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 .
In order that a valid trust may exist, it is necessary, in the ordinary case, that there be a definite cestui que trust, or definite cestuis, who may assert the obligation upon the part of the trustee to deal with the trust res in accordance with the terms or nature of the trust,29 and this requirement applies in the case of a trust for a benevolent, as distinguished from a charitable, purpose;29a as in a leading case in which, because of the uncertainty of the beneficiaries, a trust for such objects of benevolence and liberality as the trustee shall approve was de26. Woodbridge v. Bockes, 170 N. Y. 596, 59 N. Y. App. Div. 503, 69 N. Y. Supp. 417; People v. Donohue, 70 Hun (N. Y.) 317, 24 N. Y. Supp. 437.
27. Rankine v. Metzger, 69 N. Y. App. Div. 264, 74 N. Y. Supp. 649, aff'd, 174, N. Y. 540, 66 N. E. 1115: Weeks v. Frankel, 197 N. Y. 304, 90 N. E. 969.
28. Rogers v. Rogers, 111 N. Y. 228- 18 N. E. 636; Irving v. Irving, 21 N. Y. Misc. 743. 47 N. Y. Supp. 1052; Matter of Town-send's Estate, 73 N. Y. Misc. 481, 133 N Y. Supp. 492; 25 Harv. Law Rev. at. p. 482.
29. Morice v. Bishop of Durham, 8 Ves. 399, 10 Ves. 522; Filkins v. Savern, 127 Iowa, 738, 104 N. W. 343; Barkley v. Lane's Ex'r, 6 Bush (Ky.) 587; Chamberlain v. Stearns, 111 Mass. 267 Nichols v. Allen, 130 Mass. 211, 39 Am. Rep. 445; Holland v. Alcock,
When words of this character will be regarded as mandatory, and so create a trust, but the tendency of the later cases is to so regard them only when the intent of the testator to that effect is clearly apparent, and the fact that the person to be benefitted or the property to be given him is uncertain, tends strongly to exclude the inference of a trust.39
Cided to ho invalid..29b In the ease of a strictly charitable trust, however, the uncertainty of the beneficiaries does not, in most jurisdictions, affect the validity of the trust, this uncertainty being indeed a necessary element in such a trust,30 and the state acting through the attorney general, being in a position to enforce the rights of the beneficiary class. And possible exceptions to the general rule are also presented by occasional decisions upholding "trusts," so called, for the saying of masses, the keeping of a grave or cemetery in repair, and manumission of slaves.31 Such a trust, without any beneficiary to enforce it, is valid in the sense merely that if the person named as trustee chooses to carry it out, the persons who would he beneficially entitled were it not for the trust, have no legal cause of complaint.
108 N. Y. 312, 2 Am. St. Rep. 420, 16 N. E. 305; In re Dyer's Appeal, 107 Pa. St. 446; Weaver v. Spurr, 56 W. Va. 95, 48 S. E. 852; In re Kavanaugh's Will, 143 Wis. 90, 28 L. R. A. (N. S.) 470, 126 N. W. 672; and other cases cited, Gray, Perpetuities, Sec. 894.
29a. Adye v. Smith, 44 Conn. 60, 26 Am. Rep. 424; Troutman v. De Boissiere Odd Fellows' Orphans' Home & Industrial School Ass'n (Kan.) 5 L. R. A.;N. S.) 692, 64 Pac. 33; Old" South Society v. Crocket, 119 Mass. 1, 20 Am. Rep. 299; Fox v. Gibbs, 86 Me. 87, 29 Atl. 940; Attorney General v. Soule, 28 Mich. 153; Norris v. Thomson's Ex'rs. 19 N. J. Eq. 307; People v. Powers, 147 N. Y. 104, 35 L. R. A. 502, 41 N. E. 432; Swift v. Beneficial Society, 73 Pa. St. 362; Kelly v. Nichols, 17 R. I. 306, 21 Atl. 906.
In harmony with the requirement of a definite cestui que trust or definite cestuis que trust, who may assert an obligation upon the part of the trustee to deal with the trust res for his or their benefit, are the numerous decisions to the effect that in order to create an express trust the language used must be such as to create a legal obligation as distinct from a mere moral duty, upon the part of the trustee, to deal with the res for the benefit of another or others.32 Accordingly if the trustee is given such a discretion in this regard as not to be subject to control by the court, the trust will fail,33 but it will not fail merely because he is given a
29b. Morice v. Bishop of Durham, 9 Ves. 399, 10 Ves. 522. For discussions as to the soundness of this doctrine, see articles by Professor J. B. Ames in 5 Harv. Law Rev. at p. 389, and by Prof. J. C. Gray in 15 Harv. Law Rev. at p. 509, also Editorial note, 11 Harv. Law Rev. at p. 529.
30. Post Sec. 117.
31. See citations 5 Harv. Law
Rev. at p. 389, et seq; 15 Id. at p. 509 et seq; 10 Mich. Law Rev at p. 31, G5 University of Pa. Law Rev. p. 539. See also 2 Perry, Trusts (6th Ed.) Sec. 715, note.
32. Ames, Cas. Trusts, 93, 98; 1 Perry, Trusts (6th Ed.) Sec.Sec. 112, 117, notes; post Sec. 106.
33. Biddies v. Biddies, 16 Sim. 1; Thorp v. Owen, 2 Hare, 607, 608; In re Sanford's Estate, 136 Cal. 97,
[ Sec. 106 discretion as to the mode of distribution of the income as between members of a class, the class as a whole being in such case regarded as entitled to insist upon the making of distribution.34