A trust which involves some active duty on the part of the trustee, such as to care for the land, to paytaxes, to collect the income therefrom, to make a sale, mortgage, or conveyance thereof, is known as an "active" or "special" trust, in contradistinction to one whereby the trustee is merely the depositary of the legal title, with no duties except to make a conveyance when called upon by the cestui que trust, and to defend the legal title, or to allow his name to be used for the purpose; such a trust being termed a "simple," "passive," "bare," "naked," or "dry" trust.67 A trust such as we have described above under the names "resulting" and "constructive" trusts cannot, it would seem, be other than a passive trust, and consequently the distinction here referred to may be considered as applicable to express trustsalone.
66. 1 Perry, Trusts Sec. 245. Tar-box v. Tarbox, 111 Me. 374, 39 Atl. 194.
67. 1 Perry, Trusts, c. 17; Lewin, Trusts, Introduction, and chapter 2; 2 Pomeroy, Eq. Jur. Sec. 991 et seq.
Where the Statute of Uses is in force, a passive or simple trust in real property must be created by means of a limitation of a use upon a use, since otherwise it will not be a passive trust, hut a passive use, and as such be executed by the statute. See ante, Sec. 99.
Passive or simple trusts arc not common in this country, and in some states it is provided by statute that the legal title shall vest in the cestui que trust.68 In Now York, and other states adopting its Legislative policy in this regard, no passive trust in land can be created, and active trusts are allowed only for the following purposes:69 (1) To sell real property for the benefit of creditors; (2) to sell, mortgage, or lease real property for the benefit of annuitants or other legatees, or for the purpose of satisfying any charge thereon; (3) to receive the rents and profits of real property, and apply them to the use of any person during the life of that person, or for any shorter term;(4) to receive such rents and profits and to accumulate them for the purposes and within the limits prescribed by law; "for religious, educational, charitable, or benevolent uses." The effect of such prohibition of passive trusts is to vest the legal title in the beneficiary in case of an attempt to create such a trust, and so its effect is similar in that respect to that of the Statute of Uses.70 Certain classes of attempted trusts that are invalid as trusts because not of a kind specified in the statute are, however, by express provision of the statute, uphold as "powers in trust" or "charges" on land.