Definition
A trust is a legal arrangement in which one party (the trustee) holds title to property for the benefit of another (the beneficiary), under an obligation enforceable in equity. The person who creates the trust is variously called the settlor, grantor, or trustor. The property subject to the arrangement is the trust corpus, res, or principal.
The trust is the central vehicle of Anglo-American property planning. Its power lies in the separation it creates: legal title sits with the trustee, equitable title sits with the beneficiary. That split — unrecognized in most civil law systems — gives the trust its flexibility and its analytical complexity.
Three foundational categories:
1. Express Trust. Intentionally created by the settlor, either during life (inter vivos or living trust) or by will (testamentary trust). Requires a competent settlor, a clear intent to create the trust, an identified trustee, ascertainable beneficiaries, and a trust res. A revocable living trust remains fully within the settlor's control during life; an irrevocable trust transfers assets permanently out of the settlor's estate.
2. Resulting Trust. Arises by operation of law when equity infers that beneficial ownership should return to the person who supplied the property. The two classic occasions are: (a) where an express trust fails in whole or in part, and (b) where one person pays the purchase price for property titled in another's name. No formal creation is required — the court finds the trust from circumstances.
3. Constructive Trust. A remedial device, not a true trust. Equity imposes it on a person who holds property under circumstances that make it inequitable for that person to keep it — most often fraud, breach of fiduciary duty, or unjust enrichment. The constructive trustee holds the property solely to transfer it to the rightful owner.
Beyond these three, a sprawling taxonomy of specialized forms exists: charitable trusts, spendthrift trusts, discretionary trusts, support trusts, land trusts, business trusts, asset protection trusts, special needs trusts, honorary trusts, and more. Each has distinct formation rules, tax treatment, and equitable constraints.
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Common Language
Modern common usage (Wiktionary): Plural of trust. In ordinary English, "trusts" most often refers to confidence or reliance placed in a person or thing, or — in an economic context — to large business combinations that dominate a market (as in "antitrust").
Historical common usage (Webster's 1913): Webster's 1913 gives "trust" both its interpersonal meaning (confidence, reliance) and its commercial meaning (a combination of firms or corporations). The legal-property sense appears but is secondary.
The gap matters. When a researcher encounters "trusts" in late-nineteenth or early-twentieth century sources, context is essential: the word may refer to equitable property arrangements, to monopolistic business combinations subject to antitrust regulation, or simply to the ordinary sense of reliance. All three uses appear in the same era's legal literature. Conflating them produces serious research errors.
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Common Confusion
TRUST vs. WILL. Both are estate planning instruments, but a trust (particularly a revocable living trust) operates outside probate, takes effect during life or at death without court supervision, and remains private. A will takes effect only at death, must be probated, and becomes a public record. Many modern plans use both in coordination.
RESULTING TRUST vs. CONSTRUCTIVE TRUST. Both arise by operation of law, not by express creation. A resulting trust reflects the presumed intent of the parties — equity returns property to the one who supplied it. A constructive trust is purely remedial — it is imposed against the intent of the holder to prevent unjust enrichment. Historical sources sometimes blur this line. Older equity treatises occasionally use "resulting trust" in ways that modern courts would classify as constructive.
EXPRESS TRUST vs. AGENCY. Both involve one party acting for another. The key distinction is title: a trustee holds legal title to the property; an agent does not. The trust relationship survives the death of the settlor; most agency relationships do not.
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Core Elements
For an express trust to be valid, courts require what are sometimes called the "three certainties" (a formulation from English equity, adopted widely in American jurisdictions):
Certainty of Intent. The settlor must manifest a present intention to create a trust — not merely a wish, hope, or moral obligation. Precatory words ("I hope," "I request") have historically failed this test, though modern courts look to the totality of the instrument.
Certainty of Subject Matter. The trust property must be identifiable. A trust of an uncertain or unspecified portion of assets may fail unless the uncertainty can be resolved.
Certainty of Beneficiaries (or Charitable Purpose). There must be ascertainable beneficiaries who can enforce the trust, or — for charitable trusts — a defined charitable purpose enforceable by the state attorney general.
In addition, most jurisdictions require that the trust not violate the rule against perpetuities (though many states have now modified or abolished this rule for certain trusts), that it not be created for an illegal purpose, and that the trustee's duties be real and not illusory.
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Recognized Forms
/SUBTYPES
Inter Vivos (Living) Trust. Created and operative during the settlor's life. May be revocable or irrevocable.
Testamentary Trust. Created by will. Takes effect at the testator's death. Subject to probate jurisdiction.
Revocable Trust. Settlor retains power to amend or revoke. Assets remain in the settlor's taxable estate.
Irrevocable Trust. Settlor surrenders control. Properly structured, removes assets from the taxable estate.
Charitable Trust. Established for a public charitable purpose. Enforceable by the attorney general in lieu of private beneficiaries. Exempt from the requirement of ascertainable individual beneficiaries.
Spendthrift Trust. Contains a provision restricting a beneficiary's ability to alienate the beneficial interest and shielding it from the beneficiary's creditors. The extent of protection varies by state.
Discretionary Trust. The trustee holds discretion over distributions. Creditor access to a beneficiary's interest is limited to the extent of that discretion.
Special Needs (Supplemental Needs) Trust. Designed to benefit a person with disabilities without disqualifying them from means-tested public benefits such as Medicaid or SSI.
Resulting Trust. Arises by operation of law from circumstances suggesting the beneficial interest should revert to the transferor.
Constructive Trust. Imposed by equity as a remedy for wrongdoing or unjust enrichment. Not a true trust in the planning sense.
Business Trust (Massachusetts Trust). An unincorporated business organization structured as a trust, with beneficial interests held by certificate holders. Still used in certain investment and real estate contexts.
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Why It Matters in Research
The word "trusts" in historical sources almost never signals a single, stable concept. Researchers working across time periods face several distinct hazards:
Terminology drift. Early equity sources use "use" and "trust" interchangeably, or use "use" where modern law would say "trust." Bouvier's entry — sourced partly from civil law analogues and Latin derivations — illustrates this instability. The Statute of Uses (1535) converted many uses into legal estates, but trusts survived because they were recognized in Chancery as distinct. A researcher reading pre-nineteenth-century materials must track whether "use" has become "trust" in the relevant jurisdiction and era.
The business trust confusion. From roughly 1880 to 1920, "trusts" in legal and popular literature as often refers to industrial combinations — Standard Oil, the sugar trust, the railroad trusts — as to equitable property arrangements. Antitrust law, Sherman Act debates, and regulatory scholarship of this period use the word in this economic sense. Without context, the word is ambiguous.
Resulting and constructive trust instability. Older equity treatises and some historical dictionary entries (including Rapalje & Lawrence's fragmentary entry here) treat resulting trusts as a broad category that absorbed much of what modern law calls constructive trusts. The line was drawn more clearly in twentieth-century case law and the Restatement (Third) of Restitution and Unjust Enrichment. Researchers tracing doctrine backward should expect different taxonomies.
Jurisdictional modernization. The Uniform Trust Code (promulgated 2000, adopted in modified form by more than 35 states) has substantially harmonized the law of express trusts, but state-by-state variations remain significant — particularly regarding spendthrift protections, trust duration, modification and decanting, and the powers of trust protectors. Pre-UTC materials may reflect rules that have been superseded.
Tax law intersection. Trust research in the twentieth century is inseparable from federal income, estate, and gift tax law. The same trust structure may be analyzed differently under the Internal Revenue Code than under state property law. Sources that address trusts without specifying which body of law they apply may produce misleading results.
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Historical Dictionary Support
Bouvier's entry — the fragment provided — arrives at "trusts" through the back door of the word "use," noting the debate over whether "use" derives from Latin usus or Latin opus. This is characteristic of Bouvier's historical depth: the entry situates the trust in its equity origins, acknowledging that the trust emerged as Chancery's response after the Statute of Uses curtailed the old use. The reference to civil law analogues reflects Bouvier's comparative instinct, though the civil law has no true functional equivalent to the common law trust.
Rapalje & Lawrence's fragment references White & Tudor's Leading Cases in Equity — a major secondary source for nineteenth-century American equity practitioners — and begins a discussion of the "completeness" of a "disposition of this kind." The fragment is too truncated to reconstruct the full argument, but the citation suggests the entry addressed whether a trust instrument needed to be complete on its face to be enforceable, a question that touched the three-certainties doctrine. Rapalje & Lawrence generally reflects the consolidation of American equity practice in the post-Civil War period.
Neither historical source adequately addresses resulting trusts as a distinct doctrinal category, business trusts, or any of the modern statutory forms. Both entries reflect a period when equitable trust doctrine was still primarily judge-made and treatise-driven. The Restatement of Trusts (first published 1935) and the later Uniform Trust Code represent developments neither source anticipated.
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Jurisdictional Note
Trust law is state law. While the Uniform Trust Code has achieved broad adoption, significant variations persist in spendthrift protection scope, the permissible duration of trusts (some states have abolished the rule against perpetuities entirely for trust purposes), asset protection trust availability, and the statutory treatment of trust modification and decanting. Offshore and directed trust jurisdictions add further complexity. Federal tax law overlays all of these variations but does not displace them.
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Encyclopedia Cross-Reference
Resulting Trusts: Purchase-Money and Failure-of-Express-Trust Resulting Trusts — The Law Mind Trusts, Estates & Probate Encyclopedia (estates_67)
Special Needs Trusts and Supplemental Needs Trusts — The Law Mind Trusts, Estates & Probate Encyclopedia (estates_93)
Trust Protectors and Dispute Resolution Mechanisms in Trust Instruments — The Law Mind Trusts, Estates & Probate Encyclopedia (estates_109)
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