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 .
A trust in land may be created by any person who has capacity to make a transfer of land.11 And any person who is capable of being the transferee of land may be made a cestui que trust, as the state, a corporation authorized to hold land, a married woman, an infant, or even a person unborn.12 An alien cannot hold an equitable estate in land unless the law authorizes aliens to hold land,13 nor can a corporation be a cestui que trust as to land of which it could not hold the legal title.14
7. Perry, Trusts, Sec.Sec. 17, 843; 1 Ames, Cas. Trusts, 240, note; Curtis v. Smith, 6 Blatchf. 537, Fed. Cas. No. 3,505; Norton v. Ray, 139 Mass. 230; 29 N. E. 662. Hearue, v. Hearne, 55 Me. 445; Cearnes v. Irving. 31 Vt. 604.
In a few early cases, an action in assumpsit against the trustee for breach of trust was allowed (1 Ames, Cas. Trusts, 235-240; 1 Perry, Trusts, Sec. 17), and it has been allowed in states where there was no chancery jurisdiction (Newhall v. Wheeler, 7 Mass. 198; Aycinena v. Peries, 6 Watts & S. [Pa.] 243).
8. Reade v. Reade, 8 Term R. R. P.- 24
118; Johnson v. Christian, 128 U. S. 374, 32 L. Ed. 412; Hooper v. Columbus & W. Ry. Co., 78 Ala. 213; Kirkpatrick v. Clark, 132 111. 342, 22 Am. St. Rep. 531; Baker v. Ball, 59 Mo. 265; Commissioners of Somerville v. Johnson, 36 N. J. Eq. 211; Moore v. Spellman. 5 Denio (N. Y.) 225; Beach v. Beach, 14 Vt. 28, 39 Am. Dec. 204; 1 Ames, Cas. Trusts, 242. Contra, Edes v. Herrick, 61 N. H. 60; Sawyer v. Town of Skowhegan, 57 Me. 500.
9. See 1 Ames, Cas. Trusts, 242, 243.
10. Underhill, Trusts (7th Ed.) 4.
Any person who is capable of holding the title to land may be a trustee. A sovereign state may be a trustee, though, owing to its immunity from suit, the trust obligation cannot generally be enforced against it.15 A corporation may be a trustee,16 but not for a purpose foreign to the objects of its existence.17 One is not disqualified to be a trustee by infancy, though, owing to his lack of discretion and inability to convey and contract, an infant is peculiarly unfitted for the office, and will never be appointed trustee by a court.18
11. 1 Perry, Trusts, Sec.Sec. 28-37. As to what persons are capable of transferring land, see post Sec.Sec. 5.93-598.
12. 1 Perry, Trusts, Sec.Sec. 60-66; 1 Ames, Cas. Trusts, 213; see, e. g., Collins v. Hoxie, 9 Paige (N. Y.) 81; Ashhurst v. Given, 5 Watts & S. Pa.) 323. Hale v. Hale, 146, 111. 227, 20 L. R. A. 247, 33 N. E. 858.
13. 1 Ames, Cas. Trusts, 213; 1 Perry, Trusts, Sec. 64; 2 Kent, Comm. 62. In 1 Perry, Trusts, loc. cit., it is stated that an alien cestui que trust can at any time be deprived of his beneficial interest by the state. This is true, of course, only where there are restrictions upon the holding of lands by aliens.
14. 1 Perry, Trusts, Sec. 63; Downing v. Marshall, 23 N. Y.
366, 80 Am. Dec. 290; Coleman v. San Rafael Turnpike Road Co., 49 Cal. 517.
15. 1 Ames, Cas. Trusts, 215; 1 Perry. Trusts, Sec. 41; Shoemaker v. Board of Com'rs of Grant County. 36 Ind. 184.
16. 1 Ames, Cas. Trusts, 216; Attorney General v. Lauderfield, 9 Mod 286; Vidal v. Philadelphia, 2 How. (U. S.) 127; Wade v. American Colonization Soc, 7 Smedes & M. (Miss.) 663, 45 Am. Dec. 324.
17. 1 Perry, Trusts, Sec.Sec. 43-45; Greene v. Dennis, 6 Conn. 293, 16 Am. Dec. 58; Chapin v. School District No. Two, 35 N. H. 445; City of Augusta v. Richmond Academy, 77 Ga. 517, 1 S. E. 214.
18. 1 Perry, Trusts, Sec.Sec. 52-54; 1 Ames, Cas. Trusts, 217; UnderSec. 104 ]
A married woman may likewise be a trustee, though sin-also is subject to some disabilities, unless these have been removed by statute, which lend to affect her fitness for the office.19
The fact that one of the beneficiaries under a trust is named as one of the trustees,20 or even as sole trustee,21 does not affect the validity of the trust, but one of the beneficiaries, it has been said, if named as trustee, holds the legal title free from any trust, to the extent to which it was sought to give him the beneficial interest.22 Whether a trust may be created with trustees who are absolutely identical with the cestuis que trust is a matter as to which there are but a few judicial expressions, and those not in accord with one another.23
A court of equity will occasionally appoint one of the beneficiaries under the trust as cotrustee, but this it will, it seems, ordinarily do with reluctance.24-25 Obviously a court should not appoint a beneficiary as sole hill, Trusts (Am. Ed.) 408; Jevon v. Bush, 1 Vern. 342; Nordholt v. Nordholt, 87 Cal. 552, 22 Am. St. Rep. 268, 26 Pac. 599.
19. 1 Perry, Trusts, Sec.Sec. 48-51; 1 Ames, Cas. Trusts, 220. See Gridley v. Wynant, 23 How. ( U. S.) 500; 16 L. Ed. 411; Still v. Ruby, 35 Pa. St. 373.
20. Nellis v. Rickard, 133 Cal. 617, 85 Am. St. rep. 227, 68 Pac. 32; Burbach v. Burbach, 217 111. 547, 75 N. E. 519; Sherlock v. Thompson, 167 Iowa, 1, Ann. Cas. 1917a, 1216, 148 N. W. 1035; Rogers v. Rogers, 111 N. Y. 228, 18 N. E. 636; Robertson v. de Brulatour, 188 N. Y. 301, 80 N. E. 938; Story v. Palmer, 46 N. J. Eq. 1, 18 Atl. 363.
21. Woodward v. James, 115 N. Y. 346. 22 N. E. 150; Weeks v. Frankel, 197 N. Y. 304, 90 N. E.
969; Curran v. Green 18 R. I. 329, 27 Atl. 596.
22. Swisher v. Swisher, 157 Iowa, 55, 137 N. W. 1076; Mason v. Mason's Ex'rs, 2 Sandf Ch. (N.Y.) 432, aff'd, 2 Barb. (N. Y.) 229; Woodward v. James, 115 N. Y. 346, 357, 22 N.E. 150; Weeks v. Frankel, 197 N. Y. 304, 90 N. E. 969.
23. Such a trust has been regarded as invalid. Coster v. Lorillard, 14 Wend. (N. Y.) 265, 380; Greene v. Greene, 125 N. Y. 506 21 Am. St. Rep. 743, 26 N. E. 739, and as terminable at any time. Tilton v. Davidson, 98 Me. 55, 56 Atl. 215. That such a trust is valid is assumed in Harris v. Harris, 205 Pa. 460, 55 Atl. 30.
24-25. 1 Ames, Cas. trusts 222; Perry, Trusts, Sec.Sec. 59, 449 note, 476a note.
[ Sec. 105 trustee.26 A surviving trustee, though one of the beneficiaries, has occasionally been allowed to act,27 while in some eases the court has taken measures to prevent a beneficiary, though named in the creation of the trust, from acting alone.28