
    John Safford versus Robert Rantoul, Administrator of Samuel Haskell.
    The equity jurisdiction given to this Court by St. 1817, c. 87, in cases of “trust arising under deeds,” is not confined tó trusts created by deed; it is sufficient if the trust is proved, by a writing of the trustee, to have arisen under a deed.
    Thus, S. gave a bill of sale, absolute on its face, to D., of part of a ship; at a subsequent period, D. gave S. a writing wherein D. acknowledged he received the conveyance as collateral security for a debt; the plaintiff and H. afterwards paid D. a part of the debt by giving him their joint notes, and the residue was paid by the earnings of the ship; D. becoming insolvent, assigned his property for the benefit of his creditors, expressly excepting the part of the ship, stating in the deed of assignment that he held such part as collateral security for the payment of the notes, and on the same day he conveyed such part to H., who in consideration thereof agreed in writing to take up the notes. Upon a bill in equity by the plaintiff against the administrator of H., it was determined that D. held such part in trust to pay the notes, that H. succeeded him in the trust, that the trust fell to the administrator of H., and that the Court, by virtue of the statute of 1817, had equity jurisdiction to compel the administrator to perform the trust.
    Bill in equity. The bill sets forth, that on the 13th of October, 1823, Nathaniel Safford was the owner of one sixth part of the ship Factor ; that he was then indebted to John Dike in the sum of $ 3,000 ; that he then conveyed to Dike the sixth part of the vessel and of her" earnings, as collateral security for the debt; that on the 12th of January, 1826, Dike executed and gave to Nathaniel a writing, wherein he acknowledged he had received the conveyance as collateral security, and promised to relinquish to Nathaniel his interest in the property thus conveyed, upon payment of the debt; that on the 7th of April, 1826, Nathaniel, by his deed of assignment of that date, more formally confirmed the first conveyanee, and conveyed the sixth part' of the vessel and of hei earnings to Dike, to hold the same upon the special trust to apply them to the payment of the debts mentioned in the deed, and, for that purpose, upon the incidental trust to sell the property at his discretion, and having made such application, to pay over the surplus to Nathaniel, — under and by virtue of which promises Dike became trustee under the deed for the purposes mentioned ; that on the same 7th of April, Nathaniel drew his order on Dike, directing him to pay over to Haskell, the defendant’s intestate, the balance that might remain in his., hands belonging to Nathaniel after the final settlement between Nathaniel and Dike, which order Dike accepted ; that under these conveyances Dike took possession of the vessel and employed her in making voyages until the 24th of September, 1827 ; that he then made known to Nathaniel, Haskell and the plaintiff, his purpose of selling the sixth of the vessel, under the trust, for the more speedy payment of his demand, unless a part of the demand should be then paid to him or assumed by the plaintiff and Haskell; that the plaintiff and Haskell were both creditors of Nathaniel, and that to prevent the sale of the vessel, and to induce Dike to continue to employ her, it was, on the 24th of September, 1827, agreed between Nathaniel, Haskell, the plaintiff and Dike, that Haskell and the plaintiff should advance and pay to Dike, on his demand secured as above mentioned, the sum of $ 1700, and that Dike should continue to employ the vessel and hold the same and her earnings, upon trust to apply the same, first to the payment of the residue of his demand against Nathaniel, then to the payment of the $ 1700 advanced by Haskell and the plaintiff, then to the payment of Haskell’s debt against Nathaniel, and then to the payment of the plaintiff’s debt against Nathaniel ; that in pursuance of this agreement the plaintiff and Haskell paid Dike ijp 1700, by giving him two notes, one for $ 500, signed by the plaintiff as principal and Haskell as surety, the other for $ 1200, signed by Haskell as principal and the plaintiff as surety ; on which notes Dike obtained the money by indorsing them to the Exchange Bank; that by virtue of the premises, Dike became the trustee of the plaintiff and Haskell, of the sixth part of the vessel and her earnings, upon the trusts above mentioned, which trusts arose under the deed of Nathaniel; that Dike continued to hold the vessel, and to employ her and receive her earnings upon these trusts, until the 8th of July, 1829 ; that at that time the residue ot his demand was fully paid ; that on that day Dike became insolvent and executed an assignment of his property by deed for the payment of his debts, wherein he expressly excepted the sixth part of the vessel, then at sea, and accruing earnings, from the assignment, reciting that he held the same in trust for the plaintiff and Haskell, as collateral security of demands; that on the same day Dike, without the consent or knowledge of the plaintiff, sold and conveyed the sixth part of the vessel and earnings then accruing to Haskell, without any consideration therefor, with full notice to Haskell of the trust upon which Dike held the property, and Haskell then agreed in writing with Dike and the plaintiff, to hold the property upon the same trust upon which Dike had held it, namely, to pay the debt of $ 1700 ; that by virtue of the premises, Haskell became, under the conveyance from Dike, trustee of the plaintiff, and of the property, in trust to pay that sum of $ 1700 ; that about the 1st of August, 1829, Haskell died, not having paid that sum nor executed his trust; that the plaintiff has been compelled to pay the sum of $ 550 upon one of the notes given as before mentioned, and is legally compellable as surety to pay the sum remaining due on the other, amounting to $600 ; that on the 1st of September, 1829, the defendant was appointed administrator of the estate of Haskell, and on the 5th of October, 1830, filed an account of his administration in the probate office ; that the estate is insolvent, and that the defendant has received and sold the sixth part of the vessel and received the earnings which were accruing at the time of the conveyance to Haskell, which proceeds and earnings amount in all to about the sum of $ 1700 ; that the defendant has inventoried the proceeds and earnings as the estate oi Haskell; that on the 4th of October, 1830, the plaintiff requested the defendant to apply the same to the extinguishment of the notes above mentioned and the reimbursement to the plaintiff of the money which he has been compelled to pay thereon; which the defendant refused to do, and claims to hold the same as general assets of Haskell; that the defendant is the trustee of the plaintiff and of the fund mentioned, upon the foregoing trusts, and in equity and conscience ought to have executed the trust upon the plaintiff’s request. The bill prays for general relief.
    The defendant, in his answer, admits that on October 13, 1823, Nathaniel Safford conveyed one sixth of the Factor to Dike, and he avers that the conveyance was by an absolute bill of sale, but that it was intended by Nathaniel and Dike to be as collateral security to Dike for certain promissory notes ; and that on April 7, 1826, the conveyance was confirmed to Dike, together with all the freight and earnings of one sixth of the ship, as collateral security to Dike for certain promissory notes of Nathaniel for about $2700, with authority to Dike to sell the sixth of the ship, and after indemnifying himself in the premises, to account to Nathaniel for the surplus, if any ; but he denies that the sixth of the ship was conveyed to Dike, or confirmed to him upon trust, and that Dike became trustee, as set forth in the bill; he avers that Dike employed the ship, and that on September 27, 1827, there appears to have been a balance of about $3144 due on account, as stated by Dike ; and he denies that Dike at that'time made known to Nathaniel his intention to sell the sixth of the ship, unless a part of his debt should then be paid to him or assumed by John Safford and Haskell; and he denies that John was the attorney to Nathaniel authorized to act in the premises ; he does not admit that John was a creditor of Nathaniel, and he believes that Haskell was then a creditor of Nathaniel to the amount of about $ 1000, and that Haskell held an order, dated April 7, 1826, drawn by Nathaniel on Dike, and accepted by Dike, payable to Haskell, for any balance that might be in Dike’s hands on settlement, as security for Haskell’s debt; he denies that an agreement was made between Dike, Nathaniel, John and Haskell in the manner and for the purposes and upon the trusts on the part of Dike, set _orth in the bill ; he admits that John and Haskell, on September 24, 1829, furnished Dike with $1700, by a discount of thé two notes at the Exchange Bank, but he denies that the same was furnished under and in pursuance of the agreement as set forth m the bill, and he denies that Dike then became and was the trustee of John and Haskell, of the ship and earnings, upon trusts arising under the deed of Nathaniel to Dike ; he denies that Dike, in his assignment of July 8, 1829, excepted the sixth of the vessel and her earnings, as is averred in the bill, and he says that at the time when the sum of $ 1700 was furnished, Dike gave Haskell a receipt as follows : — “ Received of Samuel Haskell his note for $ 1200, payable in one year with interest, on account of one sixth part of the ship Factor and her earnings for the present voyage, and the same being part of the balance due me from the former owner of the one sixth part of said ship, as appears by account rendered August 15th, 1827, and the balance then being $ 3144-35, on demand ; ” and that Dike gave John Safford a similar receipt for his note of $ 500 ; he admits that on July 8, 1829, Dike’s debt against Nathaniel was nearly or quite satisfied, but he denies that he then became trustee of Haskell and the plaintiff, of the sixth part of the ship and earnings ; he admits that Dike, on July 8, 1829, conveyed the same to Haskell, but without notice of any trust, and he says that at the same time Haskell gave to Benjamin Merrill and Robert Manning, then the assignees of the property of Dike for the benefit of Dike’s creditors, a receipt and promise as follows : — “ In consideration that Benjamin Merrill and Robert Manning have caused John Dike to convey to me one sixth part of the ship Factor, I agree to account with and pay over to them, any balance of accounts that may on full settlement of all demands, appear tebe due from me, and I further promise to pay and take up two notes of hand, now held by the Exchange Bank, one made by said Haskell, and the other by John Safford, both amounting to seventeen hundred dollars principal; ” and that Haskell, on the same day, gave to John a writing as follows : — “ I hereby certify that the note of this date, signed by John Safford and myself, for five hundred dollars, in favor of the Exchange Bank, is for account of one sixth part of the ship Factor, and her earnings the present voyage, and said note is to be paid by me, whenever I realize that amount from the effects of said ship and her earnings ; ” he denies that the conveyance of one sixth part of the ship and her earnings to Haskell, was made upon an agreement in writing to hold the same in trust for John Safford, and that Haskell became a trustee for the plaintiff, of that property ; he admits that Haskell died, that he, the defendant, was appointed administrator on Haskell’s estate, and that the estate has been represented insolvent; he admits that he has received the proceeds of the sale of the sixth part of the ship and her earnings, amounting in all 'o the sum of $ 1670, and says that he has credited the same in his account of administration, which was settled in the probate court in November 1830 ; he admits that on October 4, 1830, John Safford requested him to apply those proceeds in the manner as is alleged in the bill, and that he refused so to do, because he considered the same as general assets of Haskell’s estate, and because the same was less than what was due from Nathaniel to Haskell; and he further says, that John exhibited a claim on the notes at the Exchange Bank, to the commissioners on Haskell’s estate, viz., one note unpaid, on which Haskell was principal and John surety, for $ 600, and a claim for $ 534-75 for the money paid to the Exchange Bank on the other note ; and he says that the claims were allowed by the commissioners, and that he has paid a proportional dividend on the same by order of the judge of probate, amounting to $ 462-41 ; and he denies that he is trustee of the plaintiff and of the proceeds above mentioned.
    The plaintiff produced the depositions of Dike and Nathan iel Safford, supporting the allegations in the bill. The deeds and writings referred to in the bill and answer were likewise exhibited.
    The writing of January 12, 1826, signed by Dike, was as follows :— “Received of Nathaniel Safford a bill of sale of one sixth part of the ship Factor as security for a note indorsed by me for twelve hundred dollars, and two notes of this date for fifteen hundred dollars. On the three notes being paid I agree to relinquish the said one sixth of the said ship.”
    By the indenture of assignment made on July 6, 1829, Dike conveys to Merrill and Manning, for the benefit of his creditors, his interest in the ship Factor and her earnings, which is recited to be one fourth part, “ it being understood that the said Dike does not hereby intend to convey, but excepts one sixth part of the ship Factor which said Dike holds as collateral security for the payment by John Safford and Samuel Haskell of a certain sum of money due to said Dike from them.”
    
      Choate for the plaintiff.
    The property conveyed by Nathaniel Safford was held by Dike upon a trust arising under a deed, for the payment of the debt due to Dike, and Nathaniel might have compelled performance of such trust. Ward v Lewis, 4 Pick. 518 ; Moses v. Murgatroyd, 1 Johns. Ch. R. 119.
    After the plaintiff and Haskell advanced 1700 dollars to Dike, he held the property in trust for their benefit, under the original deed. No new trust was created, but new cestuis que trust were brought into the case, for a part of the same debt. Cook v. Duckenjield, 2 Atk. 565. And their interest in the debt may be proved by parol. 4 Pick. 518 ; 1 Johns. Ch. R. 119.
    To give this Court jurisdiction in equity, under St. 181"., c. 87, in cases of “ trust arising under deeds,” it is not necessary that the trust should be created by the deed; it is sufficient if it is shown by evidence in writing under the hand of the person enabled to declare the trust, to have arisen under the deed. Steere v. Steere, 5 Johns. Ch. R. 12 ; Forster v. Hale, 3 Ves. 696 ; Morvan v. Hays, 1 Johns. Ch. R. 342 ; Welford v. Beazely, 3 Atk. 503.
    The deed of July 6, 1829, contains an express declaration by Dike, that he held the property in trust for the payment of the debt in question ; and it shows that the plaintiff and Haskell were interested in the fund ; and though not parties to this deed, they might under it compel Dike to perform the trust. 4 Pick. 518.
    The fund having beeu transferred to Haskell with notice of the trust, and without any new consideration, Haskell became the trustee for himself and the plaintiff, for the payment of this debt; and if Haskell was trustee, his administrator must be. Manning v. Fifth Parish in Gloucester, 6 Pick. 18 ; Adair v. Shaw, 1 Sch. & Lefr. 262 ; Murray v. Ballou, 1 Johns. Ch. Rep. 566 ; Shepherd v. MlEvers, 4 Johns. Ch. Rep. 136.
    If this was not a trust in Haskell under a deed, and could not have been enforced against him, it is nevertheless a trust arising in the settlement of his estate, and may be enforced against the administrator. St. 1817, c. 87; Moses v. Murgatroyd, 1 Johns. Ch. Rep. 119; Kip v. Bank of New York, 10 Johns. R. 63; Given v. Simpson, 5 Greenl. 303; Gibbens v. Peeler, 8 Pick. 254.
    
      
      Nov. 9th.
    
    
      
      Saltonstall for the defendant.
    It is doubtful whether there was a trust in Dike, the conveyance to him being absolute on the face of it and apparently for a sufficient consideration. After holding the property three years, he gives a receipt stating that it was assigned to him as collateral security ; and the trust, if any, was to account to Nathaniel Safford for the surplus. In September 1827, the first contract was rescinded, and a new one was made creating a trust by parol merely.. There is nothing in writing to connect this trust with the assignment by deed, and to transfer the surplus from Nathaniel Safford to Haskell and the plaintiff. If a trust was not created by the assignment from Dike to Haskell, connected with Haskell’s receipt, there was no trust; and we contend that that receipt was a mere personal promise on the part of Haskell, to take up the notes. Gallop v. Newman, 7 Pick. 282. At most, the trust of Haskell did not extend beyond the note for $ 500.
    
      Nov. 21 st.
    
   Putnam J.

delivered the opinion of the Court. It is contended on the part of the respondent, that the plaintiff does not prove any trust under the statute of 1817, c. 87, because the deeds relied upon are absolute, and the evidence offered is not competent to prove a trust under those deeds, and so the Court has no jurisdiction of the case. But the statute does not require the trust to be created in and by the deed itself. The Court are to hear and determine in equity “ all cases of, trust arising under deeds, wills or in the settlement of estates.” The construction which has been given to the statute of frauds, commonly so called, (29 Car. 2, c. 3, § 7,) will aid in the construction of the statute of 1817, c. 87, giving remedies in equity. By the former statute and section, “ all declarations or creations of trust or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing signed by the oarty who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect.” That section was adopted in the same words by Prov. St. 4 W. M., c. 3, and re-enacted by St. 1783, c. 37, § 3, in the following words — “ that all grants and assignments, as well as all declarations or creations of trusts or confidences of any lands, tenements or hereditaments, snail be manifested and proved by some writing signed by the party who is by law enabled to grant, assign, or to declare such trust, or by his last will in writing, or else the same shall be utterly void and of no effect: ” which is like the 7th section of 29 Car. 2, adding the words grants and assignments as well as before the words declarations fyc. of trusts, but substantially adopting the clause in the English statute.

We think that the evidence which would legally prove a declaration or creation of a trust under the statute of frauds before cited, would be competent to prove a trust arising under a deed, &c. described in the statute of 1817 before cited, giving remedies in equity. And we have an adjudication upon the point as to the statute of frauds, in the case of Barrell v. Joy, 16 Mass. R. 221. It is there held, that although a conveyance of real estate be absolute and unqualified, “ any declaration in writing made by the grantee or assignee, at any time after the conveyance, is competent proof that the property was to be holden in trust according to the terms of such declaration, within a fair and liberal construction of the statute of frauds.” And the Court adjudged that a pamphlet published by the defendant after the conveyance to him, contained sufficient evidence of an acknowledgment on his part, that the estate which had been conveyed to him in absolute terms, was nevertheless to be held in trust for the purposes set forth in the pamphlet. And that opinion is well warranted by the English cases cited by the counsel for the plaintiff, namely, Ambrose v. Ambrose, 1 P. Wms. 321, and Forster v. Hale, 3 Ves. jun. 696. “ It is not required (said the master of the rolls, in an elaborate opinion) that a trust should be created by writing. The statute does not by any means require that all trusts shall be created only by writing, but that they shall be manifested and proved by writing; plainly meaning, that there should be evidence in writing, proving that there was such a trust.” And the court held accordingly, that a grant, of a lease for a term of years to J. B. and three others, was to be held as to one fourth of the premises by J. B. in trust for himself and the plaintiffs. And that trust was proved by the letters of J. B. written after the grant. The decree was confirmed by the chancellor, in 5 Ves. jun. 315, who said that he perfectly agreed with the master of the rolls in adopting the letter of J. B. as a clear declaration of trust. “ When I say that (said he) I mean, clear evidence in writing, that there was a trust. It is not necessary that it should be a declaration ; but a writing signed by the party, may be evidence of a trust admitted in that writing, signed by him.”

Movan v. Hays, 1 Johns. Ch. Rep. 342 : <c It is sufficient to show, by written evidence under the party’s hand, the existence of the trust.” We think that when it should be so clearly proved, the evidence would be as competent and satisfactory as would be the confession of the respondent in his answer, of the matters charged in the bill.

The statute of 1817 gives the Court authority to try cases of trusts arising under a deed : it is not confined to trusts created by the deed, but the trust may be proved by other writings which refer to the deed. The reference and the proof must be clear, or the absolute terms contained in the deed must take effect.

We proceed to examine the case at bar according to this rule.

The bill of sale from Nathaniel Safford to John Dike, of one sixth of the ship Factor, was given on the 13th of Octo her 1823, and was absolute upon its face. But Dike after-wards, on the 12th of January 1826, gave the following receipt or writing under his own hand. Received of Nathaniel Safford a bill of sale of one sixth part of the ship Factor, as security for a note indorsed by me for twelve hundred dollars, and two notes of this date for fifteen hundred dollars. On the three notes being paid I agree to relinquish the said one sixth of the said ship.” It is clear that Dike then held the one sixth part of the ship in trust to apply the proceeds to the payment of the notes and the surplus for the use of Nathaniel, and that this trust arose under the deed or hill of sain of the 13th of October 1823. On the 7th of April 1826, Nathaniel, for value received, drew his order on Dike to pay-over to Haskell the balance which should remain over and above the amount due from Nathaniel to Dike, which order was accepted. It is proved that Dike remained in possession of the sixth part of the Factor, and employed the same until the 24th of September 1827, when the plaintiff and Haskell paid to Dike $ 1700 on account of the debt due from Nathaniel to Dike, by giving two notes to him, viz., one for $ 500, whereon the plaintiff was principal and Haskell was surety, the other for $ 1200, whereon Haskell was principal and the plaintiff was surety ; which notes were discounted at the Exchange Bank. The receipt of those notes by Dike appears by two writings under his hand, bearing date the 24th of September 1827. The residue of Nathaniel’s debt to Dike was received by him by the earnings of the vessel. Dike failed and assigned his property to Merrill and Manning on the 6th of July 1829, excepting the sixth part of the Factor, and stated under his hand and seal, that he held that part of the Factor as collateral security for the payment of the notes due to him from the plaintiff and Haskell. And on the same day Dike conveyed the same to Haskell, and Haskell then signed a writing of the following tenor. “ In consideration that Benjamin Merrill and Robert Manning have caused John Dike to convey to me one sixth part of the ship Factor, I agree to account with and pay over to them any balance of accounts that may on full settlement of all demands, appear to be due from me. And I further agree to take up the two notes of hand now held by the Exchange bank, one made by said Haskell, and the other by John Safford, both amounting to seventeen hundred dollars principal. On the 8th of July 1829, Haskell signed a paper of the following tenor, referring to the note which the plaintiff had signed as principal, and also to the sixth of the Factor. “ I hereby certify, that the note of this date, signed by John Safford and myself, for five hundred dollars, in favor of the Exchange Bank, is for account of one sixth part of the ship factor and her earnings the present voyage, and said note is to be paid by me whenever I realize that amount from the effects of sat'd ship and her earnings.” It is clear, therefore, that Haskell succeeded Dike in the trust, ami held the one sixth of the Factor as collat .ral security for the payment of the notes, which amounted to $ 1700, and was to account for the surplus to the assignees.

And Haskell having deceased, the trust has fallen upon the respondent, the administrator of the estate of Haskell, to apply the proceeds of the one sixth of the Factor accoiving u the trusts upon which the intestate held the same. 1

Whereupon the Court here orders and decrees that the same shall be applied accordingly. 
      
       By Rev. Stat. c. 81, § 8, the equity jurisdiction of this Court is extended to 66 all suits and proceedings for enforcing and regulating the execution of trusts, whether the trusts relate to real or personal estate; ” and to implied as well as express trusts. Wright v. Dame, 22 Pick. 55. See Bryant v. Russell, 23 Pick. 508; Hobart v. Andrews, 21 Pick. 526; Conant v. Kendall, 21 Pick. 36; Law v. Thorndike, 20 Pick. 317; Holland v. Cruft, 20 Pick. 320; Dimmock v Bixby, 20 Pick. 368; First Cong. Society in Raynham v. Trustees &c. in Raynham, 19 Pick. 492; Ayer v. Ayer, 16 Pick. 327; Campbell v Sheldon, 13 Pick. 8.
     