Passive

Occurs in some technical phrases. Passive debt. According to. the books, the debts which a person owes are sometimes called passive debts, to distinguish them from the debts which are due to him: these latter are called active debts, because they may assist him in raising funds. We have not met the phrase actually used. Passive trust, or use. Passive uses were resorted to before the statute of uses, in order to escape from the trammels and hardships of the common law, the permanent division of property into legal and equitable interests being clearly an invention to lessen the force of some pre-existing law. For similar reasons, equitable interests were, after the statute, revived under the form of trusts. As such, they continued to flourish, notwithstanding the signal amelioration effected at a later period in the law of tenure, because the legal ownership was attended with some peculiar inconveniences. For, in order to guard against the forfeiture of a legal estate for Ufe, passive trusts, by settlement, were resorted to, and hence trusts to preserve contingent remainders; and passive trusts were and are created in order to prevent dower. Where an active trust was created, without defining the quantity of the estate to be taken by the trustee, the courts endeavored to give, by construction, the quantity originally requisite to satisfy the trust in every event; but, if a larger estate was expressly given, the courts could not reject the excess; and althougli the estate taken, whether expressly or constructively, might not have exceeded the original scope of the trust, yet, if eventually no estate, or a less estate, were actually wanted, the legal ownership remained wholly or partially vested in the trustee as a merely passive trustee.

1 Hayes Conv. 103.