76 Am. Jur. 2d Trusts SummaryAmerican Jurisprudence, Second Edition§ 258. Equitable interest, generally West's Key Number Digest West's Key Number Digest, Trusts 139 to 144 As a general proposition, the creation of a trust divides title to the trust property, placing legal title in the trustee[FN1] and equitable title in the beneficiary.[FN2] Moreover, this equitable estate does not depend upon formal acceptance of the trust by the trustee, and the beneficiary will be protected by an equity court, even though the trustee declines to act.[FN3] Their title is equitable—not legal—in nature, and such title, right, or interest exists by express virtue of the trust itself,[FN4] and consists essentially in a right to performance of the trust.[FN5] When a trust is passive, title passes to the beneficiaries and the trustee merely has a duty to deliver possession to them.[FN6] The settlor's intent is crucial in determining the nature and extent of the beneficiary's interest in the trust.[FN7] The nature and extent of the interest given to trust beneficiaries is to be determined from the whole trust instrument and not from an isolated phrase.[FN8] References[FN1] § 253. - [FN2] City of Palm Springs v. Living Desert Reserve, 70 Cal. App. 4th 613, 82 Cal. Rptr. 2d 859 (4th Dist. 1999); Coon v. City and County of Honolulu, 98 Haw. 233, 47 P.3d 348 (2002); Albrecht v. Brais, 324 Ill. App. 3d 188, 257 Ill. Dec. 738, 754 N.E.2d 396 (3d Dist. 2001); Hamilton v. Mercantile Bank of Cedar Rapids, 621 N.W.2d 401 (Iowa 2001); Moore v. Moore, 111 S.W.3d 530 (Mo. Ct. App. S.D. 2003), reh'g and/or transfer denied, (July 22, 2003) and transfer denied, (Aug. 26, 2003); Sorrel v. Sorrel, 1 S.W.3d 867 (Tex. App. CorpusChristi 1999); Swinehart v. Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., 48 S.W.3d865 (Tex. App. Houston 14th Dist. 2001); O'Steen v. Wineberg's Estate, 30 Wash. App. 923, 640 P.2d 28 (Div. 2 1982). - In an active trust, the legal and equitable titles to the trust property do not merge. In re Appalachian Student Housing Corp., 598 S.E.2d 701, 189 Ed. Law Rep. 931 (N.C. Ct. App. 2004), appeal dismissed, 2004 WL 2555414 (N.C. 2004). - As to the fundamental essential of a trust that the legal estate and the equitable estate be separated, see § 33. - As to beneficiaries, generally, see §§ 240 to 246. - [FN3] Avery v. Cleary, 132 U.S. 604, 10 S. Ct. 220, 33 L. Ed. 469 (1890). - As to appointment of a trustee to administer the trust, see § § 217, 238. - [FN4] Maguire v. Trefry, 253 U.S. 12, 40 S. Ct. 417, 64 L. Ed. 739 (1920). - [FN5] State ex rel. Carmichael v. Bibb, 234 Ala. 46, 173 So. 74 (1937). - Generally, as to performance of trust, see §§ 321 to 364. - [FN6] Govern v. Hall, 430 N.W.2d 874 (Minn. Ct. App. 1988). - [FN7] Eckes v. Richland County Social Services, 2001 ND 16, 621 N.W.2d 851 (N.D. 2001).- [FN8] In re Trust by Dumaine, 146 N.H. 679, 781 A.2d 999 (2001). -

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