Grantor, Beneficiary, and Trustee the three parties in a trust
Trust=Treaty relationship
Trust relationships Public=Trust, express=Trust, admin trust relationships.
Trust is center of core.
Moving titles platform riding on.
Create a title, claim a title, move a title.
DEFINITIONS
Acknowledgement of debt- Recognition by a debtor of the existence of a debt. An acknowledgement of debt interrupts the running of prescription.
Agent-One who is authorized to act for in place of another.
Allonge- a slip of paper sometimes attached to a negotiable instrument for the purpose or receiving further indorsements when the original paper is filled with indorsements.
Capitalization- The act of process of capitalizing or converting something into capital.
Capital- Money or assets invested, or available for investment, in a business. The total assets of a business, esp. those that help generate profit. The total amount or value of a corporation’s stock; corporate equity.
Capitis deminutio- A diminution or alteration of a person’s legal status.
Capitis is the destruction of the ‘capul’ or legal personality. Capitis deminutio, so to speak, wipes out the former individual and puts a new one in his place, and between the old and new individual there is, legally speaking, nothing in common. A juristic personality may be thus destroyed in one of these three ways: 1. By loss of the status libertaties. This is the capitis deminutio maxima; 2. By loss of the status civitatis. This is the capitis deminutio media (magna); 3. By severance from the agnatic family. This entails capitis deminutio minima. “Rudolph Sohm, The Institutes: A text book of the History and System of Roman Private Law 178-179 (James Crawford Ledie trans, 2d ed. 1907).
Certificate of Deposit- Certificates of deposit (CDs) are instruments issued by the bank specifying that a certain sum of money has been deposited. These certificates may be either negotiable or nonnegotiable. When nonnegotiable, the bank simply contracts to return the amount to the depositor plus any contracted for interest. If the certificate is negotiable, the bank agrees to pay the depositor or any person whom the depositor shall order, or the bearer of the certificate. When the CD is a negotiable CD, the debt of the bank is to the legal holder of the certificate and not to the original depositor. (Bank officers handbook) Note: Negotiable is Public and nonnegotiable is private.
Corpus- The property for which a trustee is responsible; the trust principal; Also termed res; trust estate; trust fund; trust property; trust res trust.
Commingling- A mixing together; esp., a fiduciary’s mixing of personal funds with those of a beneficiary or client. Commingling is usu. considered a breach of fiduciary relationship. Under the model rules of Professional conduct, a lawyer is prohibited from commingling personal funds with those of a client.
Declaration- A formal statement, proclamation, or announcement, esp. one embodied in an instrument.
Deposit- The act of giving money or other property to another who promises to preserve it or to use it and return it in kind; esp., the act of placing money in a bank for safety and convenience.
Embezzlement-The fraudulent taking of personal property with which one has been entrusted, esp as a fiduciaries.
In kind- In goods or services rather than money
Legal Fiction-Assumption of fact made by court as basis for deciding a legal question. A situation contrived by the law to permit a count to dispose of a matter, through it need not be created improperly e.g. fiction of lost grant as basis for title adverse possession. “Legal fiction is the mask that progress must wear to pass the faithful but bleary eyed watchers of our ancient legal treasures. But though legal fictions are useful in thus mitigating or absorbing the shock of innovation, they work havoc in the form of intellectual confusion.” MORRIS R. COHEN, Law and Social Order 126 (1933). Example: STRAWMAN ACCOUNT.
Legal Entity- A body, other than a natural person, that can function legally, sue or be sued, and make decisions through agents.
Power of Appointment-A power created or reserved by a person having property subject to disposition, enabling the donee of the power to designate transferees of the property or shares in which it will be received;
Prescription- The act of establishing authoritative rules. A rule so established. The effects of the lapse of time in creating and destroying rights.
Privity of contract- That connection or relationship which exists between two or more contracting parties. Also allowing them to sue each other but preventing a third party from doing so.
Scienter- A degree of knowledge that makes a person legally responsible for the consequences of his or her act or omission.
Segregation- The act or process of separating.
Special Deposits- Special deposits may take a number of forms. Sometimes they are a means of holding funds in litigation, trust funds, and cash securities of various types, such as deposits to show good faith in the case of contracts and the like. Attorneys maintain such accounts to hold funds of clients for whom they are fiduciaries. Special deposits are created by special contracts between the bank and the depositor. In most instances of special deposits for the benefit of a third person, the bank becomes a trustee of the deposit for the benefit of the named person. Special deposits are often payable upon demand, sometimes upon terms, and occasionally they bear small amounts of interest. In many instances, such accounts are evidenced by certificates of deposit. (Bank officer’s handbook) Note: Important, express trust as a special deposit, and order to disperse the funds.
State secret- A governmental matter that would be a threat to national defense or diplomatic interests of the United States if revealed; information possessed by the government and of a military or diplomatic nature, the disclosure of which would be contrary to the public interest.
Trust receipt- A pre-UCC security device now governed by Article 9 of the Code consisting of a receipt stating that the whole buyer has possession of the goods for the benefit of the financier. Today there must usually. be a security agreement coupled with a filed financing statement.
Trust res (corpus) - The property for which a trustee is responsible; the trust principal.
Usufruct- A right to use and enjoy the fruits of another’s property for a period without damaging or diminishing it, although the property might naturally deteriorate over time.
Unclean hands doctrine- The principle that a party cannot seek equitable relief or assert an equitable defense if that party has violated an equitable principle, such as good faith. Such a party has unclean hands.
Privities of Estate-Mutual or successive relation to the same right in property such as that which exists between, Lessor (Landlord) and lessee (Tenant) and their successors. Grantor/Grantee.
Common law vanished in the public not the private.
Trusts fit into one of these classifications.
Two kinds of Trusts
• Express Trust- Trusts which are created by the direct and positive acts of the parties by some writing, or deed, or will, or oral, or by words expressly or impliedly evincing an intention to create a trust.
• Implied Trust- A trust raised or created by implication of law; a trust implied or presumed from circumstances. Constructive and resulting trusts are implied trusts because they arise by implication of law or by demands of equity.
Trusts operate in equity.
Equity- Is a body of jurisprudence, or field of jurisdiction, differing in its origin, theory, and methods from common law; though procedurally, in the federal courts and most state courts, equitable and legal rights and remedies are administered in the same court.
Trust Receipt-A pre-UCC security device- now governed by Article 9 of the code- consisting of a receipt stating that the wholesale buyer has possession of the goods for the benefit of the financier. Today there must usually be a security agreement coupled with a filed financing statement.
Trust-The right enforcement solely in equity, to the beneficial enjoyment of property to which another person holds the legal title; a property interest held by one person (the trustee) at the request of another(settler) for the benefit of a third party(beneficiary).
The three clicks of the heels of the shoes are the: Right, Title, and Interest.
Right-That which is proper under law, morality, or ethics. Something that is due to a person by just claim, legal guarantee, or moral principle. A power privilege or immunity secured to a person by law. A legally enforceable claim that another will do or will not do, a given act; a recognized and protected interest the violation of which is wrong. The interest claim or ownership that one has in tangible or intangible property.
• Tangible- Having or possessing physical form. Capable of being touched and seen; perceptible to the touch; tactile; palpable; capable of being possessed or realized.
• Intangible Property- As used chiefly in the law of taxation this term means such property as has no intrinsic and marketable value, but merely the representative or evidence of value, such as certificates of stocks, bonds, promissory notes, copyrights, and franchises.
• Intellectual Property- A category of intangible rights protecting commercially valuable products of the human intellect. The category comprises primarily trademark, copyright, and patents rights, but also includes trade-secrets rights, publicity rights, moral rights, and rights against unfair competition. “While there is a close relationship between intangible property and the tangible objects in which they are embodied, intellectual property rights are distinct and separate from property rights in tangible goods. For example, when a person posts a letter to someone, the personal property in the ink and parchment is transferred to the recipient… [T]he sender (as author) retains intellectual property rights in the letter,” Intellectual property Law
Title-The union of all elements (as ownership, possession, and custody) constituting the legal right to control and dispose of property, the legal link between a person who owns property and the property itself.
Interest- Advantage or profit, esp. of a financial nature. A legal share in something; all or part of a legal or equitable claim to or right in property. Right, title and interest.
Express Trust-A trust created with the settler express intent, usu. Declared in writing; an ordinary trust as opposed to a resulting trust or a constructive trust.
Implied Trust-A trust raised or created by implication of law; a trust implied or presumed from circumstance.
First need to express the trust. Example social security trust aka straw man.
We did not express the trust at 18 yrs. Waived all rights to trust.
Law of trust, trust law. He who claims trust must prove trust
Elements to a Trust
• Parties- grantors, trustee, beneficiary.
• Parties- One who takes part in a transaction, a party to the trust.
• Express- res of property.
• Express- Clearly and unmistakably communicated; directly stated.
• Intent-grantor
• Intent- The state of mind accompanying an act, esp. a forbidden act.
• Purpose-grantor
• Purpose-That which one sets before him to accomplish or attain; an end, intention, or aim, object, plan, project.
Again Elements of Trust.
• Intent. The state of mind accompanying an act, esp. a forbidden act.
• Purpose. A objective, goal, or end;
• Parties. One who takes part in a transaction, a party to the trust?
• Trust in res. An object, interest, or status, as opposed to a person. The subject matter of a trust.
Formation of a Trust
1. Declaration- A person’s state-of-mind statement that operates as an exception to the hearsay rule. Fed Rules of Evidence. 803(3)
Words- Symbols indicating ideas and subject to contraction and expansion to meet the idea sought to be expressed.
Conduct-Personal behavior, whether by action or inaction; the manner in which a person behaves. Also silence can be conduct.
2. Transfer- Means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor’s equity of redemption. Portal trust term.
a) Assignment-The transfer of rights or property. The rights or property so transferred. The instrument of transfer. A task, job, or appointment. UCC3 section 200’s
b) Endorsement- One which restrains or limits or qualifies or enlarges, the liability of the indorser, in any manner different from what the law generally imparts as his true liability, deducible from the nature of the instrument. Delivery by beneficiary, assignment UCC-3.
c) Operation of law- This term expresses the manner in which rights, and sometimes liabilities, devolve upon a person by the mere application to the particular transaction of the established rules of law, without the act or co-operation of the party himself.
d) Delivery- The act by which the res or substance thereof is placed within the actual or constructive possession or control of another.
3. Contract- An agreement between two or more persons which creates an obligation to do, or, not to do, a particular thing. Form a trust in the future.
4. Appointments- The designation of a person, by the person or persons having authority therefore, to discharge/disposition the duties and property of some office or trust.
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