The New-York Revised Statutes, in relation to trusts, scem 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. If any such passive trust be created by any disposition of lands by deed 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 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 NewYork 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 u der 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, but the title shall vest in the alience, subject to the claims of the existing creditors of the person paying the money. The resulting trust will

a Vol. i. 727. sec. 47. 49.

b N. Y. Revised Statutes, vol. i. 728. sec. 50—54.

c This 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.

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 possession. 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 that the legal estate should pass to the trustees.

Express trusts are allowed, (1.) To sell lands for the benefit of creditors; (2.) To sell, mortgage, or lease lands, for the benefit of legatees, or for the purpose of satisfying any charge thereon; (3.) To receive the rents and profits of lands, and apply them to the education or support of any person; or to accumulate the same for the purposes, and within the limits, already mentioned. In all these cases, the whole estate, in law and cquity, 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, remain in, or revert to the person who created the trust, and he may dispose of the lands

Livingston, 3 Johns. Ch. Rep. 431. The statute is silent as to subser quent 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

a

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 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; and when the trust is expressed in the instrument creating the estate, every act of the trustee in contravention of the trust, is void. The statute further provides for the case of the death of all the trustees, by declaring that the trust shall not descend to the real or personal representatives of the Surviving trustee, but shall be vested in the court of chancery, to be executed under its direction. The court may also accept the resignation of a trustee, and discharge him, or remove him for just cause, and supply the vacancy, or any want of trustees, in its discretion.

These powers conferred upon the court of chancery, are essentially declaratory of the jurisdiction which equity already possessed and exercised, and it was also well settled, that a trustee who had accepted a trust could not afterwards devest himself of it without performance, unless with the assent of the cestui que trust, or under the direction of chancery. But the provision that trusts shall not

a N. Y. Revised Statutes, vol. i. 728, 729. sec. 55. 58. 60, 61, 62. b This is only declaratory of what was the law before. Preston on Abstracts, vol. ii. 230. Sanders 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. 172.

c N. Y. Revised Statutes, vol. i. 730. sec. 64, 65.

d lbid. 730. sec. 68, 69, 70, 71.

e Shepherd v. M'Evers, 4 Johns. Ch. Rep. 136. Sir Wm. Grant, in 1 Jac. & Walk. 68.

descend to the representatives of the trustee, is very valuable, for the trust, in such a case, might be deposited very insecurely for the cestui que trust, and in the case of chatels there is doubt and difficulty as to the transmission.* The object of the New-York Revised Statutes was to abolish all trusts except the express trusts which are enumerated, and resulting trusts. The provisions as to uses and trusts were earnestly recommended by the revisers, under the conviction that they would "sweep away an immense mass of useless refinements and distinctions, relieve the law of real property, to a great extent, from its abstruseness and uncertainty, and render it, as a system, intelligible and consistent; that the security of creditors and purchasers will be increased, the investigation of titles much facilitated, the means of alienation be rendered far more simple, and less expensive, and, finally, that numerous sources of vexatious litigation will be perpetually closed."

I am very doubtful whether the abolition of uses, and the reduction of all authorized trusts to those specially mentioned, will ever be productive of such marvellous rests. The apprehension is, that the boundaries prescribed will prove too restricted for the future exigencies of society, and bar the jurisdiction of equity over many cases of trusts which ought to be protected and enforced, but which do not come within the enumerated list, nor belong strictly to the class of resulting trusts. The attempt to bring all trusts within the narrowest compass, strikes me as one of the most questionable undertakings in the whole business.

a Trust property does not pass to the assignees of the trustee, except subject to the trust; (Godfrey v. Furzo, 3 P. Wms. 185. Ex parte Dumas, 1 Atk. Rep. 231. Ex parte Sayers, 5 Vesey's Rep. 169. Dexter v. Stewart, 7 Johns. Ch. Rep. 52.) and equity will lay hold of trust property passing to the representatives of the trustee, and direct it for the benefit of the cestui que trust. Dunscomb v. Dunscomb. 2 Harr. & Munf. 11. Ridgely v. Carey, 4 Harr. & M Henry, 167.

of the revision. It must be extremely difficult to define with precision, and with a few brief lines and limits, the broad field of trusts of which equity ought to have cogniance. The English system of trusts is a rational and just code, adapted to the improvements, and wealth, and wants of the nation, and it has been gradually reared and perfected by the sage reflections of a succession of eminent men. Nor can the law be effectually relieved from its "abstruseness and uncertainty," so long as it leaves undefined and untouched, that mysterious class of trusts "arising or resulting by implication of law." Those trusts depend entirely on judicial construction, and the law on this branch of trusts is left as uncertain, and as debateable as ever. Implied trusts are liable to be extended, and pressed indefinitely, in cases where there may be no other way to recognise and enforce the obligations which justice imperiously demands. The statute further provides, that if an express trust shall be created for a purpose not enumerated, and it shall authorize the performance of any act lawful under a power, the trust shall be valid "as a power in trust." This provision reanimates a class of trusts under a new name with which the profession is not familiar, and it opens a wide door for future forensic discussion. It is in vain to think that an end can be put to the interminable nature of trusts arising in a great community, busy in the pursuit, anxious for the security, and blessed with the enjoyment of property in all its ideal and tangible modifications. The usages of a civilized people are the gradual result of their wants and wishes. They form the best portion of their laws; opinion and habits coincide; they are accommodated to circumstances, and mould themselves to the complicated demands of wealth and refinement. We cannot hope to check the enterprising spirit of gain, the pride of families, the anxieties of parents, the importun ties of luxury, the fixedness of habits, the subtleties of in tellect. They are incessantly active in engendering dis