BOYNTON v. GALE

Trust. Gift. Equity Jurisdiction, To establish trust. In this Commonwealth a mere declaration of trust by a voluntary settlor, which is not communicated to the donee and assented to by him, is not sufficient to perfect a trust, especially where the property is retained by the person making the declaration subject to his own control.

A bill in equity against an administrator to establish a trust alleged that by mistake a legacy was made to the defendant's intestate absolutely which had been intended to be left to him in trust for the plaintiffs, that the intestate learning of the mistake declared that he would hold the legacy in trust for the plaintiffs and so informed the parents of the plaintiffs, who then were of tender years, and promised their parents that he would pay over the trust fund to the plaintiffs when they should come of age, that he afterwards received the legacy and invested it in bonds of the United States and informed the father of the plaintiffs of that fact and that he held the bonds in trust for the plaintiffs. On demurrer it was held, that the bill set forth no trust.

HAMMOND, J.

The legacy to Stephen Madison Gale was absolute and free of trust notwithstanding the wishes of the testator. The language of the will settles that. The property being absolutely his, there was no trust unless created by him as a voluntary settlor. The bill alleges upon this point in substance that after the death of the testatrix the legatee, upon being informed of her intention at the time of the execution of the will as to the legacy, declared that he would hold the legacy in trust for the plaintiffs and informed the parents of the plaintiffs who were then of tender age, and promised the parents that he would pay over the trust fund to the plaintiffs when they should become of age; that he afterward received the legacy and invested it in bonds of the United States and informed the plaintiffs' father of the fact and that he held the same upon the aforesaid trust. This was not enough. As before stated, he was a voluntary settlor. He never parted with the bonds, but always held them in his own possession, subject to his own disposal. There was no delivery to a third person, nor was there any notice to the plaintiffs. Whatever may be the doctrine elsewhere, it is settled in this State that a mere declaration of trust by a voluntary settlor, not communicated to the donee and assented to by him, is not sufficient to perfect a trust, especially where the property is retained by him subject to his own control. The notice to the plaintiffs' parents was not notice to the plaintiffs. Welch v. Henshaw, 170 Mass. 409, and cases cited. Sherman v. New Bedford Five Cents Savings Bank, 138 Mass. 581, and cases cited. See also Bailey v. New Bedford Institution for Savings, 192 Mass. 564, and cases cited.

Demurrer sustained; decree affirmed.