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.
§ 105. The language of the statute in the seventh section is, "Some writing signed," etc., and it is decided that the writing is not required to be sealed.1 In regard to the memorandum in these cases of trusts, like that required by the fourth section in cases of certain contracts, it is sufficient if, of several papers which together go to make up the required manifestation of the trust, one of them be signed, provided the others be so connected with it, in sense and meaning, as to render unnecessary a resort to parol evidence to show their relation to each other.2
§ 106. The requisition in the statute, that the writing shall be "signed by the party who is by law enabled to declare such trusts, or by his last will in writing," will be met by the signature of the grantor himself, if the declaration be previous to, or contemporaneous with, the act of disposition. Having once divested himself of all interest in property, by an absolute conveyance, it is no longer competent for him, either by parol or written declaration, to convert a party taking under such a conveyance into a trustee, except of course where the circumstances of the transaction were such as to raise a resulting or implied trust upon the conveyance, in which case the person entitled to such an interest would clearly have a right at any time to declare the trust.3 But when a trustee holds an estate for another, on a trust either express or implied, although he succeeds to the grantor's legal title, a writing to declare a further trust of the estate so held is to be signed not only by the trustee, but by the beneficial owner.1
1 Adlington v. Cann, 3 Atk. 141; Boson v. Statham, 1 Eden, 508.
2 Forster v. Hale, 3 Ves. Jr. 696. See this point examined under the head of the written memorandum required by the fourth section.
3 Hill on Trustees, 62, and cases there cited. And see Sturtevant v. Sturtevant, 20 N. Y. 39; Phillips v. South Park Commissioners, 119 111. 626.
§ 107. Where there has been an absolute devise of lands, a mere declaration in writing by the devisor asserting a trust, not communicated to the devisee, and not executed and attested as required by the statute in cases of wills, will be insufficient to engraft a trust upon the will.2 A paper testamentary in form, but inefficient as a will for want of regular execution and attestation as such, may, however, serve as a written manifestation of the trust, where it is not so controlled by an absolute devise. And in any case, even if the trust rest entirely in oral agreement between the devisor and devisee, the trust will be enforced notwithstanding the absolute devise, if it appear that the devise was made upon the faith of the devisee's agreement that the devise being made to him absolutely, he would carry out the trust.3 But generally speaking, a parol declaration of trust in land is revocable at any time, and is revoked by a devise of the declarant to another person.4
§ 108. All that remains before concluding this chapter is to see what form of language will be sufficient to manifest a trust as required by the statute. It has been before remarked that the words used, though no formulary of expression be prescribed, must distinctly relate to the subject-matter, and must serve to show the court that there is a trust, and what that trust is. An illustration of this principle is presented in the case of Forster v. Hale, where it was attempted to establish a trust upon the expressions "our" and "your," contained in letters of the defendant to the alleged cestui que trust, referring to the property in dispute. It was held that such terms did not necessarily imply that the parties to the correspondence were jointly interested in the estate alluded to; and the Master of the Rolls, Sir Richard Pepper Arden, said there was great danger in executing trusts proved only by letters loosely speaking of trusts which might or might not be actually and definitively settled between the parties, with such expressions as those above quoted, intimating only some intention of a trust; and that it should be clear from the declaration what the trust was.1 So in the case of Steere v. Steere, before Chancellor Kent, two of the defendants, sons of Stephen Steere, under whose will the plaintiffs claimed, had purchased at judgment sale certain land belonging to their father, and it was alleged that they held it under a trust to reconvey to the testator on repayment of the purchase-money and expenses. The evidence relied upon consisted of a number of letters written by one or more of the defendants, in which frequent allusion was made to the estate, and to a promise by the defendants that the family should have a part of it, that it should be held for the family, with similar general expressions. The Chancellor was clear that such language did not tend to show the trust alleged, which was a trust in favor of the testator; but that even if a trust in favor of the family had been alleged, the suggestions and intimations were too loose to found a decree for specific execution.2
1 Tierney v. Wood, 19 Beav. 330; Kronheim v. Johnson, 7 Ch. Div. 60.
2 Adlington v. Cann, 3 Atk. 141.
3 Stickland v. Aldridge, 9 Ves. 516; Podmore v. Gunning, 7 Simons, 644; Tierney v. Wood, 19 Beav. 330; Barrell v. Hanrick, 42 Ala. 60; post, § 442; ante, § 94.
4 Kelly v. Johnson, 34 Mo. 400.
§ 109. Any instrument, however, which distinctly shows the trust relation existing between the parties will be sufficient to satisfy the statute, in whatever form it may be. Thus an acknowledgment in writing that he is indebted to another for a legacy under a will shows the defendant to be a trustee for the purpose of carrying out the will to that extent.3 So where the defendant, the owner of the legal title to an estate, had covenanted with third parties to sell part of it and apply the proceeds to the payment of certain demands which they held against the plaintiff's father, from whom the estate had been purchased, it was held to be a sufficient declaration of trust, as furnishing conclusive evidence that, notwithstanding the defendant held the legal title, there was a beneficial interest remaining in the plaintiff's father.1 So where the holder of a note indorsed to him as security for a debt, having recovered judgment against the promisor and levied on the rents and profits of his land for a term of years, signed a writing not under seal, promising to pay to the plaintiff all the rents which he should receive after his debt should be paid, or to allow the plaintiff the use and improvement of the land after such payment, it was held that this was a sufficient declaration of trust.2 And a mere private memorandum made by the defendant in his own handwriting, though not signed, setting forth that in a previous conversation with the plaintiff's testator, he had told him that certain persons (the plaintiffs) were to have certain legacies and annuities, has been held to be a sufficient declaration of the trust for those purposes.3