More difficult than the distinction between contract rights and property rights is the distinction between cases involving such rights and cases of revocable agency. Unquestionably a man can create a trust for the benefit of another so absolute that the settlor cannot regain the property forming the subject of the trust. On the other hand, one may give money or property to an agent with instructions to give it to a third person, and before the mandate is executed it may be revoked.10 Where is the line which divides the first from the second case? No other test can be found than that furnished by the intention of the settlor or principal as indicated by his words and conduct, when he enters into the transaction. If his expressed intention read in connection with all the circumstances of the case indicates that the delivery was to be a finality, that the money or property was to be from that moment dedicated to the third person, the law will give effect to the intention and give the latter a property right from that time. It is true that this cannot be done against his will, but if there is no duty or obligation required from him in return for the property he is to receive, no expression of assent is required.11 Assent may be implied or it may be said perhaps more accurately that the property right vests without assent subject to the possibility of rejection. On the other hand, if the use of the money or property was intended to be subject to the directions of the person delivering it, if the holding was for his benefit and under his orders, the relation is that of principal and agent and the third person can acquire no rights until the agency has been executed either by actual transfer to the third person or by some express or implied attornment to him by the agent. Mere notice to the third person that an agency has been created cannot make it irrevocable, nor can even acceptance or change of position by the third person, unless either the principal or the agent with authority from the principal has made an offer that the holding shall be for the benefit of the third party if he so elects. Not only are property rights thus to be distinguished from revocable agencies, but contract rights must similarly be distinguished. A man may by contract with another be bound to pay the latter's debt, or he may simply be authorized to do so.12
9In Pennsylvania, the boundaries limiting the right of a third person to sue are perhaps based on the early distinction. If assets are put in the hands of the promisor as a consideration for his promise to pay a third person, the latter may sue, though the promisor was under no duty to apply the specific assets he had received to the payment. In re Edmundson's Estate, 259 Pa. 429, 103 Atl. 277. But a similar promise based on other consideration is unenforceable. Sweeney p. Houston, 243 Pa. 642, 90 Atl. 349, L. R, A. 1915 A. 779.
10 See, e. g., Shackleford v. Riser Co., 131 Ala. 224, 31 So. 77; Halliburton v. Nance, 40 Ark. 161; Brockmeyer v. Washington Nat. Bank, 40 Kan. 744, 21 Pac. 300; Bosea v. Lent, 44 N. Y. Misc. 437, 90 N. Y. Supp. 41; Beers v. Spooner, 9 Leigh, 163.