or at least classed together, and they are obviously both species of trusts arising by operation or implication of law. Mr. Ashburner (Equity, 124) distinguishes between cases in which there is an intention to create a trust and a trust is created in fulfilment of that intention, and cases in which, though there is no intention to create a trust, a court of equity holds that a trust has arisen. But he, following Lord Nottingham apparently, would put some kinds of resulting trusts, like those illustrated by the case of Dyer v. Dyer (1788, 2 Cox, 92), under the first head. On the whole, the weight of opinion and reason seems to be in favour of distinguishing trusts created by act of the party from those arising by operation of law, and it seems best to mark the
Page 2: UNIVERSITY OF LONDON INSTITUTE OF A
Page 7 and 8: A THESIS UPON THE DEFINITION, CLASS
Page 9 and 10: TABLE OF CONTENTS. PAOK INTRODUCTOR
Page 11 and 12: INTRODUCTORY. THE term "trust" has
Page 13 and 14: Part L—TBUSTS IN GENEBAL. CHAPTEE
Page 15 and 16: DEFINITION OF A TRUST. 3 active or
Page 17 and 18: DEFINITION OF A TEUST. 5 owner. Thi
Page 19 and 20: DEFINITION OF A TEUST. 7 Mr. Justic
Page 21 and 22: DEFINITION OF A TRUST. 9 courts the
Page 23: DEFINITION OF A TRUST. 11 since the
Page 27 and 28: CAPACITY OF PARTIES. 15 CHAPTEE III
Page 29 and 30: CAPACITY OF PARTIES. 17 The sanctio
Page 31 and 32: CAPACITY OF PARTIES. 19 party to it
Page 33 and 34: CAPACITY OF PARTIES. 21 Lunacy also
Page 35 and 36: THE TRUST PROPERTY. 23 CHAPTER IV.
Page 37 and 38: THE TRUST PROPERTY. 25 expectancy o
Page 39 and 40: CREATION OF EXPRESS TRUSTS OF LAND.
Page 41 and 42: CREATION OF OTHER EXPRESS TRUSTS. 2
Page 49 and 50: RULES DETERMINING INTENTION TO CREA
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Page 67 and 68: ENFOECEABILITY OF EXPRESS TRUSTS. 5
Page 73 and 74: DISCLAIMER OF EXPRESS TRUST, 61 CHA
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DISCLAIMER OF EXPRESS TRUST. 63 hav
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CONSTRUCTION OF EXPRESS TRUSTS. 65
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CONSTRUCTION OF EXPEESS TRUSTS. 71
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INVALIDATING CAUSES. 75 CHAPTER XI.
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INVALIDATING CAUSES. 77 Guardian an
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INVALIDATING CAUSES. 79 upon good (
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INVALIDATING CAUSES. 81 ment is not
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INVALIDATING CAUSES. 83 UNLAWFUL PU
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INVALIDATING CAUSES. 85 7. Testator
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INVALIDATING CAUSES. 87 Immoral Tru
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RESULTING TRUSTS. 89 Part IIL—IMP
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RESULTING TRUSTS. 91 to give the tr
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RESULTING TRUSTS. 93 satisfied with
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RESULTING TRUSTS. 95 tion of A.'s e
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RESULTING TRUSTS. 97 or successive,
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RESULTING TRUSTS. 99 4. Copyhold la
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RESULTING TRUSTS. 101 Lastly, if A.
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RESULTING TRUSTS. 103 It does not s
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RESULTING TRUSTS. 105 CHAPTER XV.
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CONSTRUCTIVE TRUSTS. 107 B.—Const
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CONSTRUCTIVE TRUSTS. 109 quences of
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CONSTRUCTIVE TRUSTS. Ill (1857), 8
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CONSTRUCTIVE TRUSTS. 113 40 Ch. D.
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CONSTRUCTIVE TRUSTS. 115 4. A. and
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CONSTRUCTIVE TRUSTS. 117 The follow
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