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A.
ESTABLISHING THE TRUST EXISTENCE
1. "Since the various requirements embodied within statutes of fraud
relative to the creation of trusts are not usually construed as to r
equire execution of a
formal deed of trust, the generally recognized rule is that a trust can be
created, established, or proved by any writing or writings irrespective of
form." Kingsbury v Burnside, 58 1113 10; 76 Am Jur
2d, sec. 46 p. 293. "The writing must naturally indicate the trust with
requisite certainty and manifest an intention to create a trust. Under this
rule, a trust may be created by a will, deed, or other instrument, by an
instrument inoperative for some reason as a will, by two or more related
writings, or by correspondence. The rule applies not only with respect to a trust
in real estate where the statute of frauds, like the original English statute,
merely requires that the trust be manifest and proved in writing., but it is
also followed in many cases where the statute requires that the trust be
created in writing." Chicago, M. & S. P. R. Co. v. Des. Moines U. R.
Co. 254 US 196, 65 L Ed 219, 41 S Ct 8 1; Kingsbury v. Burnside, supra; 76 Am Jur 2d, see. 46 P. 29 ).
a. Accordingly, the trustor, Prophet, Noble Drew Ali, used the writings of The
Moorish Science
1 "If the terms of a trust are collected from several papers, it is not
necessary that all of them be signed. but it is
sufficient if they are so referred to and connected with the paper that is
signed that they may be identified and read as genuine papers and part of the
transaction". Wynekoop v. Wynekoop,
95 N.E. 2d 457, 409 111. 219.
a. All the instrument used herein to create, establish
or prove the said trust existence are instruments of the Moorish Science Temple
of America, Inc. therefore connected. See Frank Lewis El Bey's
TRUST EXHIBIT CHART (information on each instrument with points and
authorities).
B. CONSTRUCTION
OF THE TRUST
3 "A fundamental rule is that the determination of the intention of the se
lor or parties to a trust
tt instrument involves a construction of the
instrument where construction is necessary. in light
of surrounding circumstances at the time of the execution of the instrument.
The court places itself in the position of the trustor at the time of the
creation of the trust and interprets what he has said or done in the light of
his environment at that time. For example, the ties which connect the settlor with the objects of his bounty, the affection
between them, the motives which may reasonably be supposed to operate with him
and to influence him in the disposition of his property are all entitled to
consideration in the construction of the trust instrument 76 Am Jur 2d, sec. 17, p. 266.
4. "In construction of a trust instrument, the express intent will not be
varied under the guise of correction because the trustor misapprehended its
legal effect. The trustor is presumed to know the law,."
76 Am Jur 2d. sec 17. p.
266.
a. The Trustor's writings and oral statements
evidence his legal comprehension of the express trust he created in 1928.
5. Construction and Inference, generally.
"While the intention to create a trust may be, and usually is, manifested
by employment by the trustor of express or explicit language, such intention
may also be manifested by inference from those things which a trustor has said
or done, from the nature of a transaction, or from the circumstances
surrounding creation of the purported trust..." "A Trust based upon a
determination of intention to create it by construction and inference is an
express trust..."
"An inference of intention to create a trust may be made generally from
any manner of writing or writings, from writings in connection with other
circumstances proper to be considered, from oral statements exclusively, or in
connection with transactions and circumstances, or from conduct, transactions,
and circumstances, subject to the requirements of the statute of frauds or the parol evidence rule." 76 Am Jur
2d, see. 5 5, p. 3 03 ).
a. All the above elements are present in the express ti
List the trustor Noble Drew Ali created in 192 8 for Moorish Americans. The
writings, the connection of the writings with other circumstances. transactions, conduct, etc. are all present in this trust
and its performance.
6. Form of Words or Phrases
"Development of the institution of the trust, and its great effectiveness
in modem day law, stems in large measure from freedom from strict and formal
requirements for its creation. And the fact that parties to a trust, at the
time of entering into the agreement, did not realize that they were creating a
trust is immaterial if. in fact, what they did had the
legal effect of creating a trust ......
"Technical or particular words or phrases are not required or essential to
the manifestation of an intention of a settlor to
create a trust. Moreover, no positive rule can be laid down which shall
determine in all cases what terms or expressions will create a trust. Saylor v.
Plaine, 31 Md 158."
Also see, 76 Am Jur 2d, see. 41, p. 287
C. THE
COURT'S FUNCTION IN THE ADMINISTRATION OF THE TRUST
3 "Courts of equity have original, general and inherent jurisdiction over
trusts and the administration thereof."
a. "A Court of equity has been held to have the capacity of a universal
trustee. 76 Am Jur 2d, sec. 297, p. 5 0 1. The scope
of such judicial supervisory control includes, of necessity, any matter which concerns
the integrity of the trust res its administration, its preservation and its
disposition, and any other matter wherein its officers (trustees) are affected
in the discharge of their duties." Princess Lida
of Thum & Taxis v. Thompson, 305
b. "In the administration of a trust, the discovered intent of the trustor
is of controlling importance and the trust is to be administered in the manner
laid down by him. Neither the court. nor a
beneficiary, nor the legislature is competent to violate such intent and to
substitute its discretion for that of the trustor." 176 Am Jur 2d. see. 277, p. 499.
c. "The administration of a trust may. of course.
involve the performance of acts in more than one
place. It may. indeed. involve
acts in several states which must be performed legally according to the
respective laws of such states. But this fact does not determine the place of
administration. within the legal sense, for the
purpose of determining jurisdiction and the generally applicable law."
People v. First Nat. Bank, 364 111262, 4 NE2d 378, 108 ALR 277.
d. "A Court should exercise its jurisdiction over the administration of a
trust, as a general rule, not to remake the trust instrument, reduce or
increase beneficial interests created thereby, or accord beneficiaries more
advantage than the trustor intended', but rather to effect the administration
of the trust in accordance with the terms and directions in the manner laid
down by the trustor. Certainly a court should not substitute its judgment for
the judgment and wishes of the trustor. " 76 Am Jur 2d. sec. 282. p.
504. Marbur v. Safe Deposit & Trust Co. 177 Md 165, 9 A2d 222
Here, in accordance with the foregoing, the trustee seeks only that the court
perform its constitutional duties, that the Court construe the express trust
discussed herein within the bounds of the natural and unconstrained import of
the provisions of the entire instrument considered in connection with its
general scope and purpose. Crise v. Smith, 150 Md322;
76 Am Jur 2d, sec. 18, p. 266.
D.THE
TRUSTEE'S POWERS AND DUTIES
4. "A trustee has certain powers expressly given to him by the creator of
the trust and others given to him by implication of law, without any express
statement of them in the trust instrument. The former are also called special
powers and the latter general powers. Express or special powers are divided into
two general classes. namely, powers in trust or
imperative powers, and naked or discretionary powers. Powers in trust must be
exercised by the trustee, while discretionary powers, as their name indicates,
may be exercised by the trustee. discretionary powers
lapse and fail, while powers in trust will be exercised by the court if the
trustee fails to carry them out. Whether a power expressly given to a trustee
to rent real property. for example, is discretionary
or imperative is a matter of construction. The intent of the creator will be
ascertained from the trust instrument and surrounding circumstances and will
then be followed." Modern American Law, Vol. VII, p. 313. Also, see 28
Amer. & Eng. Ency. of law (2d ed,
pp. 981 985.
a. "One fundamental common law duty of a trustee is to preserve and
maintain trust assets and that encompasses determining exactly what property
forms a subject matter of the trust and who are the beneficiaries. trustee is expected to use reasonable diligence to discover
the location of the trust property and take control without unnecessary delay;
trustee is similarly expected to investigate the identity of the beneficiary
when trust documents do not clearly fix such party and to notify the
beneficiaries under the trust of gifts made to them."
b. "It is within the power and duty of a trustee who has accepted an
active trust to collect, take possession of. and keep
in his custody, the trust property and assets. and to
hold, manage, and apply the same to effect the purposes and objects of the
trust, and make payments and distribution to beneficiaries in accordance with
the terms of the trust." 76 Am Jur 2d, sec. '342. p. 557.
c. "It is within the power, and it is the duty, of a trustee to institute
actions and proceedings for the protection of the trust estate and the enforcement
of claims and rights belonging thereto, taking such steps as are reasonably
necessary. and to defend actions against the trust
estate. or intervene in actions and proceedings in
which he is not originally made a party whenever such intervention is necessary
or proper in order to protect the trust estate..."
"The duty of a U ustee in respect to defending
suits embraces diligence in presentation of all defenses known to him and the
discovery of defenses... " 76 Am Jur 2d, sec. 566, p. 777.
d. "Where a deed is placed in the hands of a third person who is agent for
the grantor alone, the delivery dates from delivery to the grantee, not from
delivery to the agent, especially as between the grantee and a claimant of
intermediate rights. On the other hand, where the deed was irrevocably
deposited, ultimate delivery to the grantee relates back to the time of the
original deposit." Clark v.
e. Court of Appeals of
f. Court of Special Appeals of Maryland on May 10,
1976 in Lust v. Kolbe, 3 )56 A.2d 592, held:
"Trustee's power usually stems from instrument creating position and not
by decree of court."
Wherefore. Frank Lewis El Bey. trustee is performing
the express trust herein described pursuant to the above. among
others, points and authorities.
Frank Lewis El Bey, Trustee
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