1 Hampton v. Spencer, 2 Vera. 288.

§ 103. Another class of cases in which the answer of a defendant in chancery is made to prove a trust, may, for the sake of completing our examination of this topic, be mentioned here. Where a bill is filed against an absolute devisee of an estate, alleging that it is held by him upon a trust not sufficiently declared under the statute, or illegal or fraudulent, there the defendant will be compelled in equity to disclose whether any such trust exists, although he plead the Statute of Frauds; and on his answering in the affirmative, his answer is evidence, not to set up the trust, but to defeat his apparent title, and to found a decree for a resulting trust to the heir.3

§ 104. Upon examination of the decisions which have been quoted to the admissibility of letters, recitals, answers, and memoranda in general made by the trustee, as manifestations of the trust, it will be seen that they have been commonly sustained upon the ground that the Statute of Frauds does not in its terms require that the trust shall be created or declared in writing, but only that such declaration or creation shall be manifested or proved by writing. The question how far such writings would be admissible (in view of their informality and in view of their not being contemporaneous with, or forming any part of, the original transaction by which the trust was created), under a different phraseology of the law may be very important. In Massachusetts and in New York, the statute has been altered: the former requiring that the trust shall be created or declared by writing, and the latter that it shall be created or declared by deed or conveyance in writing.1 The subject was presented in the New York Court of Appeals in the case of Wright v. Douglass, where the question was upon the sufficiency of a recital in a deed as a manifestation of the trust. Ruggles, Ch. J., delivering the opinion of a majority of the court, said: "Under our former statute in relation to this subject, it was only necessary that the trust should be manifested in writing; and therefore letters from the trustee disclosing the trust were sufficient. . . . Our present statute requires that the trust should be created or declared by deed or conveyance in writing, subscribed by the party creating or declaring the trust. But it need not be done in the form of a grant. A declaration of trust is not a grant. It may be contained in the reciting part of a conveyance. Such a recital in an indenture is a solemn declaration of the existence of the facts recited, and if the trustee and cestui que trust are parties to the conveyance, the trust is as well and effectually declared in that form as in any other." 2 It would seem from this that if the New York statute as altered had not required that the trust should be declared or created by deed or conveyance in writing, any recital in a deed, whether the trustees and cestui que trust were parties or not, or any "solemn declaration of the existence of the facts," upon which a trust arises, would be sufficient. Striking out the words "deed or conveyance," the statute is left substantially the same as the English.1 We may conclude, therefore, that the phraseology of the English statute has not so extensive an effect as has been supposed. A recital of a trust is, by the very etymology of the word, subsequent to the creation of the trust; and a formal declaration of the facts upon which the trust arises also seems to presuppose an already existing trust obligation. In a case in South Carolina, the Court of Appeals take that view. The defendant there was a widow and executrix under a will by which her husband had devised the whole of his property to her, but upon an understanding that it should be disposed of according to a prior will in which certain provision had been made for his grandchildren. The defendant afterwards signed a writing by which she declared that there was due to her grandson (the plaintiff's intestate) a certain sum of money, on account of the legacies left him by his grandfather, and promised that the same with interest should be paid out of her estate. The court said that all declarations of trust must be in writing, though it was not necessary they should be constituted in writing; and that the instrument in question, though not in terms a declaration of trust, was a declaration of such facts as raised a trust, and was consequently sufficient.2 And in Massachusetts, the court, in Homer v. Homer (cited ante, § 94), seems to have considered that the entry on the trustee's book would have been a good declaration of the trust, if it had been sufficiently full.3 With such light upon

1 Hutchinson v. Tindall, 2 Green Ch. 363.

2 Jones v. Slubey, 5 Harr. & J. 372; Maccubbin v. Cromwell, 7 Gill & J. 157.

3 Adlington v. Cann, 3 Atk. 141; Stickland v. Aldridge, 9 Ves. 516; Muckleston v. Brown, 6 Ves. 52, and Bishop v. Talbot there cited. See Rutledge v. Smith, 1 McCord (S. C.) Ch. 119.

1 N. Y. Rev. Stat. 134; Mass. Pub. Stat. 1882, c. 141, § 1.

2 Wright v. Douglass, 7 N. Y. 569.

1 By the statutes of 1860, the law in New York was again changed. See Cook v. Barr, 44 N. Y. 156.

2 Rutledge v. Smith, 1 McCord Ch. 119.

3 Homer v. Homer, 107 Mass. 86. In the case of Jenkins v. Eldredge, 3 Story, 294, decided after the revision of the statutes of Massachusetts, Mr. Justice Story said: "My opinion has proceeded upon the ground that there is no substantial difference between the Statute of Frauds of Massachusetts, either under the Act of 1783, c. 37, § 3, or the Revised Statutes of 1835, c. 59, § 30, and the statute of 29 Car. II. c. 3, on the subject of trusts; and such is the conclusion to which I have arrived, upon the examination of these statutes." (See Jenkins v. Eldredge, abstracted in the note to § 111, post.) this question as is afforded by these decisions, it seems we must doubt whether, in those States where the law requires a trust to be created or declared by writing, it is not sufficient, as it is in England under the old statute, that that declaration be a clear statement of the facts upon which the trust arises, and whether it is material in what form or at what time it be made.