Shirley v. Lambert

Since the revised statutes went into operation, no trust can be created but those which are thereby authorized—all other trusts are abolished. The trust under the will of Moses Coddington, the complainant’s father, made in the year one thousand eight hundred and thirty-two, is not, in terms, a trust for any of the purposes enumerated in the statute ; and, under the circumstances disclosed in the answer, this court ought not to undertake to convert the husband into a trustee for the wife and consider the household furniture, which may have been bought with the rents of the real estate devised to the wife as trust property, exempt from his debts. So, with respect to the articles of furniture bequeathed to her by the will of Elizabeth Fairclo in one thousand eight hundred and twenty-four and which the complainant is now unable to desig nate, it seems to me too late to undertake to establish a separate property in the complainant and to make her husband a trustee of it. She should have taken measures long ago to se« *338cure the property in the hands of a proper trustee other than the husband. Having suffered him to enjoy the use of it and to hold himself out to the world as ostensibly the owner without notice or any appearance of a trust attached to it and to. acquire credit on the strength of a supposed ownership, she must be considered as waiving her equitable right to regard the furniture as her separate property, especially as she cannot, from the long use and changes which have taken place, undertake' now to identify the articles bequeathed to her as such.

I am of opinion that the injunction must be dissolved. Costs to abide the event.