- (a) Language sufficient for creation. An express trust is one created by language intended to have that effect, such language being known as a "declaration of trust."35

A declaration of trust usually accompanies a transfer of the property by the person declaring the trust, the grantee being named as trustee. Such a conveyance is, however, unnecessary, and the owner of property may, without parting with the ownership, declare a trust in favor of another, and will thus himself become trustee for such other.36

69 Pac 494; Giles v. Anslow, 128 111. 187, 21 N. E. 225; Wood v. Wood, 127 Ky. 514, 106 S. W. 226; Holmes v. Dalley, 192 Mass. 451, 78 N. E. 513; Speirs v. Roberts, 73 Mich. 666, 41 N. W. 841; Gardner v. O'Loughlin, 76 N. H. 481, 84 Atl. 935; Howze v. Barber, 29 S. C. 466, 7 S. E. 817.

34. Brown v. Higgs, 8 Ves. 561; Colton v. Colton, 127 U. S. 300, 32 L. Ed. 138; In re Reith's Estate, 144 Cal. 314, 77 Pac. 942; McDonald v. McDonald, 92 Ala. 537, 9 So. 195; Collins v. Carlisle's Heirs, 7 B. Mon. (Ky.) 13; Jar-nagin v. Conway, 2 Humph. (Tenn.) 50.

35. The words "express," "implied," and "constructive" are used in connection with trusts in different senses by different text writers and judges. Messrs. Lewin and Perry, for instance, apply the term "implied trusts" to trusts created by language intended to have that effect, but not explicitly stating that purpose, which are here considered as "express" trusts. That is, as it has been expressed, when the words are clear, they call the trust "express," and when less clear, they call the trust "implied." Maitland, Equity, 75. But "a trust is genuinely express even though the express language requires interpretation, if the express language, as construed, does state it fully." Article "The Classification of Trusts" by Frofessor George P. Costigan Jr. 27 Harv. Law Rev. 437.

The present writer desires to acknowledge the very great assistance which he has received from the article by Professor Costigan, above referred to, and from other articles by the same writer on the subject of Trusts, in 12 Mich. Law Rev. pp. 423, 515; 28 Harv. Law Rev. pp. 237, 366.

36. Lewin, Trusts (12th Ed.)

Sec. 106]

Equitable Ownership.

- No technical language necessary. No technical terms or expressions are necessary for the creation of a trust, any language being sufficient for the purpose if the intention to create a trust clearly appears.37

A trust is created even by what are termed "precatory" words,-that is, words which in themselves do not imply an absolute command, but rather a request,-if such words appear, in the particular case, to be used in a mandatory, and not a precatory, sense. Accordingly, a trust has been, in some cases, held to arise from a testator's use of such words as "desire," "request," "wish," "entreat," "in confidence," or "in the belief that," as imposing an imperative obligation upon the donee to make a certain disposition of the gift, or of a part thereof.38 No rule can be stated as to

71; 1 Perry, Trusts, Sec. 38; 1 Spence, Eq. Jur. 507; Johnson v. Anderson, 140 Ala. 342. 37 So. 273; Noble v. Learned, 153 Cal. 245, 94 Pac. 1047; Williamson v. Yager, 91 Ky. 282, 34 Am. St. Rev. 184, 15 S. W. 660; Blake v. Collins, 69 Me. 156; O'Neil v. Greenwood, 106 Mich. 572, 64 N. W. 511; Martin v. Funk. 75 N. Y. 134, 31 Am. Rep. 446; Locke v. Farmers' Loan & Trust Co., 140 N. Y. 135; Smith's Estate, 144 Pa. St. 428, 27 Am. St. Rep. 641; 22 Atl. 916; Gadsden,v. Whaley, 14 S. C. 210; Connecticut River Sav. Bank v. Albee's Estate, 64 Vt. 571, 33 Am. Rep. 944, 25 Atl. 487.

See post Sec. 106 (d) note 69.

37. Cockrill v. Armstrong, 31 Ark. 580; Maxwell v. Hoppie 70 Ga. 152; Anderson v. Crist, 113 Ind. 65, 15 N. E. 9; Kintner v. Jones, 122 Ind. 148, 23 N. E. 701; Blake v. Collins, 69 Me. 156; Ruhe v. Ruhe, 113 Md. 595, 77 Atl. 797; Sawyer v. Cook, 188 Mass. 163, 74

N. E. 356; O'Neal v. Geenwood, 106 Mich. 572, 64 N. W. 511; King v. Bishop, 62 Miss. 553; Hall v. Farmers' & Merchants' Bank, 145 Mo. 418, 46 S. W. 1000; Combs v. Brown, 29 N. J. L. 36; Steinhardt v. Cunningham, 130 N. Y. 292, 29 N. E. 100; Smith's Estate, 144 Pa. St. 428. 27 Am. St. Rep. 641, 22 Atl. 916; Ray v. Simmons, 11 R. I. 266, 23 Am. Rep. 447; Pownal v. Taylor, 10 Leigh (Va.) 172, 183, 34 Am. Dec. 725.

38. 1 Perry, Trusts, Sec.Sec. 112-116; Harding v. Glyn, 1 Atl. 469; Colton v. Colton, 127 U. S. 300, 32 L. Ed. 138; Plaut v. Plaut, 80 Conn. 673, 70 Atl. 52; Major v. Herndon, 78 Ky. 123; Handley v. Wrightson, 60 Md. 198; Noe v. Kern, 93 Mo. 367, 3 Am. St. Rep. 544, 6 S. W. 239; Penbroke Academy Trustees v. Epsom School Dist., 75 N. H. 408, 37 L. R. A. (N. S.) 646, 75 Atl. 100; Harrisons v. Harrison's Adm'x, 2 Grat. (Va.) 1, 44 Am. Dec. 365.

A trust may also arise from words indicating a desire that the property be used for the maintenance of one's family, as in the case of a devise of property to a testator's widow for the support of herself and testator's children; the question in such case, as in others, being whether the testator intended a command that the property be so appropriated, or merely used such expressions to indicate the motive of the gift.40

- (b) Not created by invalid gift. Since, as above indicated, in order to create an express trust, an intention to do so must appear,41 it follows that, if an intended gift is for some reason invalid, the transaction cannot be given effect as a declaration of trust.42 An exception to this general rule has, however, freand note; Knox v. Knox, 59 Wis. 172, 48 Am. Rep. 487, 18 N. W. 155. 39. 1 Perry, Trusts (5th Ed.) Sec.Sec. 114, 115, and notes; Underbill, Trusts (Am. Ed.) 21, 25, et seq.; Pomeroy, Eq. Jur. Sec. 1015; 4 Kent, Comm. (14th Ed.) 305, notes (b), (z); note in Harrisons v. Harrison's Adm'x, 44 Am. Dec. 377 (2 Grat. [Va.] 1); notes to Harding v. Glyn, 2 White & T. Lead. Cas. Eq. 1859, et seq., and see the large collection of decisions in regard to particular phrases in Ames, Cas. Trusts (2nd Ed.) 85-106.