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 .
Bartlett v. Bartlett, 14 Gray (Mass.) 277; Gould v. Lynde, 114 Mass. 366; Jackson v. Cleveland, 15 Mich. 94, 90 Am. Dec. 266; Palmer v. Sterling, 41 Mich. 218, 2 N. W. 24; Stuckey v. Stuckey, 30 N. J. Eq. 546; Lovett v. Taylor, 54 N. J. Eq. 311, 34 Atl. 896; Squire v. Harder, 1 Paige (N. Y.) 494, 19 Am. Dec. 446; Miller v. Wilson, 15 Ohio 108; Rogers v. Rogers, 20 R. I. 400, 39 Atl. 755.
9. Donlin v. Bradley, 119 111. 412, 10 N. E. 11; Groff v. Rohrer, 35 Md. 327; Gould v. Lynde, 114 Mass. 366; Moore v. Jordan, 65 Miss. 229, 7 Am. St. Rep. 641; Far-rington v. Barr, 36 N. H. 86; Coffey v. Sullivan, 63 N. J. Eq. 296, 49 St.
520; Gaylord v. Gaylord, 150 N. C. 222. 63 S. E. 102S; Salisbury v. Clarke, 61 Vt. 453, 17 Atl. 135.
10. Hill, Trustees (4th Am. Ed.) 178; notes to Dyer v. Dyer, 1 White & T. Lead. Cas. Eq. 350; Leman v. Whit'ey, 4 Russ. 423; Ohmer v. 3oyer, 89 Ala. 273, 7 So. 663, Feeney v. Howard, 79 Cal. 525, 4 L. R. A. 826, 12 Am. St. Rep. 162; 21 Pac. 984; Belden v. Seymour, 8 Conn. 312, 21 Am. Dec. 661; Verzier v. Convard. 75 Conn. 1, 52 Atl. 255; Myers v. Myers, 167 111. 52, 47 N. E. 309; Acker v. Priest, 92 Iowa 610, 61 N. W. 235; Philbrook v. Delano, 29 Me. 410; Groff v. Rohrer, 35 Md. 327; Blod-gett v. Hildreth, 103 Mass. 484; interest.11 Likewise, if the trust declared for any reason fails, as, for instance, when there is ambiguity in the description of the cestui que trust, or incapacity on his part to take, the beneficial interest is said to result to the donor or his heirs.12
The above statements are evidently based upon the assumption that in the particular case the trustee has an estate of a quantum greater than the beneficial interest which is declared, or which is validly declared, the theory being that in so far as the donor has thus disposed of the legal title, without creating a corresponding beneficial interest, he intends that to this extent a beneficial interest shall be vested in himself. In view, however, of the general disposition of the courts in this country to consider that a trustee has such legal interest only as is necessary to support the
Jackson v. Cleveland, 15 Mich. 94, 90 Am. Dec. 266; Moore v. Jordan, 65 Miss. 229, 7 Am. St. Rep. 641, 3 So. 735. Hogan v. Jaques, 19 N. J. Eq. 123, 97 Am. Dec. 644; Morse v. Shattuck, 4 N. H. 229, 17 Am. Dec. 419; Graves v. Graves, 29 N. H. 129; Gaylord v. Gaylord, 150 N. C. 222, 63 S. E. 1028.
11. 1 Sanders, Uses & Trusts, 358; 1 Perry, Trusts, Sec. 152; Underbill, Trusts (7th Ed.) 149; Lewin, Trusts (12th Ed.) 163; Audley's Case Dyer 166a; Lloyd v. Spillet, 2 Atk. 150; Hopkins v. Grimshaw, 1C5 U. S. 342, 41 L. Ed. 739; Washington B. E. Ass'n v. Wood, 4 Mackey, D. C. 19, 54 Am. Rep. 251; Schlessinger v. Mallard, 70 Cal. 326; 11 Pac. 728; Loring v. Eliot, 16 Gray (Mass.) 568. Robinson v. McDiarmid, 87 N. C. 455.
12. 1 Perry, Trusts, Sec.Sec. 157, 159, 160; Ackroyd v. Smithson 1 Brown Ch. 503, 1 White & T. Lead. Cas. Eq. 1171, notes; Nichols v. Allen,
130 Mass. 211, 39 Am. Rep. 445; Rizer v. Perry, 58 Md. 112; Sprague v. Trustees of Protestant Episcopal Church of Diocese of Michigan, 186 Mich. 554, 152 N. W. 996; Lusk v. Lewis, 32 Miss. 297; Roy v. Monroe. 47 N. J. Eq. 356. 20 Atl. 481; Hawley v. James, 7 Paige (N. Y. ) 213, 32 Am. Dec. 623; Phillips v. Ferguson, 85 Va. 509, 1 L. R. A. 837, 17 Am. St. Rep. 78, 8 S. E. 241.
It has been suggested that the trust recognized in favor of the donor or his heirs in such a case is properly an express, rather than a resulting, trust, since it is by reason of the construction of the instrument as not transferring the beneficial interest, or the total beneficial interest, that a trust exists in faver of the donor or his heirs. See article by Professor George P. Costigan in 27 Harv. Law Rev. at p. 455. But a trust which the court infers in favor
[Sec. 107 trust expressly declared,13 the view might, it is conceived, well be adopted, that if one transfers land to another as trustee, and the trust fails, or the trust declared will not exhaust the beneficial interest, the donor, in so far as he has not disposed of the beneficial interest, has, to the same extent, not disposed of the legal interest, with the result that, instead of there being a resulting trust in his favor, he has a legal reversion.13a For instance, if one having the legal fee simple makes a gift to A and his heirs in trust for B for life, the donor may well be regarded as having, not a mere resulting trust in fee simple, but the legal reversion upon an estate vested in A, for the purpose of the trust, for the life of B. To consider that in such case A has the fee simple is somewhat difficult, if we are to regard his estate as necessarily coming to an end upon the death of B. And so when land is conveyed by A to B, in trust to pay A's debts, A might be regarded as having at least a legal possibility of reverter upon an estate in favor of B, in fee determinable. Even if, in the particular case, an intention to give the trustee an estate in fee simple is recognized, any trust which reof the donor by reason of a failure to create a complete trust in the property in favor of others may, it is submitted, be referred to as resulting quite as appropriately as a trust which the court infers from any other fact, such as the payment of a consideration by a person other than the grantee. Whether the fact is or is not ascertained by the construction of an instrument would seem to be immaterial.
Even if the view be adopted that the cestui que trust has an estate, and not merely a right in personam, it seems that the donor, in whose favor there is such a resulting trust, is not to be regarded as having originally had both a legal and an equitable estate and as having disposed of the legal estate alone, retaining the equitable. If he were to be so regarded, one to whom land is devised as trustee, without the cestui being expressly named, could never hold subject to a constructive trust in favor of one other than the donor. That he can, see cases cited by Professor Costi-gan, 28 Harv. Law Rev. at p. 383 and that writer's discussion.