
    In the matter of the petition of Conner Follen for conveyance by an infant trustee.
    On an application to the court for an order directing an infant to convey lands alleged to be held in trust, under the act entitled, “ An act to enable infants who are seized or possessed of estates in trust or by way of mortgage to make conveyances of the same.” Nix. Dig. 333. Held, that the court will proceed under the statute only when the trusts are created by express declaration or have been settled by a- decree. But where the existence of a resulting or constructive trust is alleged, however plain the proof may be, the court will not establish its existence in the summary mode pointed out by the statute.
    As against an infant, a resulting trust should not be established, except by decree, in a suit regularly instituted.
    The moneys of the petitioner were entrusted to William King, by whom they were invested in the purchase of real estate. The title was taken in the name of William King, who afterwards died intestate, leaving an infant child his heir at law, in whom the title to the land became vested. The cestui que trust has always been in possession of the land. He now asks an order that the land be conveyed by the infant trustee to the petitioner.
    
      Vanatta, for the petitioner, cites Nix. Dig. 333; 4 Stat. at Large 368; Ex parte Vernon, 2 P. W. 549; Goodwyn v. Lister, 3 P. W. 386; Hill on Trustees 288; 3 Daniels’ Chan. Prac. 2109-10.
   The Chancellor.

The language of the statute is broad enough to comprehend all trusts. It is settled, however, that the statute of 7 Anne ch. 19, of which ours is a copy, applies only to express trusts, and does not extend to constructive or resulting trusts. Goodwyn v. Lister, 3 P. W. 386; King v. Turner, 2 Simons 545.

The same construction has been given to the more recent English statutes of Geo. 3 and 6 Geo. 4. Ex parte Currie, 1 Jac. & W. 622; In the matter of Moody, 1 Tamlyn 4; King v. Turner, 2 Simons 545; Dew v. Clarke, 4 Russ. 511; Hill on Trustees 288; Lewin on Trusts 489.

In Ex parte Vernon, 2 P. W. 548, an order was made, under the statute of Anne, for a conveyance by an infant trustee, the value of the fee simple of the land not being more than the cost of a decree. But the Chancellor said he should for the future leave the cestui que trust to bring his bill, and have a decree against the infant to convey, because these orders for an infant trustee to convey ought to be in the plainest eases, and not in such as are subject to the disputes which trusts without writing may be liable to.

The principle of the cases is, that the court will proceed under the statute only where the trusts are created by express declaration or have been settled by a decree.. But where the existence of a resulting or constructive trust is alleged, however plain the proof may be, the court will not establish its existence in the sxunmary mode pointed out by the statute. Hawkins v. Obeen, 2 Ves. sen. 559; Livingston v. Livingston, 2 Johns. Ch. R. 541.

The statutory proceeding by petition and order a,re obviously designed to carry into effect a declared or established trust. They are not adapted to the adjudication of rights or the establishment of a resulting trust.

This principle is expressly recognized by the trustee act, 11 Geo. 4 and 1 Will. 4, ch. 60. That statute, by its terms, extends to all constructive trusts and trusts arising or resulting by implication of law. But in every such case where the alleged trustee has or claims a beneficial interest adversely to the party seeking a conveyance or transfer, no order shall be made for the execution of a conveyance or transfer by such alleged trustee until after it has been declared by the Court of Chancery, in a suit regularly instituted in such court, that such person is a trustee for the person so seeking a conveyance or transfer. 3 Daniels' Chan. Pr. 2110; Lewin on Trusts 494.

As against an infant, a resulting trust should not be established except by decree in a suit regularly instituted.  