Dillaye v. . Greenough

Folgeb, J. The learned counsel for the appellants conceded, that whatever right or interest in the premises in question was held by Dillaye in his own right, or by Mrs. Dillaye otherwise than as a cestui que trust, at the time of the execution of the deed to the defendants, passed thereby. The issue of the marriage of Dillaye and Mrs. Dillaye take no present interest in the lands. If they shall have a right therein, it will not accrue until after the death of Dillaye. The court expresses no opinion as to whether they will or will not then have a right. The ground, if any, upon which the deed to the defendants can now be assailed is this: that by the antenuptial contract, a valid express trust was created, and Dillaye constituted the trustee thereof, and that the deed to the defendants was void, as being in contravention of that trust. If it shall be found that a trust is created, it will not be difficult to determine that he is constituted a trustee, and *444 clothed with the legal estate in the premises. The instrument in terms “ makes, constitutes and appoints him a trustee.” Such phraseology is inappropriate to create an attorney in fact or an agent. It is appropriate to create a trustee. The intention to appoint an agent, or an attorney in fact, would not find expression in such a formula. The intelligent intention to constitute a trustee, could choose scarcely a form more apt. The other phrase, conferring upon him the power, “ to have the entire and sole management, direction and control,” of all the estate, taken in connection with the other, is sufficient to endue him with the legal estate therein. From such power expressly given, the trustee would take, by implication, the legal estate. For a legal estate would be required to fully perform the duty of managing, directing and controlling the property. (Brewster v. Striker, 2 Comst., 19; Leggett v. Perkins, 2 Comst., 297.) But here the contract stops. Assuming the intention to have been to constitute a trustee, and to create an active trust in him, such intention could be satisfied, only in accordance with the provisions of the statute. The Bevised Statutes (1 R. S., 728, § 55), declare, define or recognize the cases in which express trusts may be created: 1. To sell lands for the benefit of creditors; 2. To sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying some rent charge thereon; 3. To receive the rents and profits of lands, and apply them to the use of any person, etc.; 4. To receive the rents and profits of land, and to accumulate the same, etc. It is not claimed that a trust is created by this instrument within the first two subdivisions of the section. It is claimed that there is a trust to receive the rents and profits of lands. And doubtless the trust to manage, control and direct, is a trust to receive the rents and profits. But the instrument goes no further. It does not declare what shall be done with the rents and profits after they are received. There is no expression of what the trust is in this respect. In this silence of the instrument, if a trust is to be upheld, it must be for the court to say, from other facts, from circumstances not shown by the instrument or other writing, either *445 that the rents and profits are to he applied to the nse of a person, or to he accumulated for some purpose. And then, to go further, and without definite designation in the instrument itself or in any other writing, to point out the person for whose use they are to be applied, or the purpose for which they are to be accumulated, and to say in the last case, whether the trust is to commence on the creation of the estate, or at a time subsequent thereto. (1 R. S. 726, § 37.) It is urged that it may be implied from the very nature of a trust, that the trustee does not take for his own benefit. This being admitted, it is claimed that it necessarily results that the author of the trust was to be alone interested in its execution, no other person being named in that behalf, and that the estate was to be managed and controlled for her. But it does not so necessarily result that the author of a trust is to be beneficiary thereof, as that when the instrument is silent, the- court may unerringly supply the omission. A trust and a trustee of real property, may be created by any writing which passes the legal title to the trustee, and contains a proper declaration of the trust. (Hill on Trustees, 63-4.) But the writing, must declare what the trust is. (Smith v. Matthews, 3 De. G. F. & J. 139.) The statute of frauds (2 R. S., 134, § 6), declares that no trust or power over or concerning any lands or in any manner relating thereto, shall be created unless by act or operation of law, or by a deed or conveyance in writing. Under a statute very like this in its provisions (1 R. L., 79, § 11), it was held that the trust must appear in writing, with absolute certainty as to its nature and terms, before the court can undertake to execute it. A trust must be manifested and proved by writing, and the nature of the trust, and the terms and conditions of it, must sufficiently appear, so that the court may not be called upon to execute the trust in a manner different from that intended. (Steere v. Steere, 5 J. C. R., 1.) Every agreement which is, by the statute of frauds, required to be in writing, must be certain in itself, or capable of being made so by reference to something else whereby the terms can be ascertained with reasonable precision, or it cannot be *446 carried into effect. (Abeel v. Radcliff, 13 J. R., 297.) It would be wandering wide from the express provisions of the statute, and from the rules established by the courts, if we were to take up this instrument where it stops after constituting a trustee and giving the power of management and control, and to frame the trust itself by implication. Plausible reasons might be given for a trust to apply the rents and profits to the use of other than the author of the trust, or for a trust to accumulate them for some lawful purpose. There is no implication so clearly shown as that no other can by possibility be made. But it is sufficient to say that the terms and conditions of the trust must be expressed in writing. It follows, then, that there is no trust manifested by the antenuptial agreement which the court can execute. And further, that there is no right now existing and enforceable, in favor of which the court can adjudge in this action to any extent of the prayer of the complaint. The judgment of the General Term should be affirmed, with costs to the respondent. All the judges concurring except Andrews, J., who did not sit. Judgment affirmed.