HONORARY TRUST

An arrangement whereby property is placed in the hands of another to be used for specific noncharitable purposes where there is no definite ascertainable beneficiary—one who profits by the act of another—and that is unenforceable in the absence of statute.

Trusts for the erection of monuments, the care of graves, the saying of Masses, or the care of specific animals, such as a cat, dog, or horse, are examples of honorary trusts. Honorary trusts for the benefit of specific animals differ from charitable trusts that have as a trust purpose the benefit of animals in general. In many jurisdictions, legislation validates special provisions for the upkeep of graves and monuments. Similarly, trusts for the saying of Masses are upheld as charitable trusts.

As a general rule, the designated trustee, one appointed or required by law to execute a trust, can effectuate the intent of the settlor—one who creates a trust—if he or she chooses to do so. Since there is no beneficiary who can enforce the trust, the implementation of the purposes of the trust depends upon the honor of the trustee. If the person does not execute the trust duties, he or she holds the property for the settlor or the settlor's heirs on the theory of a resulting trust.

Jurisdictions differ as to the extent to which honorary trusts will be recognized, if at all. Honorary trusts are usually limited by considerations of public policy. For instance, they cannot exist beyond the period of the rule against perpetuities, and their amounts cannot be unreasonably large for the purpose to be accomplished. The purpose must also be that of a reasonably normal testator and cannot be capricious.

A settlor bequeaths $1,000 to a trustee to care for the settlor's cat and dog, and $1,000 for the purpose of maintaining the settlor's home in the same condition as of the instant of his death for twenty years thereafter, with all windows and doors blocked shut. Upon the settlor's death, the residuary legatee inherits any money that remains in the estate after all other claims are paid and makes claims to both sums of money under these testamentary provisions. A court will find that the residuary legatee has no right to the $1,000 left for the cat and dog unless the trustee refuses to fulfill the obligations of caring for the dog and cat. The residuary legatee is, however, entitled to the other $1,000. Neither of these provisions of the settlor's will created a private trust.

As a general rule, the beneficiary of a private trust must be competent to come into court either in person or by guardian and enforce the trust duties against the trustee. Neither the cat nor the dog can appear in court. Some states permit provisions for reasonable sums to specific animals to be valid honorary trusts as long as public policy is not violated. If the trustee fails to properly execute his or her duties, he or she holds the property in resulting trust for the heirs or next of kin of the decedent. In this example, if the trustee spends the $1,000 in caring for the dog and cat, he or she is not liable, but if he or she does not, a court will order the trustee to turn the money over to the residuary legatee as the beneficiary of a resulting trust. If the purpose of an intended honorary trust is capricious, the trust will fail. In this case, there is no legitimate end to be served by keeping the settlor's home boarded up for twenty years. The purpose is capricious and the trust fails. Therefore, the $1,000 set aside for this purpose is held by the trustee in resulting trust for the residuary legatee who must receive it.