This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
§ 97. We come now to consider the formalities which are required by the Statute of Frauds in cases of express trusts of lands, tenements, or hereditaments. These are, that the declaration or creation of such trusts "shall be manifested or proved by some writing signed by the party who is by law entitled to declare such trusts, or by his last will in writing." It has been suggested that, by a comparison of the ninth section of the English statute with the seventh, just referred to, it appears to have been the intention of the legislature to require by the latter that the trust should actually be created by writing; but it is admitted that, whatever the intention may have been, it is clear, upon the language employed, that a trust in lands is only required to be manifested or proved by written evidence.1 From this it results that the instrument in writing required by the statute may be in terms less formal than would be required for the creation of a trust, and that the making of it is to be regarded as an entirely independent transaction. It has been uniformly held, though perhaps not necessarily, on the ground of this peculiarity of phraseology,2 that it may be executed subsequently to the creation of the trust,3 or even, it is said, in anticipation of it;1 or it may be executed subsequently to the death of the grantor;2 or the bankruptcy of the grantee.8 The consequences are important; for if the trust had no effect previously to, or independently of, the written declaration, the trust property could not be disposed of by the cestui que trust in the meanwhile, and would be subject to the acts and encumbrances of the ostensible owner. 4
1 Lewin on Trusts, 30; Cook v. Barr, 44 N. Y. 156; Gordon v. McCul-loh, 66 Md. 245.
2 See post, § 104.
3 Forster v. Hale, 5 Ves. 308; Barrell v. Joy, 16 Mass. 221; Wright v. Douglass, 7 N. Y. 564; Rutledge v. Smith, 1 McCord (S. C.) Ch. 119; Price v. Brown, 4 S. C. 144; Maccubbin v. Cromwell, 7 Gill & J. (Md.) 157; Newkirk v. Place, 47 N. J. Eq. 477.
§ 98. It has uniformly been held that letters under the hand of the trustee, distinctly referring to the trust, are sufficient as written manifestations or proofs to satisfy the statute;5 and in Massachusetts a printed pamphlet, published and circulated by the trustee, has also been considered sufficient.6 So with entries made by the trustee in his books, or any memorandum, however informal, under his hand, from which the fact of the trust and the nature of it can be ascertained.7
§ 99. In the case of Steere v. Steere,8 Chancellor Kent had occasion to decide upon the effect of a series of letters from the alleged trustee, and among other grounds for his opinion that they did not furnish such proof of the trust as the law required, he remarks that some of them were not addressed to the cestui que trust, and were not intended for the purpose of manifesting or giving evidence of the trust; and in these respects, he says, they differed from letters which had been admitted in English cases.1 The opinion of the learned Chancellor shows, however, abundant grounds upon which the letters before him should be held insufficient; for instance, as not containing the substance of the trust and as varying from the allegations in the bill. He does not therefore expressly decide upon the point suggested, and we may suppose that he would not have decided according to the intimation given in his opinion, if the case had depended upon it, and his attention had been particularly drawn in that direction. It may well be doubted whether in principle and reason it is necessary that the writing upon which a trustee is to be held to his conscientious duty should have been formally promulgated by him, and addressed to those interested, as evidence of his obligation; and the general spirit of the decisions upon this class of cases seems to be averse to such a doctrine. Thus a trust is often proved by the recital in a deed,2 which, however solemn a mode of statement, is not addressed to the cestui que trust, though it may be made with the intention of manifesting the trust. In Barrell v. Joy,3 in the Supreme Court of Massachusetts, the defendant had received from the plaintiff's father sundry conveyances of land, and, upon a suit brought after the father's death, the plaintiff alleged that the conveyances, though in terms absolute, were for the purpose of enabling the defendant to satisfy certain demands he had against the father, and that the remainder was to be held in trust for him, of which trust they claimed the benefit. There was a pamphlet in evidence published by the defendant, in which, in the opinion of the court, he admitted that he held the land in trust, as alleged by the complainants; but what they considered as even more satisfactory and convincing evidence was that the defendant, in an indenture between himself and certain third parties, covenanted with them to sell a portion of the lands he had received, and apply the proceeds to the payment of demands which they held against the plaintiff's father; from which it was evident that he considered himself as holding the land upon trust and not for his own use. Parker, C. J., delivering the opinion of the court, said: "This is a sufficient declaration in writing, for, although not made to Barrell (the cestui que trust), it is available to him or his representatives." It can hardly be said that this indenture was intended by the defendant as a manifestation of the trust on his part; and if his engagement to make that disposition of the land had been contained in a letter to, instead of an indenture executed with, third parties, the question would be quite identical with that before the Chancellor in Steere v. Steere; but it does not seem that the mere form of the manifestation should make any difference in principle. In a more recent case than either, Chancellor Vroom, of New Jersey, used the following language: "A declaration of trust requires no formality, so that it be in writing and have sufficient certainty to be ascertained and executed. It may be in a letter, or upon a memorandum, and it is not material whether the writing be made as evidence of the trust or not." 1 In Forster v. Hale, although the parol declarations of the party were adverse to the inference of a trust, and it was in evidence that he had refused to execute a declaration, yet, as the trust was clearly made out upon the face of a series of letters under his hand, he was charged accordingly.2 In such a case, it is clear that the trustee must have been held upon his letters in spite of his intentions. On this point, therefore, it seems to be much the better opinion that it is no objection to letters and other informal writings or memoranda of the trustee, introduced for the purpose of proving the trust, that they were drawn up for another purpose, and not addressed to, nor intended for the use of, the cestui que trust.1