The provisions of the Statute of Frauds relating to wills have now been repealed, but the principles established by the foregoing cases with reference to the Statute of Frauds will apply, mutatis mutandis, to the enactments of the Statute of Wills at present in force. 90 * CHAPTER VI. OF TRANSMUTATION OF POSSESSION. [*67] WHERE there is valuable consideration, and a trust is intended to be created, formalities are of minor importance, since if the transaction cannot take effect by way of trust executed, it may be enforced by a Court of Equity as a contract. But where there is no valuable consideration, and a trust is intended, it has been not unfrequently supposed that, in order to give the Court jurisdiction, there must be Transmutation of possession—i.e., the legal interest must be divested from the settlor, and transferred to some third person. But upon a careful examination of the authorities the principle will be found to be, that whether there was transmutation of possession or not, the trust will be supported— provided it was in the first instance perfectly created (a). The cases upon this subject may be marshalled under the following heads: 1. Where some further act is intended. -It is evident that a trust is not perfectly created where there is a mere intention of creating a trust, or a voluntary agreement to do so, and the (a) See Ellison v. Ellison, 6 Ves. 662; Pulvertoft v. Pulvertoft, 18 Ves. 99; Sloane v. Cadogan, Sug. Vend. & P. Append.; Edwards v. Jones, 1 M. & Cr. 226; Wheatley v. Purr, 1 Keen, 551; Garrard v. Lauderdale, 2 R. & M. 453; Collinson v. Patrick, 2 Keen, 123; Dillon v. Coppin, 4 M. & Cr. 647; Meek v. Kettlewell, 1 Hare, 469; 1 Valuable consideration. Pownal v. Taylor, 10 Leigh, 183; Baldwin v. Humphrey, 44 N. Y. 609; Haskill v. Freeman, 1 Wms. Eq. 34; Wadsworth v. Wendell, 5 Johns. Ch. 224; Even where a husband conveyed directly to his wife, it was held a trust; Garner v. Garner, 1 Busb. Eq. 1; Livingston v. Livingston, 2 Johns. Ch. 537; Fellows v. Heermans, 4 Lans. 230; Huntly v. Huntly, 8 Ired. Eq. 250; if the cestui que trust cannot be identified, the trust cannot be executed; Ownes v. Ownes, 8 C. E. Green, 60; Dillaye v. Greenough, 45 N. Y. 438; if no trustee is named in the deed, the instrument will be reformed; Burnside v. Wayman, 49 Mo. 356. settlor himself contemplates some further act for the purpose of giving it completion (b). 2. Where the settlor declares himself a trustee. If the settlor proposes to convert himself into a trustee, then the trust is perfectly created, and will be enforced so soon as the settlor has executed an express declaration of [*68] trust, intended to be final and binding upon him, and in this case it is immaterial whether the nature of the property be legal or equitable, whether it be capable or incapable of transfer (a).1 (b) Cotteen v. Missing, 1 Mad. 176; Bayley v. Boulcott, 4 Russ. 345; Dipple v. Corles, 11 Hare, 183; Jones v. Lock, 1 L. R. Ch. App. 25; Lister v. Hodgson, 4 L. R. Eq. 30; Heartley v. Nicholson, 19 L. R. Eq. 233. (a) Gee v. Liddell, 35 Beav. 621; Morgan v. Malleson, 10 L. R. Eq. 475; Armstrong v. Timperon, W. N. 1871, p. 4; Ex parte Pye, or Ex parte Dubost, 18 Ves. 140; Thorpe v. Owen, 5 Beav. 224; Stapleton v. Stapleton, 14 Sim. 186; Vandenberg v. Palmer, 4 Kay & J. 204; Searle v. Law, 15 Sim. 99; Steele v. Waller, 28 Beav. 466; Paterson v. Murphy, 11 Hare, 88; Drosier v. Brereton, 15 Beav. 221; Bentley v. Mackay, 15 Beav. 12; Bridge v. Bridge, 16 Beav. 315; Gray v. Gray, 2 Sim. N. S. 273; Wilcocks v. Hannyngton, 5 Ir. Ch. Rep. 38; [Kelly v. Walsh, 1 L. R. Ir. 275; Re Shield, W. N. 1884, p. 127. Re Shield, has been reversed on appeal, W. N. 1885, p. 83.] In the case of McFadden v. Jenkyns, 1 Hare, 471; Sir J. Wigram expressed himself more cautiously than was necessary, as to the jurisdiction of the Court in enforcing a trust against the settlor himself, and suggested several accompanying circumstances as material to the establishment of such a trust. "If," he said, "the owner of property having the legal interest in himself, were to execute an instrument by which he declared himself a trustee for another, and had disclosed that instrument to the cestui que trust, and afterwards acted upon it, that might perhaps be sufficient; or a Court of equity, adverting to what Lord Eldon said in Ex parte Dubost, might not be bound to inquire further into an equitable title so established in evidence." Where there 1 VOLUNTARY AGREEMENTS. - Trust not perfectly created. is an intention merely to create a trust, and the settlor must take further action, it cannot be enforced; Evans v. Battle, 19 Ala. 398; Swan v. Frick, 34 Md. 139; Lanterman v. Abernathy, 47 Ill. 437; Minturn v. Seymour, 4 Johns. Ch. 498; Banks v. May, 3 A. K. Marsh, 435. Trust perfectly created. — If nothing further remains for the settlor to do, the trust will be executed, except as against creditors and bona fide purchasers without notice, though there has been no change of possession; Stone v. Hackett, 12 Gray, 227; Lane v. Ewing, 31 Mo. 75; Howard v. Bank, 40 Vt. 597; Padfield v. Padfield, 68 Ill. 210; Graham v. Lambert, 5 Humph. 595; the transfer of certificates of stock is sufficient to pass the title; Sherwood v. Andrews, 2 Allen, 79; Blasdel v. Locke, 52 N. H. 238; Millspaugh v. Putnam, 16 Abb. Pr. 380; without any change upon the corporation books; Eames v. Wheeler, 19 Pick. 444; Sargent v. Ins. Co. 8 Pick. 96; Quiner v. Marblehead [3. Gift of husband to his wife. - Prior to the Married Women's Property Act, 1882] a husband was incapable of making a gift of chattels at law to his wife, and, therefore, if he purported to make such a gift, a Court of Equity considers it tantamount to a declaration that the husband would hold in trust for the wife for her separate use. The words Ins. Co. 10 Mass. 476; unless a stranger is to be the trustee, and the corporate laws require it; Lonsdale's Est. 29 Pa. St. 407; Kiddill v. Farnell, 3 Sm. & Gif. 428; Jones v. Obenchain, 10 Grat. 259; Gilchrist v. Stevenson, 9 Barb. 9. It is not necessary that the beneficiary have knowledge of the settlement if he afterwards accepts and ratifies it; Cumberland v. Codrington, 3 Johns. Ch. 261; Weston v. Baker, 12 Johns. 276; Shepherd v. M'Evers, 4 Johns. Ch. 136; 8 Am. Dec. 561, and see cases referring to bank deposits. Savings-Bank Deposits. The decisions are somewhat in conflict, owing largely to the difficulty in applying the rules to the facts of each case; where S. deposited money in trust for M. & K., distant relatives, who were ignorant of it, S. retaining the bank-book and drawing a year's interest, it was held that a valid trust was created for M. & K.; Martin v. Funk, 75 N. Y. 134; 31 Am. Rep. 446; Farrelly v. Ladd, 10 Allen, 127; Witzel v. Chapin, 3 Bradf. 386; Millspaugh v. Putnam, 16 Abb. Pr. 380; whether a trust has been perfectly created, or whether it is an incomplete gift, is a question of fact in all these cases, and the result reached hinges largely upon the object of the settlor, the situation of the parties, and the character of the subject-matter. In Brabrook v. Bank, 104 Mass. 228, a father handed his infant child a check, with a strong indication of his intention to give the check to the child, afterwards locking it up to keep it for the child. The father died the same day, and it was held there was no trust, though it appears that the decision turned rather upon the particular facts of the case than upon any variation of the principles involved; Clark v. Clark, 108 Mass. 522, a similar case, referred to Brabrook v. Bank, and was decided on the strength of that without giving any reasons; and though the facts in these cases may be thought to show that the trusts were not perfectly created, still it is submitted that they are not in accord with current of recent decisions. In view of death A. delivered to B. a package containing money, a bank-book, and a memorandum stating where he wished to be buried, and how the balance of his property was to be distributed; held a valid trust; Pierce v. Savings Bank, 129 Mass. 425; 37 Am. Rep. 371; also where one took the book at direction of an aunt, who said, "Keep this, and if anything happens to me, bury me decently, put a headstone over me, pay my debts, and anything that is left is yours"; Curtis v. Bank, 77 Me. 151; 52 Am. Rep. 750; 2 Schouler, Pers. Prop. § 195; Clough v. Clough, 117 Mass. 85; D. deposited in bank in own name all that the law permitted, and also in names of son and grandchildren as trustee, he keeping the books and taking the dividends; evidence was admitted that D. had told them he intended the deposits for them after his death, but he wanted the interest while he lived; Gerrish v. Inst. for Savings, 128 Mass. 159; 35 Am. Rep. 365; Bartlett v. Remington, 59 N. H. 364; Pierson v. Drexel, 11 Abb. (N. Y.) N. Cas. 150; Weaver v. Emigrant Bank, 17 Abb. (N. Y.) N. Cas. 82; Willis v. Smyth, 91 N. Y. 297; it must appear that the fiduciary relations are fully established; Urann v. Coates, 109 Mass. 581; a testator transferred certain bank shares to himself as trustee for his daughter, she being ignorant of gift need not be in writing, or of a technical description, but must be clear, irrevocable, and complete; the unsupported testimony of the wife on her own behalf will not be sufficient, but the gift may be proved not only by witnesses at the time, but also by the husband's subsequent declaration. "If," observed Sir J. Romilly, M. R., “A. (who has £1000 of the transaction and he taking the dividend; Cummings v. Bramhall, 120 Mass. 552; Powers v. Inst. for Savings, 124 Mass. 377; also a valid trust where A. delivered a bank-book with an assignment of the deposits to E. on oral agreement that E. should pay such sums as she wanted during her life, and at death balance to son; Davis v. Ney, 125 Mass. 590; 28 Am. Rep. 272; Foss v. Savings Bank, 111 Mass. 285; Kingman v. Perkins, 105 Mass. 111; Kimball v. Leland, 110 Mass. 325; Newton v. Fay, 10 Allen, 505; parol is admissible to show assignment was made on certain trusts or agreements which equity will enforce; Campbell v. Dearborn, 109 Mass. 130; Hunnewell v. Lane, 11 Met. 163; a deposit was made in name of nephew N., with a memorandum that it could be paid to R., the depositor keeping the book and taking the dividends; Northrop v. Hale, 72 Me. 275; bank in account with A., trustee for B.; Ray v. Simmons, 11 R. I. 266; 23 Am. Rep. 447; Minor v. Rogers, 40 Conn. 512; 16 Am. Rep. 69; donor, holding book, deposited for niece; Blasdel v. Locke, 52 N. H. 238; Howard v. Bank, 40 Vt. 597; "in trust for C. F. M." raised a sufficiently clear presumption of a gift; Millspaugh v. Putnam, 16 Abb. Pr. 380; Geary v. Page, 9 Bosw. 290; Nutt v. Morse, 142 Mass. 1; Sherman v. Bank, 138 Mass. 581; but where money was placed to credit of children, it is necessary that donor should part with the control of it; Geary v. Page, 9 Bosw. 290; a deposit for "E. K., M. K. guardian," depositor keeping book, but informing M. K. of it; Kerrigan v. Rautigan, 43 Conn. 17; Mabie r. Bailey, 95 N. Y. 206; there should be some evidence of delivery; Minchin v. Merrill, 2 Edw. Ch. 333; Chase v. Breed, 5 Gray, 440; sufficient delivery to pass title is inferred from slight evidence; Moore v. Hazelton, 9 Allen, 102; intention has much to do with delivery; Grangiac v. Arden, 10 Johns. 293; Goodrich v. Walker, 1 Johns. Cas. 251; a check is not a sufficient assignment; Carr v. Nat'l Security Bank, 107 Mass. 45; Exchange Bank v. Rice, 107 Mass. 37; Harris v. Clark, 3 N. Y. 93; a delivery of check payable six months after death of maker does not establish a trust; App. Waynesburg Coll. 111 Pa. St. 130; 56 Am. Rep. 252; Saylor v. Bushong, 100 Pa. St. 23; Bank v. Millard, 10 Wall. 152; a mere declaration of intention to make a future gift or trust is insufficient; Gray v. Barton, 55 N. Y. 68; Little v. Willets, 55 Barb. 125; Brink v. Gould, 43 How. Pr. 289; intestate placed two bonds in separate envelopes, and signed a memorandum that they were for sons W. and J., but he retained the income, neither son exercising any control over them; no trust created; Young v. Young, 80 N. Y. 422; 36 Am. Rep. 634; payment by bank to administrator of depositor whose account was "in trust for C. B." on production of letter of administration and pass-book, and in absence of any notice to the bank, is valid; Boone v. Citizens' Sav. Bank, 84 N. Y. 83; 38 Am. Rep. 498; no trust where A. deposited money in name of B. without any declaration of trust and not in view of death, A. retaining the book; Robinson v. Ring, 72 Me. 140; 39 Am. Rep. 308; Case v. Dennison, 9 R. I. 88; 11 Am. Rep. 222; there must be a delivery to the donee; Hill v. Stevenson, 63 Me. 367; 18 Am. Rep. 231; Tilling |