« EelmineJätka »
while she could sue and be sucd in reference to all cation, the defendants are entitled to know who of the property which she acquired from other those persons are in order to be prepared to meet that sources than her husband, she could not sue or be part of the case as far as they may be able to do so sued in reference to property that she acquired from by proof upon the trial." him. If therefore the husband should, through fraud or conversion, procure money or other prop
In Beacunnon v. Liebe, 11 Oreg. 443, it was held erty, and then give the same to his wife, the wife
that although two partnerships, composed, in part, would be protected in the retaining of the posses
of the same individuals, could not sue each other at sion of the property, for having received from her husband, she could not be sued therefor. So | law, yet that a balance of account, due from one of
such partnerships to the other, might be assigned, matter whether she was authorized to take and holil
and the assignee might maintain an action to recover property from her husband, the effect of the act
such balance unless it should appear that a general was to prevent her from being sued. It was to remedy this defect that the act of 1862 was passed, accounting was necessary between the two tirms to
ascertain such balance. The court said: "The in which the words except her husbanıl' were properly left out of section 7, but still retainest in difficulty at law arises from the fact that all the
partners must join and be joined in the action, and section 8. No other legislation appears to have affected the question. It consequently appears to
as no person can maintain an action against himself,
or against himself and another, it could not be susus that section 3 of the act of 18-19 is still in full
tained. (Story's E4. Juris., $ 679.) Equity howforce, unrepealel, and that the words therein con
(ver treats the copartnership as a distinct existence, tained, other than her husbanıl,' prevent her from
looks behind the form of the transactions to their taking title by grant of her husband. The case of
substance, and treats the different firms, for the IIilut v. Johnson, 4+ V. Y. 27; S. C., 4 Am. Rep. 631, is the most favorable decision to the plaintiff's purpose of substantial justice, exactly as if they
were composed of strangers, or were, in fact, corclaim to which our attention has been called. The
porate companies. Il. § 6$0. conclusions reached by !Iunt, Commissioner, have assignment of the claim freel it entirely from the
In this case, the been questioned and criticised upon the ground objection that a person cannot maintain an action that the authorities upon which he relies do not
against himself. That feature in it has been resustain the position taken by him. (see 13 All).
moved by the assignment, and upon that point it L. J. 110.) But concealing the rule to be as he
stands upon the same ground as the cases cited by states it, the wife is not here asking to have the appellant's counsel o f More V. ILolland, 39 Me. deerd to her, upon the nominal consideration of one
30+; Thayer 1. Buijum, 11 Met. 398, and Pitcher v. dollar, established by il court of equity, but her
Bauroux, 17 Pick. 361. And we see no reason why illegitimate son, a stranger to Abel Easterbrooks
such objection, where it is merely technical, cannot and his daughter, and if it court of equity will not
be obviated in that way, where the assignment is interfere as between persons standing upon the same
actual and real. The respondent's promise that the meritorious consideration, as between wife and
assignee acquires no higher rights than those held child of the grantor, it will not in favor of a
by his assignors, is undoubtedly correct, but his stranger who has no claim upon the grantor for
conclusion drawn therefrom is not supported by it. support and maintenance."
The question of riglit is not involved in the mat
ter; it is il question of disability. One firm could In Noin Yorki Infint 1 sylum v. Roosevell, :3.5 Hun, assign the claim, when owing to the peculiar cir501, it was held that in an action of libel, brought cumstances referred to, they could not maintain an by a charitable corporation, alleging losi of dona action upon it in their own name; the assignment tions, il bill of items shoull be furnished giving the removed that disability. The case of Thinjer v. names of the donors. The court sail: “The rules | Buitim, supru, is decisive of that point. See also prescribing what such a pleading is this complaint 18 V. 1. 71." Tayolen v. Whitmore, 74 Ve. 2:30); shoull be require that this information shall be Imulr v. Wilson, 112 Vass. 141. In Lerned v. -lyres, given the defendants. That was considered in 11 Mich. 677, it was held that the assiguee could Turtly v. llerring, $ T. R. 130, where it was held not bring suit. that the declaration should state the names of the customers whose patronage has been withdrawn In ("lin 1. Smith, 15 Abb. X. C. 241, it was from the plaintill by reason of il slanılerous publi held that an assignment for the benefit of creditors cation. This complaint has not complies with that under the laws of this State is not invalidated by rule, except ils to the two persons, Fisher and reason of it clerical error in the certificate of Parke, whose names seem to have been given, so acknowledgment. In that case the officers certifar as they were known, and to remely the deti ficri personal appearance, etc., of the party described ciency in this respect the orders requiring the names in and who executed "the sumi; " instead of the of the persons referred to, to be given, were regu “within instrument." Davis, P. J., said: “The act larly made If the plaintiff expects to be able to (Laws of 1977, ch. 466) looks only to the substance make proof of the fait, that persons have withheld of the thing, and is satisfied when the act appears charitable donations from it because of this public in that respect to have been complied with, no form
of certificate is therein prescribed, and conse
word is not defined in the Code, nor do we find any quently it need not be in any particular form. Ritter definition of it in the law lexicographies. In our v. Worth, 58 N. Y. 627; Sheldon v. Stryker, 42 Barb. opinion, as used in article 496 of the Penal Code, 284; West Point Iron Co. v. Reyment, 45 N. Y. 703. and as commonly understood in this country, it has It is the policy of the law to uphold a certificate a more comprehensive signification than that given when substance is found (Kelly v. Calhoun, 95 U. S. it by Mr. Webster. We understand a decrepit per710), and it should be the aim of courts in cases of son to mean one who is disabled, incapable or indefective certificates to preserve and not to destroy, competent, from either physical or mental weakand the court should be astute to find means to ness or defects, whether produced by age or other make official acts effectual. Morse v. Clayton, 21 causes, to such an extent as to render the individual Miss. 373; Wells v. Alkinson, 24 Minn. 161, and for comparatively helpless in a personal conflict with that purpose the courts may refer to the deed itself. one possessed of ordinary health and strength, We In Schurfenburg v. Bishop, 35 Iowa, 60, the word think that within the meaning of the word as used
appeared was omitted, and it was held obviously in the Code, a person may be decrepit without being a mere clerical error. In Davar v. Cardwell, 27 Ind. old; otherwise the use of the word in the Code 478, the form of the certificate was “acknowledged would be tautology. It certainly was intended by it” and it was held that “it” meant the deed. In the legislature that it should signify another state Pickett v. Doe, 5 Smedes & M. 470, the acknowledging or condition of the person than that of old age. officer inserted his own name instead of that of the Thus where the party assaulted was a man about grantor and this was held not to be fatal. In Sum- fifty years old, disabled by rheumatism to such an. uels v. Shelton, 48 Mo. 444, the mistake was an extent that he was compelled to carry his arm in an omission to identify the deed and it was held to be unnatural position, and in such a manner as to renof no consequence, because it was obvious what was der it almost if not entirely useless to him in a intended. In Rigler v. Cloul, 14 Penn. St. 364, the personal difficulty, it was held, that whilst · his court say: 'It is against the spirit and genius of condition might not come technically within the our government to extend nice, technical objections word meaning of the decrepit as defined by Mr. to the acts of magistrates and other functionaries of Webster, yet it might with propriety be said that the law who are called periodically from the mass of it fell in the measure of that word as used in comthe people to discharge such duties, without pre mon acceptation. Bouden v. State, 2 Tex. Ct. vious legal learning or experience, and thereby dis-App. 56." turb estates long settled and purchased for full MOVABLE PROPERTY.— A growing and unripe value, and thus revest the estate in the hands of the crop
"morable" “personal property." original vendor by a legal quirk.' And see Wuruer Turdeman v. State, 16 Tex. Ct. App. 1. The court
Jeffray, 96 N. Y. 2-18.” See also 14 Abb. N. C, said: “We now recur to the question, is growing 452, note, 25 Alb. Law Jour. 16; 14 Eng. R. 500; cotton movable property, as alleged in the indictSmith v. Boyle, 67 IIow. Pr. 351; S. C., 18 lVeek. ment? Movable' property is such as attends à Dig. 461.
man's person wherever he goes, in contradistinction
to things immovable. 2 Bouv. Law Dict. word COMMON TVORDS AND PIIRISES. Jovubles.' Thus money, jewelry, clothing, house
hold furniture, boats and carriages are said to ECREPIT.— In a statute concerning assault and follow the person of the owner wherever he goes;
battery upon “decrepit persons,” those words they need not be enjoyed in any particular place; mean those who are disabled, incapable or incom- and hence they are movable. 1 Schoul. Pers. Prop. petent, from either physical or mental weakness or 25. Certainly crop of cotton growing upon land defects, whether produced by age or other causes, cannot by any stretch of the rules of construction to such an extent as to render them comparatively be brought within this definition of movable prophelpless in personal conflicts with persons of ordi-erty. It is most clearly a thing immovable. It may nary health and strength. Llull v. Stute, 16 Tex. however become movable. Says the author last Ct. App. 6. The court said: “What meaning are quoted: ‘Fruits so long as they are hanging on the we to give to the word decrepit ? Words used in trees, the crops until they are gathered, and timber the Penal Code, except where specially defined by trees while they are standing, are things immovable, law, are to be taken and construed in the sense in or real estate, because they are attached and apwhich they are understood in common language, pendent to the ground. But when the fruits or taking into consideration the context, and subject- crops are gathered, or the trees cut down, as they matter relative to which they are employed. Penal | then cease to be attached to the soil, they become Code, art. 10. Mr. Webster makes the word de- movables. 1 Schoul. Pers. Prop. 123. We think it crepit' a dependent of old age; that is, according too plain to be controverted, or to require a further to his definition, before a person can be decrepit, investigation of authorities, that a crop of growing old age must have supervened upon such person. cotton is immovable property, and is not within the He defines the word thus: 'Broken down with age; meaning of 'movable property' as used in the article wasted or worn by the infirmities of old age; being of the Penal Code under which this conviction was in the last stage of decay; weakened by age.' This obtained.
There may be personal prop
erty which is not movable. Personal property not not properly describe in association which mined only includes movable property, but more.
It is a
and sold ore and coal from its own lands, or sank more comprehensive word. Thus crops growing oil wells and sold their peoduct, and we see no difupon
land are held to be personal property, so far as ference between the production and sale of such not to be considered an interest in land, under the substances so far as this controversy is concerned, Statute of Frauds, 2 Bouv. Law Dict., ‘Personal
and the business now in question.' Property.' So annual crops, if fit for harvest, may
NECESSARIES FOR TIIE SUPPORT AND MAINTENacquire the character and incidents of personal ANCE OF TIJE FAMILY.– Funeral expenses property, so far as to be subject to execution as within this definition. Buir v. Robinson, Pennsylpersonal chattels.
Gumbrell, W. and W. vania Supreme Court, February, 1885. The court Con. Rep., § 997. But it has never been held that said: “We are inclined to think with the dissentan ungathered crop, still appendant to the ground, ing judge below, that all legitimate expenses that is, under any circumstances, movable property.
are required for a decent maintenance of the family While the question, as to whether or notcotton
in the rank of life to which it is accustomed, not growing is personal property within the meaning of only ought to be regarded as necessaries, but are in the article of the Code referred to, is not presented fact such, and that it is impossible to characterize as directly for our determination, we deem it not im decent the refusal of a daughter, who has the means proper for us to say that in our opinion crops do so to do, to remove from her household and dispose not become personal property, as a general rule, of in a proper manner the dead body of her mother. until they are ready to be harvested.”
A child, or as in this instance a mother, must not MERCIANT.— A coal and oil mining association only be housed, fed, and clothed when in health, is not a mercantile one. Com. v. Milural Gas ('0.,
proper medical attendance and nursing when Penn. Com. Pleas. The court said : “Who then is sick, but must also, is only for the welfare of the a merchant ? Tomlins' Law Dictionary (eds. of remainder of the family, be buried out of sight when 1796 and 1835), defines him as “one who buys and
dead. Common decency, as well as health and comtrades in any thing,' adding, but every one who fort, requires this." buys and sells is not at this day under the denom TELEGRAPII, TELEPHONE.— A telephone is a teleination of a merchant; only those who trafllc in the graph. Com. v. Penn. Telephone Co., Pennsylvania way of commerce by importation or exportation, or Common Pleas, February, 1885. The court said: carry on business by way of emption, vendition, A telegraph line is such whether it be furnished barter, permutation or exchange, and who make it with the Morse instruments, or the Ilughes' type their living to buy and sell by a continued assi writing instruments, or any one of the many de. duity or freyuent negotiations in the mystery of vices which have been invented to accomplish the merchandising, are esteemed merchants.' Abbot's same purpose. One may be better or more practiLaw Dictionary describes him as “one whose busi cal than another; some may require skilled operators, ness it is to buy and sell,' and Bouvier uses the and others may not; but all, while each differs from same language, adding, this applies to all persons the others in details, are alike in this: they are who habitually trade in merchandise.' Webster, telegraphs because they transmit intelligence to a among other clefinitions gives these one who buys distance, whether hy conventional signs or signals, goods to sell again; and one who is engaged in the by written or printer letters, or by articulate purchase and sale of goods.' (See also Soule Eng. speech. That the word telegraph,' which desigSyn., Jerchant, Mercantile Trade; Smith Syn. Dis nates them all, is formed from Greek roots which crim., Commercial Traile; and the dictionaries of signify 'far' and '10 write,' is of no consequence Richardson, Johnson, Walker and Worcester under in this connection. The essence is the sending of the words italicised. The leading islea in all the intelligence to a distance. The words by which the definitions of a merchant, whatever restriction as Germans, the French, the Portuguese, and many to the kind and extent of his business has sometimes other nations, respectively; designate what we call been thought necessary to justify the use of the a 'railroad,' mean literally an 'iron road; ' yet a word, is of one who Ibuti buys to sell again, and roul luid with steel rails, and without any iron bewho does both, not occasionally or incidentally, ing used in its construction, would now be desigbut habitually and as a business. This view of the nated by the same words, although they were at subject is taken also by the Pennsylvania authori- first used because at the time railroads were introties. Vorris v. Commonweuille, 3 Casey, 491; (om duced into those countries, the rails were in nearly monreulth v. Campbell, 9 Casey, 380, to which may every instance made of iron." (Citing 1ttorneybe added Barton v. Morris, 1 11. V. C. 5-13, decided General v. Eliswil Telephone Co., 6 Q. 1. Div. 241.) in 1875 by Juilge Biddle and acquiesced in 110 "The same colition of Webster defines il 'telegraph' doubt because of his clear and satisfactory reasons. to be be a machine for communicating intelligence It seems plain therefore that a mercantile 'part from a distance by various signals or movements nership is one which habitually buys and sells, previously agreed upon, which signals represent which buys for the purpose of afterward selling, letters, worils, or ideas which can be transmitted and that a business such as is conducted by the de- from one station to another, its far as the signals fendant is not mercantile. Surely that word would can be seen. This definition shows that the word
telegraph’ did not originally include the idea of Y. 422; Pope v. Savings Bank, 30 Alb. L. J. 331 (to aptransmission over a wire by means of electricity or
pear in 56 Vt.); Taylor y. Henry, 48 Md. 550. otherwise, but merely signals addressed to the eye;
The case of Young v. Young is the leading case in
this country on this point, and deserves more than a and compared with the later definition, illustrates
passing notice. One Young placed in two envelopes. the changes of meaning which words necessarily coupon bonds, and upon each envelope he ivdorsed a undergo in consequence of the never ceasing pro memorandum signed by him to the effect that certain gress of discovery and invention.
of the bonds belonged to his son William, and the re
mainder to his son John; but that the interest to bethink, as there suggested, that the question whether
come due upon them was “owned and reserved” by it is correct to speak of the telephone as actually
him (the father) during his life; and that upon his transmitting sound, is a question of words rather death the bonds were to belong absolutely and enthan ideas. Sound is not an entity in the sense in tirely to them and their heirs." The Court of Apwhich a material substance is such. When a loaded peals of course held that no valid gift had been made
because there was no delivery. It was urged by the cannon is discharged, the ball is actually transmit
respondent that effect should be given to the intented and will make its presence known by actual
tion of the decedent by construing the defective gift impact upon any substance, animate or inanimate, as a valid declaration of trust. In answer to this arguin its path. But the same cannot be said of the ment the court said: “The difficulty in establishing sound produced by the discharge. The undulations
such a trust is that the donor did not undertake or atof the air thus cansed will, indeed, strike any sub-tempt to creute it, but to vest the remainder directly in
the donees. Assuming for the purpose of the argustance they meet in their widening circle, but these
ment that he might have created such a trust in himundulations are not sound. Sound is the effect self for the benefit of his sons, and further that he produced by the undulations when they come in might have done so by simply signing a paper to that contact with an organism susceptible of having this
effect and retaining it in his own possession without effect produced upon it. IIence we are using words
ever having delivered it to the donees or any one for
them, yet he did not do so. Ile simply signed a paper very loosely when we speak of sound being trans-certifying that the bonds belonged to his sons. He mitted through the air or through a speaking tube. did not declare that he heli them in trust for the donees, And manifestly, even this transmission through the but that they owned them, subject to the reservation, air is not what is meant when it is said that the and were at his death to bave them absolutely. * * * sound is transmitted by the telephone, for the trans
It is established as unquestionable law that a court of
equity camnot by its anbority render that gift perfect mission is practically instantaneous, and not lim
which the donor has left imperfect, and cannot conited to the rate at which the undulations of the air
vert an imperfect gift into a declaration of trust are known to move. But this merely by the way; merely on account of that imperfection.
* * * The in any event it cannot be a controlling factor in the words of the donor in the present; case are that the decision of the case.
bonds are owned by the donees, but that the interest SHOP.— The office of a corporation for loaning for so long as he shall live; and at his death they be
to accrue thereon is owned and reserved by the donor money, where it keeps its collaterals, and sells them long absolutely to the donees. No intention is here when not redeemed, is a “shop.' Boston Loun Co. | expressed to hold any legal tille to the bonds in trust for v. City of Boston, 137 Mass. 332.
the donees. Whatever interest was intended to bo vested in them was transferred to them directly, sub
ject to the reservation in favor of the donor during DELIVERY NOT A L IVAY'S ESSENTIAL TO 1
his life and free from that reservation at his death.
Nothing was reserved to the donor to be held in trust GIFT. .
or otherwise, except his right to the accruing interest I.
which should become payable during his life. It could only be by reforming or supplementing the language
used that a trust could be created, and this, as has requisite to the validity of a gift has been some been shown, will not be done in case of a voluntary what modified by more recent decisions. In numer settlement without consideration." ous instances the courts have supported as declara The case of Pope v. Savings Bank, supra, is to the tions in trust transactions that were clearly insulli same effect. Plaintiff's testator, S. Barlow, deposited cient to constitute a gift in the legal acceptance of tho money in the defendant's Savings Bank. He directed word; and have adjudged that such transactions di the treasurer to enter the name Marion Cushing (the vest the owner and donor of all beneficial interest in name of the claimant) on the bank register as the perthe subject-matter of the trust, and transfer the whole son in whose name the doposit was made, and also to title in equity to the donee, who becomes as much the enter thereon, “Payable to S. Barlow." Subsequently owner of the property as he would have been had there ho directed the treasurer to add to tbe entry the folbeen a delivery.
lowing: “During his life and after his death to MarIt is important at tho outset to state a distinction ion Cusbing,” making the entry, as so altered, read as that is made by all the authorities. There can be no follows: “Payable to S. Barlow during his life and valid declaration in trust unless the party intended to after his death to Marion Cushing.” The Supreme create a trust. It is not sufficient that the trans ('ourt of Vermont hold that no valid declaration of action constitutes in tho abstract a good declaration trust was created because there was no intention to of trust. The donor must have willed and determined create a trust, the court saying: “If the intention is to establish a trust. Where his intention is to make a to make such a transfer as would constitute a gift, but gift, and the court cannot spell out from the transac the transaction is imperfect for this purpose, the court tion a design on his part to create a trust, no valid will not hold the intended transfer to operate as a dectrust is in fact created, even though the transaction laration of trust, ‘for then every imperfect instruwould have constituted a good trust, had such been ment would be made effectual by being converted into the intention of the donor. Young v. Young, 80 N. a perfect trust.'"
THEcomme toliwe Falso requiring delivery as a pre
Tho English cases of Richardson V. Richardson, L. cumstances of particular cases the donor has done or R., 3 Eq. 686, and Morgan v. Malleson, L. R., 10 Eq. said enough actually to create a trust, or whether his 475, wbich seem to announce a doctrine in conflict words or conduct merely evince a desire or intention with that established by the authorities cited, have to establish a trust in future. No definite, precise beeu virtually overruled both in England and in this rule can be laid down by which to settle this question country.
in all cases. But several doctrines, which relate to In Richards v. Delbridge, L. R., 18 Eq. 11, Sir George this branch of the subject, have been authoritatively Jessel, M. R.,says, regarding these cases: “If tho de established, and they will be now considered. cisions of Lord Romilly in Morgan v. Malleson, and of In the first place it is settled that not only is it not Wood, V. C., in Richardson v. Richardson were right, necessary that there should be a delivery of the propthere never could be a case where the expression of a erty to the beneficiary, but it is not necessary even present gift would not amount to an effectual declara for the donor to part with the possession of the proption of trust."
orty. He may create a valid trust and yet retain conIn Young v. l'oung, supra, the Court of Appeals, trol of the property. This control however must not after referring to them, saly : “Both of the cases cited be the control of an absolute owner. Ile must direst are now placed among overruled cases. Fisher's Am. himself of all ownership of the property, so far as the Dig. 1873 and 1874, 24, 25. And in Pope v. Surings trust is to affect it, and constitute hiniself the possesBank, the court say: “Two English cases not cited sor and holder of it as trustee for the beneficiary. Jsarby the claimant, but tending to support her claim of a tin v. Fundi, 15 N. Y. 134; Pope v. Savings Bank, supru; trust, viz., Richardson v. Richardson, L. R., 3 Eq. 686, Minor v. Rogers, 40 ('omn. 512; Ray v. Simmons, 11 and Morgan v. Malleson, L. R., 10 Eq. 475, have been R. I. 266; Vilroy v. Loril, 4 De Gex F. & J. 264. repeatedly criticised in this country and England, and In Martin v. Funk the court said: “The contention are regarded as contrary to the doctrine settled by the of the defendant is that the transaction did not transweight of authority and virtually overruled.” One fer the property, and that by retaining the pass-book further quotation from the case of young v. Young the intestate never parted with the control of the
this point is important. "If the settle property. If what she did was sufficient to constitute meut is intended to be effectuated by gift, herself a trustee it must follow that whatever control the court will not give effect to it by
she retained would be exercised as trustee, and the struing it' as a trust. If it is intended to take right to exercise it would not be necessarily inconsisteffect by transfer the court will not hold the intended ent with the completeness of the trust." transfer to operate as a declaration of trust, for then The donor may constitute himself trustee, and the every imperfect instrument would be made effectual trust will bo valid and binding upon him. This was by being converted into a perfect trust." The distinc held in the cases just cited and also in loungv. Young, tion is clearly expressed by Lord (rau worth in Jones 80 N. 1. 438. Burkov. Frye, 75 Me. 29; Jillspangh r. v. Lock, L. R., 1 (h. App. 25. “ The cases all turn Putnam, 16 Abb. Pr. 380. It is not necessary that tho upon the question whether what has been said was a trust should bo created by a written instrument. A declaration of trust or an imperfect gift."
parol declaratiou will suflice. Nilroy v. Lord, supru; The case of Burker v. Frye, 75 Mo. 29, is an extreme Pope v. Savings Bunk, supiral. decision, and cannot well be sustained in view of the authorities already referred to. The depositor, whose as the opinion of the court" that if the property be acts and statements were held by the court to be sufli personal, tho trust may be declared either in writing cient to constitute a valid trust, informed the treas or by parol.” And in Pope v. Savings Bund, the court urer of the bank in which the deposit was made that declared that “a perfect or completed trust is created she wished to make a deposit for each of four grand where the donor makes an unequivocal declaration children. She took pass-books in their names, but either in writing or by parol that he himself holds the subject to her own order during her life-time. There property in trust for purposes named.” No particuwas certainly nothing in the language used to indicate lar language need be employed in creating a trust. that the depositor intended to create a trust. It is Any statement or expression that clearly evinces an difficult to see how it can be claimed that her acts in intention on the part of the owner of the property to dicated such a design on her part. The only meaning create at that time a trust for any person will impress that can be fairly deduced from the transaction is that the property in the hands of such owner with a trust the depositor intended to give her grandchildren cer in faror of the designated beneficiary. Jartin v. Funk, tain sums of money at her death, provided she did not supri; Pope v. Sarin Bunk, supra; l'oung v. Young, change her mind before that time. But tho decision supra. would have been none the less unsound, even though In Martin v. Funk the court said: “No particular it had been manifest that the depositor intended to form of words is necessary to constitute a trust, while create a trust. None was in fact created. This briugs th“ üct or words relied upon must be unequivocal, imus to another important rule; that the mere design to plyin' that the person holds the property as trustee establish a trust is not sufficient but that the trust for another." Substantially the same doctrine is must be actually consummate. Martin v. Funk, 75 stated in Poprv. Suvings Bank." Ile need not in exN. Y. 1:31; Pope v. Surings Bank, supra. In the first press terms declare himself trustee, but he must do case the court said: “Tho act constituting the trans- something equivalent to it and use expressions which fer must be consummated and not remain incomplete have that meaning." These cases and all the authorior rest in mere intention; and this is the rule whether ties on the subject enunciate the rule that the intenthe gift is by delivery only or by the creation of a tion to create a trust must be clearly and unequivotrust in a third person or in creating the donor himself calls expressed. If the court, after construing the a trustee.” And in Pope v. Sarings Bank the court language and acts of the party in the light of surrounddeclared "that a voluntary trust which is still execu ing circumstances, is in doubt as to the meaning of tory, incomplete, imperfect or promissory, will neither the transaction, it will refuse to sustain the ralidity of be enforced nor aided." The reason for this rule is the attempted gift as a trust. A deposit of money by obvious. Until the trust is actually executeil, no title the owner in his own name in trust for another has can rest in the beneficiary; and equity will give him repeatedly been held to create a ralid trust in the abno remedy because it will never enforce a voluntary sence of any explanation of the transaction. Martin promise not founded on consideration. It will some r. Funk, supra; Boone v. Sarings Bunki, sit Y. Y. 83 ; times be difficult to determine whether under the cir Willis v. Smyth, 91 id. 297; Jabir v. Buile.!/, 95 id. 206;
nel en Miramu. Lora, Chiel Justice Turner expressed it