105 CHAPTER VIII. WHO MAY BE CESTUI QUE TRUST. ON the principle of æquitas sequitur legem, those persons only, who may purchase the legal estate, may become purchasers of the equitable. It is laid down by Chief Baron Gilbert, that the King cannot have a feoffee to his use, because he cannot take but by matter of record; but, if the use be found by office upon record, then he may take (a). But Lord Bacon seems to have thought, that the purpose of the inquest was not to make, but to find the title; for he says, "It behoveth both the declaration of the use, and the conveyance itself, to be matter of record, because the King's title is compounded of both. I say, not appearing of record, but by conveyance of record; and, therefore, if I covenant with J. S. to levy a fine to him to the King's use, which I do accordingly, and the deed of covenant be not inrolled, and the deed be found by office, the use vesteth not; e converso inrolled. If I covenant with J. S. to enfeoff him to the King's use, and the deed be inrolled, and the feoffment be found by office, the use vesteth (not); but if I levy a fine, or suffer a recovery to the King's use, and declare the use by deed of covenant inrolled, though the King be not a (a) Gilb. on Uses, 44, 204. party, yet the use is good enough (b)." If the law be thus, the abolition of fines and recoveries may have created a difficulty of declaring a trust to the King. A corporation may be a cestui que trust, but not of lands without a licence from the Crown, for otherwise there would be an evasion of the Statutes of Mortmain (c). A trust of real estate may be declared to an alien (d); but it seems he cannot compel the execution for his own benefit (e), it being contrary to the policy of the law, that an alien should plead or be impleaded touching lands in any court in the kingdom (ƒ); and the King on inquest found shall be entitled to the trust by forfeiture, for the mischief is the same as if the alien had purchased the lands themselves (g); but the forfeiture vests not in the King the legal estate (h), but merely transfers to him the right of suing a subpoena against the trustee in equity (i). It is sometimes a question, and not very easy to be determined, who is the actual cestui que trust. In a case before Lord Keeper Bridgman it was doubted, whether a conveyance for payment of debts, made voluntarily, and no creditors named in the deed, was revocable by the grantor, and the Court, with the assist (b) Bacon's Law Readings, 349. (c) See Shepp. Touch. 509. (d) See Godfrey v. Dixon, Godb. 275; but see Br. Feff. al us. 339. a, pl. 29. (e) King v. Holland, Al. 16, per Bacon, J.; S. C. Styl. 21, per Roll, J. (f) Gilb. on Uses, 43. (g) Attorney-General v. Sands, Hard. 495, per Lord Hale; Fourdrin v. Gowdey, 3 M. & K. 383. (h) King v. Holland, Al. 14; Sir John Dack's case, cited Ib. 16; Attorney-General v. Sands, Hard. 495, per Lord Hale. (i) King v. Holland, Al. 16, per Roll, J.; Roll. Ab. 194, pl. 8. ance of the judges, was clearly of opinion, that the deed was founded on a just and honest consideration, and the creditors were cestuis que trust, and might compel the execution (k). But in a case before Lord Eldon, where the creditors were scheduled to the deed, though neither parties nor privy to it, the instrument was held to be revocable (1); and so it was determined in a more recent case, where the creditors were parties to the deed, but not privy to it (m). And the principle, upon which the modern doctrine proceeds, is reasonable enough; for, "Where," observed Sir L. Shadwell, "a person without the privity of any one, without receiving consideration, and without notice to any creditor, makes a disposition, as between himself and trustees, for payment of debts, he is merely directing the mode in which his own property shall be applied for his own benefit, and the general creditors, or the creditors named in the schedule, are merely persons named there for the purpose of shewing how the trust property shall be applied (n)." "The deed merely operates," said Sir J. Leach, "as a power to the trustees, which is revocable by the debtor, and has the same effect, as if the debtor had delivered money to an agent to pay his creditors, and, before any payment made by the agent, or communication by him to the creditors, had recalled the money so delivered (o)." And the present Lord Chancellor, when Master of the Rolls, ob (k) Langton v. Tracy, 2 Ch. Re. 30; and see Leech v. Leech, 1 Ch. Ca. 249. (1) Wallwyn v. Coutts, 3 Mer. 707; S. C. 3 Sim. 1. (m) Garrard v. Lauderdale, 3 Sim. 1; and see Acton v. Wood gate, 2 M. & K. 492; Page v. Brown, 4 Russ. 24. (n) Garrard v. Lord Lauderdale, 3 Sim. 12. (0) Acton v. Woodgate, 2 M. & K. 495. served, "In Walwyn v. Coutts and Garrard v. Lord Lauderdale the character of trustee and cestui que trust never existed between the creditor and the trustees, for the settlor himself was the only cestui que trust, and therefore he was entitled to direct the application of his own trust fund. The rule is adopted to promote the views and intentions of the parties. A man, who, without any communication with his creditors, puts property into the hands of trustees for the purpose of paying his debts, proposes only a benefit to himself, and not to his creditors; it would be a result most remote from the contemplation of the debtor, if it should be held, that any creditor, discovering the transaction, should be able to fasten upon the property, and invest himself with the character of cestui que trust (p)." The case of Garrard v. Lord Lauderdale involved the additional circumstance of a subsequent communication from the trustees to the creditors of the contents of the trust deed, but the Court was of opinion, as appears right upon principle, that the revocable nature of the instrument was not thereby destroyed (q). Another instance of an ostensible, but not actual cestui que trust, is, where the trustees are directed to pay out of the estate the costs and charges of the management and administration of the trust; for the persons employed by the trustees have, notwithstanding that declaration, no lien upon the trust fund, but only a remedy against the trustees upon the ground of the contract (r). But if the settlor expressly desire that A. B. shall be (p) Bill v. Cureton, 2 M. & K. 511. (q) See Garrard v. Lord Lauderdale, 3 Sim. 12; but see Acton v. Woodgate, 2 M. & K. 495. 4. |