In re Estate of Webb

By the Court, Crockett, J.: The claim of the father and sisters of the deceased to the fund in controversy can be sustained, if at all, on no -other ground than that, by the two letters of the deceased to his sisters, he created and declared a present trust, to the effect that he held the policy of insurance in trust for his father and sisters. The transaction cannot be upheld merely as a donation inter vivos. There was no assignment or delivery of the policy to the father and sisters, and treated simply as a donation, it would fail for that reason. But a person intending to make a donation to another, and who clearly declares his purpose and transfers the title, need not necessarily part with the possession, provided he declares himself, in proper form, to be a trustee, holding possession for the donee. In such a case, he would thenceforth hold the property as a trustee and not in his own right. That such a trust, when properly declared, even in favor of a [545] volunteer, is valid, and will be enforced, is established by numerous authorities. “Where there is no valuable consideration, yet, if the settler, by a clear and explicit declaration, duly executed, and intended to be final and binding upon him, makes himself a trustee, Courts of equity will enforce the trust.” (Perry on Trusts, Sec. 96.) If the trust is perfectly created, so that the donor or settler has nothing more to do, and the person seeking to enforce it has need of no further conveyances from the settler, and nothing is required of the Court but to give effect to the trust as an executed trust, it will be carried into effect, although it was without consideration, and the possession of the property was not changed. Whether the trust is perfectly created or not is a question of fact in each case, and the Court, in determining the fact, will give effect to the situation and relation of the parties, the nature and situation of the property, and the purposes or objects which the settler had in view making the disposition.” (Id. sees. 98, 99.) In such cases the point to be determined is, whether the trust has been “ perfectly created ;” that is to say, whether the title has passed and the trust been declared, and the trust being executed nothing remains for the Court but to enforce it. In discussing this question the Court say, in Stone v. Hackett (12 Gray, 227): “It is certainly true that a Court of equity will lend no assistance toward perfecting a voluntary contract or agreement for the creation of a trust, nor regard it as binding so long as it remains executory. But it is equally true that if such an agreement or contract be executed by a conveyance of property in trust, so that nothing remains to be done by the grantor or donor to complete the transfer of title, the relation of trustee and cestui que trust is deemed to be established, and the equitable rights and interests arising out of the conveyance, though made without consideration, will be enforced in chancery.” The same proposition is announced, and the authorities fully collated and examined, in Kederick v. Manning, 1 De Gex, Mach, and Gord. 176. To the same effect are Jones v. Lock, Law Rep. 1 Chy. 25, and Wason v. Colburn, 99 Mass. 342. [546] We think these cases announce the correct rule, and are decisive of the present controversy. The letters from the deceased to his sisters did not purport and were not intended to be an assignment of the policy, the title to which remained in the deceased. It was not an executed trust, but at most nothing more than a voluntary executory agreement to create a trust in futuro, and such agreements cannot be enforced in equity. This view of the case renders it unnecessary for us. to decide whether the Probate Court had jurisdiction to enforce the trust, if it had been established. Judgment reversed and cause remanded for a new. trial. Mr. Justice McKinstry did not express an opinion.