INTRODUCTORY VIEW OF THE RISE AND PROGRESS OF TRUSTS. THE origin of trusts, or rather the adaptation of them to the English law, may be traced to the ingenuity of fraud. By the interposition of a trustee the debtor thought to withdraw his property out of the reach of his creditor, the freeholder to intercept the fruits of tenure from the lord of whom the lands were held, and the body ecclesiastic to avoid the restrictions directed against the growing wealth of the church by the statutes of mortmain. Another inducement to the adoption of the new system was the natural anxiety of mankind to acquire that free power of alienation and settlement of their estates, which by the narrow policy of the common law they had hitherto been prevented from exercising. Originally the only pledge for the due execution of the trust was the faith and integrity of the trustee; but the mere feeling of honor proving, as was likely, when opposed to self-interest, an extremely precarious security, John Waltham, Bishop of Salisbury, a Chancellor in the reign of Richard the Second, invented the writ of subpœna, by which the trustee was liable to be summoned into Chancery, and compellable to answer upon oath the B allegations of his cestui que trust. No sooner was this protection extended, than half the lands in the kingdom became vested in feoffees to uses. Thus, in the words of an old counsellor, the parents of the trust were Fraud and Fear, and a court of conscience was the Nurse (a). Of trusts there were two kinds: the simple trust, and the special trust. The simple trust, which also passed by the name of a use, was defined in legal phraseology to be, "a confidence, not issuing out of the land, but as a thing collateral, annexed in privity to the estate of the land, and to the person touching the land, scilicet, that cestui que use should take the profit, and that the terretenant should execute an estate as he should direct." In order rightly to understand what was meant by this rather technical description, we shall briefly consider the principles that were recognised by courts of equity (for these courts had the exclusive jurisdiction of trusts), first, with reference to the terre-tenant or feoffee to uses, and secondly, with reference to the beneficial proprietor, or cestui que use. With respect to the feoffee to uses, it was held to be absolutely indispensable that there should be confidence in the person, and privity of estate. For want of the requisite of personal confidence it was ruled that a corporation could not stand seised to a use; for how, it was said, could a corporation be capable of confidence when it had not a soul? Nor was it competent for the king to sustain the character of trustee; for it was thought inconsistent with his high prerogative that he should be made responsible to his own subject for the due administration of the estate. And originally the subpoena lay against the trustee himself only, and could not have been sued against (a) Attorney General v. Sands, Hard. 491. either his heir or assign; for the confidence was declared to be personal, and not to accompany the devolution of the property (b). But the doctrine of the court in this respect was subsequently put on a more liberal footing, and it came to be held that both heir and assign should be liable to the execution of the use. An exception however was still made in favour of a purchaser for valuable consideration not affected by notice (c). The meaning of privity of estate may be best illustrated by an example. Had a feoffment been made to A. for life to his own use, with remainder to B. in fee to the use of C., and then A. had enfeoffed D. in fee, in this case, though D. had the land, yet, as he did not take the identical estate in the land to which the use in favor of C. was attached, he was not bound by C.'s equitable claim. And, by the same rule, neither tenant by the curtesy, nor tenant in dower, nor tenant by elegit, was liable to the execution of the use, for their interests were new and original estates, and could not be said to have been impressed with the use. So the lord who was in by escheat, a disseisor, abator, and intruder, were not amenable to the subpoena; for the first claimed by title paramount to the creation of the use; and the three last were seised of a tortious estate, and held adversely to the feoffee to uses. With respect to the cestui que use, the principle upon which his whole estate depended was also what in legal language was denominated privity. Thus, on the death of the original cestui que use, the right to sue the subpœna was held to descend indeed to the heir on the ground that hæres eadem persona cum antecessore; but the wife of the cestui que use, or the husband of a feme cestui que use, and a judgment creditor, were not admitted to the (b) 8 E. 4. 6; 22 E. 4. 6. (c) Keilway, 42. b. same privilege; for their respective claims were founded not on privity with the person of the cestui que use, but on the course and operation of law. And for the like reason a use was not assets, was not subject to forfeiture, and on failure of heirs in the inheritable line did not escheat to the lord. And as a use was regarded in the light of a chose en action, that is, a mere right to enforce a claim against another in a court of equity, the use was held not to be assignable (d). The special trust (for hitherto we have spoken of the simple trust or use only) was where the conveyance to the trustee was to answer some particular and immediate purpose, as upon trust to reconvey in order to change the line of descent, upon trust to sell for payment of debts, &c. In the special trust the duty of the trustee was not, as in the use, of a mere passive description, but imposed upon him the obligation of exerting himself in some active character for the accomplishment of the purpose prescribed. In case the trustee had neglected his duty, the cestuis que trust might have filed a bill in Chancery, and have compelled him to proceed in the execution of his office (e). Both the use and the special trust were applicable to chattels real and personal, as well as to freeholds; but trusts of chattels were for obvious reasons much less frequently in practice. The amount of the property was small; the owner, even without the interposition of a trustee, had the fullest control and dominion over it; and a chattel interest, as it followed the person, was equally subject to forfeiture whether in the custody of a trustee, or in the hands of the beneficial proprietor (f). But to (d) Finch's case, 4 Inst. 85. (e) See the case in the reign of Hen. 7, Append. to Treat. of Powers, No. 1. |