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 .
30. Lemen v. McComas, 63 Md. 153; Richardson v. Stodder, 100 Mass. 528.
31. Ante Sec. 107 (b).
A, subject to a trust in favor of B for life, A 's legal title, and the trust based thereon, would prima facie be regarded as terminating on B's death, this view being sometimes in terms based on the theory, generally recognized in this country,32 that the estate of the trustee is of such extent only as is necessary for the purposes of the trust,33 and sometimes on the theory that the Statute of Uses intervenes to divest the legal title of the trustee so soon as his active duties come to an end.34 The latter theory is obviously applicable only when the former is inapplicable, that is, if the trustee's estate is created only to endure until the purposes of the trust have been accomplished, he has thereafter no estate on which the statute can operate. Occasionally the effectiveness of the statute thus to divest an estate which has once been actually vested in the trustee, merely because the trustee ceases to have active duties to perform, appears to be denied.35
The view, above referred to, that the legal estate is divested out of the trustee so soon as the necessities of the trust will allow, has been applied in the case of not in England,42 the court will not decree such a conr veyance, or a termination of the trust, on the demand of the cestuis, if the termination of the trust will obviously be inconsistent with the intention of the creator of the trust.
32. Ante Sec. 106 (g).
33. Doe, Lessee of Poor, v. Con-sidine, 6 Wall. (U. S.) 458, 18 L. Ed. 869; Young v. Bradley, 101 U. S. 782; Schaffer v. Lauretta, 57, Ala. 14; Noble v. Andrews, 37 Conn. 346; Prey v. Allen, 9 App. D. C. 400; Numsen v. Lyon, 87 Md. 31; Coulter v. Robertson, 24 Miss. 278, 341, 57 Am. Dec. 168; Nlcoll v. Walworth, 4 Denio (N. Y.) 385; Bacon's Appeal, 57 Pa. St. 504.
34. Speed v. St. Louis M. B. T. R. Co., 86 Fed. 235; Gosson v. Ladd, 77 Ala. 223; Frey v. Allen, 9 App. D. C. 400; Meacham v. Steele, 93 111. 135; Hooper v. Feigner, 80 Md. 262, 30 Atl. 911; Potomac Lodge v. Miller, 118 Md.
405, 84 Atl. 554; Morgan v. Moore,
3 Gray (Mass.) 319; Denison v. Denison, 185 N. Y. 438, 443. 78 N. E. 162 (local Statute); Bacon's Appeal, 5 Pa. 504; Snelling v. Lamar, 32 S. C. 72, 17 Am. St. Rep. 835. 10 S. E. 825; Holder v. Melvin, 106 S. C. 245, 91 S. E. 97; 1 Perry, Trusts, Sec. 320.
35. McFall v. Kirkpatrick, 236 111. 281, 86 N. E. 139; Dakin v. Savage, 172 Mass. 23, 51 N. E. 186; Gadsden v. Cappedville, 3 Rich L. 467. And this appears to be the view of the English courts. Doe d. Shelley v. Edlin,
4 Ad. & El. 582; Doe d. Cadogan v. Ewart, 7 Ad. & El. 636; Doe v. Davies, 1 Q. B. 430, 438; Creaton v. Creaton, 3 Sm. & Glf. 386.
[Sec. 116 trusts for the separate use of a married woman, the legal title being considered not to remain outstanding after the cessation of the purpose of the trust by the death either of the woman herself,36 or of her husband,37 or by divorce.38
- (d) Option in cestuis. The cestui que trust, or all the cestuis que trust, if more than one, if in existence and under no personal disability, may frequently call on the trustee for a conveyance to him or them of the legal title, and obtain a decree for the making of such a conveyance, the effect of such a conveyance being to terminate the trust, since the trustee, no longer having control of the property, is under no obligation to the cestui in regard thereto.39 But a part only of several cestuis que trust cannot usually demand a conveyance,40 and by the decisions in this country,41 though the validity of such a restriction,44 that is, the trust should assume the form of a spendthrift trust.
36. Frey v. Allen, 9 App. D. C. 400; McNair v. Craig, 36 S. C. 100; Numsen v. Lyon, 87 Md. 31; Moore v. Stinson, 144 Mass. 594; Ellis v. Fisher, 3 Sneed (Tenn.) 231, 65 Am. Dec. 52.
37. Coughlin v. Seago, 53 Ga. 250; Roberts v. Moseley, 51 Mo. 282; Kuntzleman's Trust Estate, 136 Pa. St. 142, 20 Am. St. Rep. 909; Snelling v. Lamar, 32 S. C. 72, 17 Am. St. Rep. 835, 10 S. E. 825.
38. McNeer v. Patrick, 93 Neb. 746, 142 N. W. 283.
39. 1 Perry, Trusts Sec. 920; 1 Ames, Cas. Trusts, 453; Olsen v. Youngerman, 136 Iowa, 404, 113 N. W. 938; Thorne v. Thorne, 125 Md. 119, 93 Atl. 406; Smith v. Harrington, 4 Allen (Mass.) 566; Sears v. Choate, 146 Mass. 395, 4 Am. St. Rep. 320, 15 N. E. 786; Rector v. Dalby, 98 Mo. App. 189, 71 S. W. 1078; Matthews v. McPherson, 65 N. C. 189; Culbert-son's Appeal, 76 Pa. 145; Nightingale v. Nightingale, 13 R. I. 113; Armistead's Ex'rs v. Hartt, 97 Va. 316, 33 S. E. 616.
40. 1 Ames, Cas. Trusts, 452, 453; Goodson v. Ellisson, 3 Russ. 583. Gray v. Union Trust Co. of San Francisco, 171 Cal. 637, 154 Pac. 306; Paine v. Forsaith, 86 Me. 357, 30 Atl. 11; Smith v. Smith, 70 Mo. App. 448; In re Stafford's Estate, 250 Pa. 595, 102 Atl. 222; Carney v. Byron, 19 R. I. 283, 35 Atl. 5; Hayward v. Tacoma Savings etc. Co., 88 Wash. 542, 153 Pac. 352. But see Inches v. Hill, 106 Mass. 575.
41. Shelton v. King, 229 U. S. 90, 57 L. Ed. 1086; In re Estate of Yates, 170 Cal. 254, 149 Pac. 555; Rhoads v. Rhoads, 43 111. 239; Wagner v. Wagner, 244 111. 101. 18 Ann. Cas. 490, 91 N. E. 66; Blackburn v. Blackburn, 167 Ky.
An intention on the part of the creator of the trust, that the trust shall continue, thus usually given effect by the courts of this country, in spite of the desire of the cestui or cestuis to terminate it. is ordinarily, perhaps invariably, based on the assumption that this is to the advantage of the beneficiaries, or of some of them, as protecting them against their own improvidence or pecuniary misfortunes. Such protection of the beneficiaries of the trust is, however, attained but partially, if at all, by a restriction upon the termination of the trust, so long as their beneficial interests are subject to transfer, since in that way the trust can be terminated, so far as they are concerned.43 In order to give them complete protection a restriction on alienation should be inserted, in such states as recognize que trust, a conveyance or surrender of the legal title to the cestui que trust may, in order to support a just title, he presumed, provided there is some evidence to support the presumption.49 The practical effect of the presumption, when recognized, has been to support a judgment in ejectment in favor of one in possession of the land, although he is able actually to show merely an equitable title. The exact limits of the presumption appear at one time to have been the subject of frequent discussion and litigation in England,50 hut it has lost its importance, as equitable defences have been made available in ejectment. Moreover, as before stated, the courts tend to regard the legal title as vested in the beneficiary, after the purpose of the trust has been effected, without the necessity of an actual conveyance.51
113, 180 S. W. 48; Gunn v. Brown, 63 Md. 96; Claflin v. Claflin, 149 Mass. 19, 3 L. R. A. 370, 14 Am. St. Rep. 393, 20 N. E. 454; Dunn v. Dobson, 198 Mass. 142, 84 N. E. 327; Ray v. Kelly, 82 Miss. 597, 35 So. 165: Easton v. Demuth, 179 Mo. App. 722, 162 S. W. 291; Zabriskie's Ex'rs v. Wetraore, 26 N. J. Eq. 18; Story v. Palmer. 46 N. J. Eq. 1. 18 Atl. 363; Campbell V. Clough, 71 N. H. 181. 51 Atl. 668, (semble); Cutbbert v. Chau-vet, 136 N. Y. 326, 18 L. R. A. 745, 32 N. E. 1088; Matcalfe v. Union Trust Co., 87 N. Y. App. Div. 144, 84 N. Y. Supp. 183; Hill v. Hill, (Okla.) 152 Pac. 1122; In re Kreb's Estate. 184 Pa. 222, 39 Atl. 66; In re Henderson's Estate, 258
Pa. 510, 102 Atl. 217; Hayward v. Tacoma Sav. Bank. 88 Wash. 542, 153 Pac. 352; Carney v. Kain, 40 W. Va. 758, 23 S. E. 650; Cowie v. Strohmeyer, 150 Wis. 401, 13G N. W. 956, 137 N. W. 778.
42. Saunders v. Vautier, 4 Beav. 115; Wharton v. Masterman, App. Cas. (1895) 186; and r,ee
Rector v. Dalby, 98 Mo. App. 189, 71 S. W. 1078. As to the comparative soundness and expsdi-ency of the English and American views, see article by Professor Scott, 65 University of Pa. Law Rev. at pp. 648. 649.
43. See Stier v. Nashville Trust Co., 158 Fed. 601; note 24 Harv. Law Rev. at p. 224.
Adopting the view above referred to, that a court of equity will not require the trustee to convey the legal title to the cestuis if this would defeat the intention of the creator of the trust, a question arises as to whether there is any restriction as to the time during which such intention can he allowed to operate, whether, for instance, if the terms of the instrument creating a trust indicate an intention that the trust shall continue through a period of three hundred years, will the court, in spite of the desire of the cestuis to terminate it, allow it so to continue. It has been suggested45 that the courts might perhaps adopt as a measure of the possible duration of a trust the same measure of time as they have adopted in connection with remoteness of vesting, that is, a life or lives in being and twenty-one years thereafter.46
In spite of the indisposition of the courts to decree a conveyance of the legal title to the cestuis, if the intention of the creator of the trust is thereby defeated, it would seem that if the trustee chooses to make a conveyance, and this is not repudiated by the cestuis, the trust must come to an end, irrespective of the intention of its creator, there being no person in a position to question the validity of the conveyance, or to assert any continuing obligation upon the trustee.47 There are, however, occasionally judicial assertions to the contrary.48
In cases in which the circumstances are such that it would be the trustee's duty to convey to the cestui named as beneficiaries, and the purposes of the trust are benevolent, nevertheless if the trust is not necessarily to be exercised for the benefit of the community as a whole, or of some class of the community, consisting of indefinite persons, the trust is not within the protection accorded to charitable trusts, and is consequently invalid, with a few possible exceptions, as having no definite beneficiaries.57
44. Post Sec. 592 (g)).
45. See Winsor v. Mills, lb7 Mass. 362, 32 N. E. 352; In re Shallcross' Estate, 200 Pa. 122, 49 Atl. 936; Paine v. Forsaith, 86 Me. 357, 30 Atl. 11; Gray, Rule against Perpetuities, Sec. 121a.
46. Post Sec. 179.
47. 1 Ames, Cas. Trusts, 458, citing Lemen v. McComas, 63 Md. 153.
48. Wills v. Cooper, 25 N. J. L. 137; Rife v. Geyer, 59 Pa. 395 (spendthrift trust, conveyance invalid).