The trust is established by the declaration in writing signed by the appellant. To this the appellant's only answer is the citation of cases to the effect that the instrument declaring the trust is no part of the will of the testator. Of course not. The trust is created by the declaration and subscription of the trustee, not by the declaration or subscription of the testator.
The will operates to vest the fee in the devisee, as a deed absolute on its face would do. The simultaneousor subsequent declaration of trust by the devisee is no more a part of the will or required to be executed by the testator as a will, than a declaration of trust by a grantee is required to be expressed in the deed by which the fee is carried to him.
If any consideration were needed to sustain the declaration of trust it is found in the manifest reliance by the testator, upon the promise of the devisee. But no consideration is necessary to a declaration of trust in writing signed by the trustee. (Perry on Trusts, Secs. 82 and 96.)
In all the cases cited by the appellant, as in all cases we have found bearing on the question, the discussion assumes, as settled law, the validity of a declaration of trust signed by the party to be charged. And the cases go so far as to charge a party as trustee without his declaration, where he has accepted the trust under circumstances which would make it fraudulent for him to deny the trust. None of the cases or text-books doubt, that where he has signed a declaration, he is chargeable. The Court will find such to be the recognized law in the appellant's own case. (Johnson v. Ball, 5 De Gex and Smale, 85; also in the following: Perry onTrusts, Sec. 94. Russell v. Jackson, 10 Hare's Rep. 204; Briggs v. Penny, 8 Eng. Law and Eq. 232; Strickland v. Aldridge, 9 Vesey, Jr., 517; Tee v. Ferris, 2 Kay and Johnson, 357.)
The mistake of the appellant is in supposing that we are attacking the will, or varying the terms of it. We do not do so. The will has taken effect without disturbance, and has vested the legal title in the devisee. Now, we simply claim to affect him with the trust with which he has charged himself, by his written declaration, sufficient under the Statute of Frauds.
OPINION By the Court:
The letter from the testator, Jean Corneille De Boom, dated on the same day on which the will was executed, and directed to the defendant, Romain De Boom, the sole devisee under the will, explains the trust upon which the testator intended to devise the estate; and we are of opinion that when the defendant, during the life-time of the testator, accepted, in writing, the terms of the trust, and bound himself to execute it faithfully, this created a valid trust, which a Court of equity will enforce. The presumption is, that the testator would have revoked or modified the will, except for the fact that the defendant, by a solemn instrument, accepted the trust, and promised to execute it. It would be a fraud upon the testator and upon cestui que trusts to permit the defendant to repudiate the trust, on the faith of which the estate was devised to him.
Order refusing to dissolve the injunction affirmed.