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entitled to the reconveyance of the land. But, by a strange inconsistency in the law both in England and in this country, C. is allowed to get the benefit of the trust in spite of the Statute of Frauds. . . . It is quite possible that the courts, in giving C. the benefit of the trust in cases of devises by A. to B. upon an oral trust for C., and in refusing him any relief in cases of similar conveyances inter vivos, were influenced by the practical consideration that in the latter case the grantor, recovering his property by the principle of restitution, would still be in a position to accomplish his purpose, whereas in the case of the devise the accomplishment of his purpose would depend wholly upon the will of his heir." 46

That explanation is undoubtedly forceful; but was Dean Ames right in believing that the majority decisions in the deed cases were sound and that those in the will cases were unsound? To the writer it seems that the courts have been right in enforcing a constructive trust in favor of C. in the will cases, and that the majority jurisdictions have been wrong in refusing to do so in the deed cases. 47 Dean Ames said that to enforce a trust in favor of C. in the will cases, where C. commits only a purely passive breach of promise as distinguished from an active tort, would be to violate the Statute of Wills and the Statute of Frauds. But why so? It cannot be because to enforce a constructive trust in C.'s favor would be to give him just what he would get if the express trust were enforced; for in the case of a deed by A. to B. on an oral trust for the grantor, Dean Ames favored a constructive trust for the grantor and said:

“A., it is true, may by means of this constructive trust get the same relief that he would secure by the enforcement of the express trust. But this is a purely accidental coincidence. His bill is not for specific performance of the express trust, but for the restitution of the status

quo.48

Since in the situation just stated it violates no statute to give A. on constructive trust what he would have had under the express trust, it need violate none in the case of a devise by A. to B. on an oral trust for C., to give C.on constructive trust what he would have had under the express trust, provided only that a satisfactory reason for enforcing the constructive trust in C.’s favor rather than in that of A.'s heir or residuary devisee is furnished. It is believed that in the will cases such a satisfactory reason is found in the fact that C. is the one, and the only one, substantially injured by the breach of promise. It being plain that the devisee must not be allowed to keep for himself, chancery looks around for an appropriate cestui que trust. What more appropriate selection could equity make than the cestui que trust who would have been express cestui que trust but for the failure of the testator to put his wishes in correct form? The property is devoted to trusts by the testator's and the devisee's joint act, and why not have a trust cy pres the testator's intention, just as is done in those cases of charitable trusts where the testator provides that a corporation, to be formed for the specified purposes, shall take? There such a corporation cannot take of right, but if it is formed in a reasonable time, it will be given the property cy pres the testator's general intentions.49 Why make, as cestui que trust of the constructive trust, the heir or the residuary devisee, neither one of whom the testator wanted to have the property? Equity, perhaps, cannot properly enforce, even cy pres, the details of the express trust, since that might be too like making the unattested will of the creator of the trust take effect; but, since to prevent fraudulent enrichment it must declare a constructive trust, it can name as the cestui que trust of that trust the very person intended to be cestui que trust of the express trust, and therefore the one injured by the fraudulent acts of the trustee.50 The reason why nearly all of the courts enforce a trust

46 Ames, Lectures on Legal History, pp. 429-431. See same passage in 20 Harv. L. Rev. 549, 553-555.

47 See 12 Mich. L. Rev. 429-444.

48 Ames, Lectures on Legal History, p. 427. See same passage in 20 Harv. L. Rev. 549, 551.

49 Gray's Rule against Perpetuities, 2 ed., $ 607. See Sinnett v. Herbert, L. R. 7 Ch. App. 232 (1872). Cf. Wallis v. Solicitor-General for New Zealand, (1903) A. C. 173.

When a definite function or duty is to be performed and it cannot be done in exact conformity to the scheme of the donor, it must be performed with as close an approximation to that scheme as reasonably practicable, and thus enforced. It is the doctrine of approximation. It is not confined to the administration of charities, but is equally applicable to all devises and contracts wherein the future is provided for; and it is an essential element of equity jurisprudence. The doctrine of cy pres, in its last analysis, is found to be a simple rule of judicial construction, designed to aid the court to ascertain and carry out, as nearly as may be, the intention of the donor.” — Sanborn, D. J., in Tincher v. Arnold, 147 Fed. 665, 675 (1906).

60 As was said by the court in DeLaurencel v. DeBoom, 48 Cal. 581, 586 (1874),

in favor of C. in the devise cases, and why a majority of them do not do so in the deed cases, in the absence of fraudulent intent at the time of taking or of a special confidential relationship between grantor and grantee, is that in the will cases the death of the testator makes evident to the courts what in the deed cases the presence of the living grantor often conceals; namely, that the party to suffer by the breach of trust is the intended cestui que trust and not the one who furnishes the property and that, since the unjust enrichment of the trustee, to prevent which a constructive trust is raised, is at the expense of the intended cestui que trust, he should be selected by the court of chancery as the cy pres constructive-trust cestui que trust.51 No doubt, in cases where wills are concerned, it is easier to give due weight to the intentions of the supplier of the property than it is in cases where deeds are used to transfer the property; but in both cases chancery is, on principle, bound to select as its constructive-trust cestui que trust the very man the creator of the oral trust made the cestui que trust of the unenforceable express trust.

Before taking up the authorities a word should be said about the kind of promise that will serve to make retention by the legatee or devisee in breach of promise fraudulent. It need not be a promise expressly to hold in trust; it may be a promise to pay to the intended beneficiary money derived out of the property convey land to him 53 or to devise to him.54 It must, however, be a promise which was meant to be binding and not merely precatory.55 Whenever the performance is not illegal and the promisor, who is to his knowledge regarded by the promisee as obligated to perform, fails to notify the promisee before taking title that he will not perform, he cannot keep the property and repudiate his express or implied in fact promise without being made a constructive trustee.

or to

where a devisee under a will prevented a revocation of a will by promising to hold in trust for certain named cestuis que trust: “It would be a fraud upon the testator and upon cestuis que trust to permit the defendant to repudiate the trust on the faith of which the estate was devised to him.” It is in the legacy, devise, and intestacy cases that the courts see clearly the fraud on the cestuis que trust and act accordingly.

61 That the enrichment is at the expense of the intended cestui is seen most clearly in those cases where the promisor partly performs to the cestui que trust but his administrator repudiates all liability (see Williams v. Fitch, 18 N. Y. 546 (1859)), or where the promisor himself repudiates after partly performing. See Harris v. Howell, Gibb Eq. 11 (1798).

52 Williams v. Vreeland, 29 N. J. Eq. 417 (1878), 32 N. J. Eq. 135 (1880), 32 N. J. Eq. 734 (1880).

63 Benbrook v. Yancy, 96 Miss. 536, 51 So. 461 (1910); Dowd v. Tucker, 41 Conn. 197 (1874).

64 Gilpatrick v. Glidden, 81 Me. 137, 16 Atl. 464 (1888); Laird o. Vila, 93 Minn. 45, 100 N. W. 656 (1904); Chapman's Ex’r v. Chapman, 152 Ky. 344, 153 S. W. 434 (1913).

(To be continued]

George P. Costigan, Jr. NORTHWESTERN UNIVERSITY LAW SCHOOL.

55 McCormick v. Grogan, supra; In re Pitt Rivers, (1902) 1 Ch. 403; Sullivan v. Sullivan, (1903) 1 Ir. R. 193; Allmon v. Pigg, 82 Ill. 149 (1876); Orth o. Orth, 145 Ind. 184, 42 N. E. 277 (1896). Cf. Whitehouse v. Bolster, 95 Me. 458, 50 Atl. 240 (1901).

In McCormick v. Grogan, supra, p. 99, Lord Westbury, in passing on the question whether a devisee and legatee was to be deemed a trustee because of a conversation between himself and the testator about a letter which was later found with the will and which named gifts which the testator would like made, refused to imply a trust because it was impossible to say that what the legatee and devisee said to the testator amounted “to a distinct promise, the breach of which would constitute a fraud; for you cannot constitute a fraud in this matter unless you find that there is a distinct and positive promise, the non-fulfillment of which brands the party with disgrace as having personally imposed on the testator ... and there is nothing, therefore, to justify the appellant in coming here to fasten that personal imputation upon the respondent and then to derive from that a conclusion of trust in favor of himself.”

THE QUESTION OF FEDERAL DISPOSITION OF

STATE WATERS IN THE PRIORITY STATES

WHICH

THICH has the authority, - the federal government or the state,

to dispose of the waters of the streams in our priority states? In other words, which of the two is to determine what the system of water rights for the state shall be, - for instance, whether riparian or priority, and to dispose of rights to water thereunder? Here we have the greatest and most interesting of the many unsettled questions in the law of western water rights.

What difference does the decision make? A very decided one. If, for instance, the federal government has the authority, then the State Engineer of Wyoming is wrong in his contention that the Reclamation Service has no right to divert from the North Platte in Wyoming a large quantity of water for the irrigation of land in a neighboring state; and the Department of Justice at Washington is right in the position which it has recently taken in asserting that all stream waters not yet appropriated in the priority states are subject to disposition by the federal government and not by the state.

If the authority in question is lodged in the federal government, then, except to the extent of the government's consent, the state may not ordain or maintain any system of water rights at all or determine by whom rights to water may be acquired or upon what terms or what the nature of the right shall be.

Such consequences, indeed, justify the inquiry, which, the federal government or the state, is the disposing authority?

My topic and the method of treating it are such that for the sake of clarity, it is best to state at the outset that I take the position that the power of disposing of the waters of the state is lodged not in the federal government but in the state. The theory by which I reach this conclusion is that there is a distinction between

1 From recent address before the Colorado State Bar Association at Colorado Springs. The author desires to acknowledge helpful suggestions from Roscoe Pound, Esq., Professor of Law in Harvard Law School.

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