Page:Encyclopædia Britannica, Ninth Edition, v. 23.djvu/619

Rh grantee. The operation of the Statute of Uses was supplemented by the Statute of Inrolments and that of Wills. (See WILL.) The Statute of Inrolments (27 Hen. VIII. c. 16) enacted that no Imrgain and sale should pass a freehold unless by deed indented and inrolled within six months after its date in one of the courts at Westminster or with the custos rotulorum of the county. As the statute referred only to freeholds, a bargain and sale of a lease hold interest passed without inrolment. Conveyancers took advantage of this omission (whether intentional or not) in the Act, and the practical effect of it was to introduce a mode of secret alienation of real property, the lease and release, which was the general form of conveyance up to 1845. (See REAL ESTATE, SALE.) Thus the publicity of transfer, which it was the special object of the Statute of Uses to effect, was almost at once defeated. In addition to the grant to uses there were other modes of conveyance under the statute which are now obsolete in practice, viz., the covenant to stand seised and the bargain and sale. Under the statute, as before it, the use has been found a valuable means of limiting a remainder to the person creating the use and of making an estate take effect in derogation of a former estate by means of a shifting or springing use. At common law a freehold could not be made to commence in future; but this end may be attained by a shifting use, such as a grant (common in marriage settlements) to A to the use of B in fee simple until a marriage, and after the celebration of the marriage to other uses. An example of a springing use would be a grant to A to such uses as B should appoint and in default of and until appointment to C in fee simple. The difficulty of deciding where the seisin was during the suspension of the use led to the invention of the old theory of scintilla juris, or continued possibility of seisin in the grantee to uses. This theory was abolished by 23 and 24 Viet. c. 38, which enacted that all uses should take effect by force of the estate and seisin originally vested in the person seised to the uses. The most frequent instances of a springing use are powers of appointment, usual in wills and settlements. There has been much legislation on the subject of powers, the main effect of which has been to give greater facilities for their execution, release, or abandonment, to aid their defective execution, and to alwlish the old doctrine of illusory appointments. Trusts. A trust in English law is defined by Mr Lewin, adopt ing Coke's definition of a use, as "a confidence reposed in some other, 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, for which ccstui que trust has no remedy but by subpoena in Chancery." The term trust or trust estate is also used to denote the beneficial interest of the cestui que trust. The term truster is not used, as it is in Scotland, to denote the creator of the trust. A trust has some features in common with CONTRACT (q.v.); but the great difference between them is that a contract can only be enforced by a party or one in the position of a party to it, while a trust can be, and generally is, enforced by one not a party to its creation. It has more resemblance to fideicommissum. But the latter could only be created by a testamentary instrument, while a trust can be created either by will or inter vivos; nor was there any trace in Roman law of that permanent legal relation which is suggested by the position of trustee and cestui que trust. The heir, too, in Roman law was entitled, from 70 A.D. to the reign of Justinian, to one-fourth of a hereditas fidcicommissaria as against the bene ficiary, while the very essence of the trust is its gratuitous character. Trusts may be divided in more than one way, according to the ground taken as the basis of division. One division, and perhaps the oldest, as it rests on the authority of Bacon, is into simple and Siberia!, the first being where the trust is simply vested in a trustee and the nature of the trust left to construction of law, the second where there is an act to be performed by the trustee. Another division is into lawful and unlawful, and corresponds to Bacon's division into intents or confidences and frauds, covins, or collusions. A third division is into public and private, the former being synonymous with charitable trusts. A division often adopted in modern text-books and recognized by parliament in the Trustee Act, 1850, is into express, implied, and constructive. An express trust is determined by the person creating it. It may be either executed or executory, the former where the limitations of the equitable interest are complete and final, the latter where such limitations are intended to serve merely as minutes for perfecting the settlement at some future period, as in the case of marriage articles drawn up as a basis of a marriage settlement to be in conformity with them. An implied trust is founded upon the intention of the person creating it; examples of it are a resulting trust, a precatory trust, and the trust held by the vendor on behalf of the purchaser of an estate after contract and before conveyance. In this case the vendor is sometimes called a trustee sub modo and the purchaser a cestui que trust sub modo. A constructive trust is judicially created from a consideration of a person's conduct in order to satisfy the demands of justice, without reference to intention. The distinction between an implied and a constructive trust is not always very consistently maintained. Thus the position of a vendor towards a purchaser after contract is sometimes called a constructive trust. The present law governing trusts rests upon the doc trines of equity as altered by legislation. Its great importance has led to its becoming one of the most highly developed departments of equity. The devolution of successive interests in wills and settlements is almost wholly attained by means of trusts.

Who may be a Trustee or Ccstui que Trust.—The modern trust is considerably more extensive in its operation than the ancient use. Thus the crown and corporations aggregate can be trustees, and personalty can be held in trust. Provision is made by the Municipal Corporations Act, 1882, for the administration of charitable and special trusts by municipal corporations. The crown does not appear to be a trustee to as complete a degree as a subject may be. Unsuccessful attempts have recently been made to impress the crown, or a secretary of state as agent of the crown, with trusts of funds voted by parliament for the public service, of booty of war granted by royal warrant, and of money paid over by a foreign state in pursuance of a treaty. There are certain persons who for obvious reasons, even if not legally disqualified, ought not to be appointed trustees. Such are infants, lunatics, persons domiciled abroad, felons, bankrupts, and cestuisquetrustent. The appointment of any such person, or the falling of any existing trustee into such a position, is generally ground for application to the court for appointment of a new trustee in his place. Any one may be a cestui que trust except a corporation aggregate, which cannot be a cestui que trust of real estate without a licence from the crown. Creation and Extinction of the Trust. A trust may be created either by act of a party or by operation of law. Where a trust is created by act of a party, the creation at common law need not be in writing. The Statute of Frauds (see FRAUD) altered the common law by enacting that all declarations or creations of trusts or confidences of any lauds, tenements, or hereditaments shall be manifested and proved by some writing, signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect. Trusts arising or resulting by implication or construction of law are excepted, and it has been held that the statute applies only to real estate and chattels real, so that a. trust of personal chattels may still be declared by parol. The declaration of a trust by the crown must be by letters patent. Trusts created by will must conform to the requirements of the Wills Act (see WILL). Except in the case of charitable trusts, the cestui que trust must be a definite person. A trust, for instance, merely for keeping up family tombs is void. Alteration of the trust estate by appointment of a new trustee could up to 1860 only be made where the instrument creating the trust gave a power to so appoint, or by order of the Court of Chancery. But now by the Conveyancing Act, 1881 (superseding Lord St Leonards's Act of 1860), the surviving or continuing trustee or trustees, or the personal representative of the last surviving or continuing trustee, may nominate in writing a new trustee or new trustees. On such appointment the number of trustees may be increased. Existing trustees may by deed consent to the discharge of a trustee wishing to retire. Trust property may be vested in new or continuing trustees by a simple declaration to that effect. By the Conveyancing Act, 1882, a separate set of trustees may be appointed for any part of the property held on distinct trusts. Trusts created by operation of law are either those which are the effect of the application of rules of equity or those which have been constituted by a judicial authority. They include resulting and constructive trusts. A resulting trust is a species of implied trust, and consists of so much of the equitable interest as is undisposed of by the instrument creating the trust, which is said to result to the creator and his representatives. An example is the purchase of an estate in the name of the purchaser and others, or of others only. Here the beneficial interest is the purchaser's. An example of a constructive trust is a renewal of a lease by a trustee in his own name, where the trustee is held to be constructively a trustee for those interested in the beneficial term. An instance of a constructive trust upon which the courts have often been called upon to decide is the fiduciary relation between the promoter of a proposed joint-stock company and the members of the company when formed. The other trusts falling under the head of trusts by operation of law would be those imposed upon a trustee by order of a court, even though they are imposed in pursuance of provisions contained in a trust created by a party. Such would be the trusts which have come within the cognizance of the court by virtue of the Trustee Act, 1850, or in any other way. The powers of the court over trusts have been much extended by legislation. The Act of 1850 (13 and 14 Vict c. 60) enabled the Court of Chancery to appoint new trustees where expedient, and to make vesting orders in many cases where such orders could not previously have been made, as where a trustee was a lunatic, or an infant, or refused to convey. This Act was extended by the Trustee Extension Act, 1852 (15 and 16 Viet. c. 55). By the Conveyancing Act, 1881, a trustee appointed by the Chancery Division is to have the same powers as if he had been originally appointed a trustee by the instrument creating the trust. The Bankruptcy Act, 1883, enables the court to appoint a new trustee in the place of a bankrupt trustee.