The person creating a use or trust is called the "feoffor." Any one owning land who has capacity to make a contract or a will can create a trust.59 For instance, a state 60 or a corporation, if the latter is permitted by its charter, may be a feoffor.61 The capacity of married women, infants, aliens, etc., to create trusts, Is the same as their capacity to deal with real property.62
Any one may be a trustee who is capable of taking the legal title to realty.63 The United States and the states may, of course, be trustees, although they cannot be sued, without their consent, for the enforcement of the trust.64 Corporations may hold lands as trustees, and many trust companies now do so.65 A married woman may be a trustee, and cannot plead her incapacity to deal with the title to
56 Stim. Am. St Law, § 1710; Whiting v. Gould, 2 Wis. 552; Bibb ▼. Hunter, 79 Ala. 351; Dunn v. Zwilling (Iowa) 62 N. W. 746. But see Pinnock v. Clough, 16 Vt 508; Jenkins v. Eldridge, 3 Story, 181, Fed. Cas. No. 7,266; Meclellan v. Mcclellan, 65 Me. 500.
57 l Perry, Trusts (4th Ed.) §§ 90-94; Thayer v. Wellington, 9 Allen (Mass.) 283.
58 Thayer v. Wellington, 9 Allen (Mass.) 283.
59 1 Perry, Trusts (4th Ed.) § 28.
60 Commissioners of Sinking Fund v. Walker, 6 How. (Miss.) 143; Buchanan v. Hamilton, 5 Ves. 722.
61 Dana v. Bank, 5 Watts & S. (Pa.) 223; Barry v. Exchange Co., 1 Sandf. Ch. (N. Y.) 280; Hopkins v. Turnpike Co., 4 Humph. (Team.) 403; State v. President etc., of Bank of Maryland, 6 Gill& J. (Md.) 205.
62 See post, p. 381.
63 Commissioners of Sinking Fund v. Walker, 6 How. (Miss.) 143; 1 Perry, Trusts (4th Ed.) § 39.
64 1 Perry, Trusts (4th Ed.) § 41; Mcdonogh's Ex'rs v. Murdock, 15 How. 367; Shoemaker v. Commissioners, 36 Ind. 175.
65 Trustees of Phillips Academy v. King, 12 Mass. 546. So municipal corporations may be trustees. Vldal v. Girard's Ex'rs, 2 How. 127, 187. It was formerly held that a corporation could not be a trustee, because the subpoena of the chancellor operates only upon the conscience of the trustee, and corporations were said to have no souls. 1 Perry, Trusts (4th Ed.) § 42.
Land when a trust is sought to be enforced against her.66 The appointment of a married woman as trustee, however, is often attended with many inconveniences, owing to her limited power of dealing with property. For similar reasons, an infant cannot act effectively as a trustee, though, of course, a trust may be enforced against him, and his infancy will not furnish a means of defrauding his beneficiary.67 An alien may act as a trustee in jurisdiction where he is permitted to hold realty, and where he is not he may act until "office found," upon which the legal title would escheat to the state, but would still be held for the benefit of the cestui que trust.68 A bankrupt or insolvent person may be a trustee,69 and, if he became such before his insolvency, an assignment by him of his property for the benefit of creditors would not carry with it any right to the enjoyment of the property, unless the assignor had also some beneficial interest in it.70 A feoffor may make himself a trustee.71
Any one who has capacity to take the legal title to lands may be a beneficiary.72