This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Interest. Such a difficulty would not exist in the case of a declaration of trust which is not voluntary, that is, which is supported by a pecuniary consideration, since this would be upheld as a contract.72 In two 01 three cases73 the validity of such a voluntary declaration of a trust in land has been denied, while it has occasionally been recognized.74 But in view of the general acceptance of the validity of such a declaration in the case of personal chattels, its validity in the case of land is not likely to be extensively questioned.
N. E. 899; Chilvers v. Race, 196 111. 71, 63 N. E. 701; and in Moore v. Ransdall, 156 Ind. 658, 59 N. E. 936, a valuable consideration appears to be regarded as necessary. 69. See 1 Perry, Trusts, Sec. 96; Lewin, Trusts (12th Ed.) 71; Cases cited 1 Ames, Cas. Trusts (2nd Ed.) 125; Richards v. Del-bridge, L. R. 18 Eq. 11, and cases cited ante, Sec. 106 (a) note 36.
70. See article by C. B. Labatt, Esq. on "The Inconsistencies of the Law of Gifts," 29 Am. Law Rev. at p. 361, and the comment thereon in 9 Harv. Law Rev. at p 213.
71. See note in 25 Harv. Law Rev. at p. 671, citing Doctor and Student, Dialogue 2, Ch. 22, quoted Ames, Cas. Trusts (2nd Ed.) 107.
Although a consideration is unnecessary to the validity of a trust which has otherwise been validly created, the presence or absence of a consideration is of controlling importance in case there has been no complete creation of a trust, as when there is a mere agreement to create a trust in particular property in the future, or when one attempts to transfer the property to another to hold in trust for a third person, and the transfer is for some reason invalid. In such a case equity will give effect to the transaction as a contract, if a consideration was paid by the person intended to be benefited, while if there was no consideration the transaction will be a nullity in equity as at law.75 In some cases, however, a trust has been recognized in such a case even though no pecuniary consideration was paid, what is referred to as a meritorious consideration, such as family affection, being regarded as sufficient to justify equity in recognizing a trust in
72. Post note 75.
73. Pittman v. Pittman, 107 N. C. 159, 12 S. E. 61; Thompson v. Branch, Meigs (Tenn.) 390; See Yarborough v. West, 10 Ga. 471.
74. Lynch v. Rooney, 112 Cal. 279, 44 Pac. 565; Crompton v. Vasser, 19 Ala. 259; Carson v. Phelps, 40 Md. 73; Leeper v. Taylor, 111 Mo. 312, 19 S. W. 955; Schumacher v. Dolan, 154 Iowa,
207, 134 N. W. 624; Reilly v. Whipple, 2 S. Car. 277; Steele v. Waller, 28 Beav. 466 (semble); See 25 Harv. Law Rev. at p. 671, whence the above citations have been obtained.
75. 1 Perry, Trusts, Sec. 95 et seq., Lewin, Trusts (12th Ed.) 71 et seq., 2 Pomeroy, Eq. Jur. Sec.Sec. 996-999;Ellison v. Ellison, 6 Ves. 662.
- (e) Delivery and acceptance. In case the owner of property undertakes to convey it to another to hold as trustee for a third person, the conveyance must, like any other conveyance,77 be delivered, that is, the grantor must indicate, by word or act, his intention that the conveyance shall be legally operative.78 This, as elsewhere explained,79 does not mean that the grantor must relinquish possession of the written instrument of conveyance.80
In case the owner of property, without disposing of the legal title thereto, undertakes to declare a trust in writing in favor of another, making himself trustee, the written declaration of trust, likewise, should be delivered, that is, the declarant should, besides signing the instrument, indicate by word or act his intention that the instrument shall be legally operative. Whether a delivery, that is, an indication of such an intention, has occurred, is properly a question of fact in each case; and, accordingly, while the mere fact that a signed declaration of trust is found among the declarant's papers upon his death, may well be regarded as insufficient to show delivery, so as to make it legally operative;81 that fact, taken in connection with other facts, such as a reference thereto in conversation with others,
76. See Buford's Heirs v. Mc-Kee, 1 Dana, 108; Cotton v. Graham, 84 Ky. 672, 2 S. W. 647; Conover's Adm's. v. Brown's Ex'rs, 49 N. J. Eq. 156, 23 Atl. 507; Lan-don v. Hutton, 50 N. J. Eq. 500, 25 Atl. 953; and also cases cited ante, Sec. 106 (b) note 43, see note in 34 Am. St. Rep. at p. 191.
77. Post Sec. 461.
78. Kelly v. Parker, 181 111. 49, 54 N. E. 615; Loring v. Hildreth, 170 Mass. 328, 49 N. E. 652, 64 Am. St. Rep. 301; Stone v. King, 7 R. I. 358, 84 Am. Dec. 557.
79. Post Sec. 461.
80. Fletcher v. Fletcher, 4 Hare, 67; Adams v. Adams, 21 Wall. (U. S.) 185, 22 L. Ed. 504; Sonnerbye v. Arden, 1 Johns. Ch. 240; Tarbox v. Grant, 56 N. J. Eq. 199, 39 Atl. 378.
81. Welch v. Henshaw, 170 Mass. 409, 49 N. E. 659, Am. St. Rep. 309; Collins v. Stewart, 58 N. J. Eq. 392, 44 Atl. 467, 60 N.J. Eq. 488, 46 Atl. 1098; Roosevelt v. Carow, 6 Barb. (N. Y.) 190; Govin v. De Miranda, 76 Hun (N. Y.) 414, 27 N. Y. Supp. 249.
Sec. 106] Equitable Ownership, 387 or entries in books of accounts, may be regarded as sufficient to support a finding of delivery, a finding, that is, of an intention to give legal operation to the instrument.82
While an intention that the document shall be legally operative is necessary when the only possible purpose of the instrument is to create a trust, such an intention is not necessary to render the instrument admissible against the signer to prove a preexisting trust, if its language is such as to make it appropriate for that purpose.83 The admissibility of a document containing an admission by the signer thereof cannot be affected by the fact that he did not intend it to have a legal operation, although the admissibility of a document not containing an admission, but phrased merely as creative of an interest, must be dependent on whether it was intended to have a legal operation. Whether the language of a particular document is to be regarded as intended to create a trust not before existent, so as to require proof of delivery to make it admissible as evidence against the signer, or as not so intended, so as not to require delivery to make it admissible, is to be ascertained by the language used, construed with reference to the surrounding circumstances.