Page:Harvard Law Review Volume 5.djvu/408

392 392 HAR VARD LA W RE VIE W. like the trustees in the "Tilden Trust," to apply the property in ac- cordance with the testator's will. But the Master of the Rolls and the Lord Chancellor decided that the trust must fail, and de- creed in favor of the next of kin. One who dissents from a decision of Sir William Grant, affirmed by Lord Eldon, which has remained unchallenged for nearly ninety years, and which has been followed in many later decisions, 1 must realize that he is leading a forlorn hope. Nevertheless the writer, finding himself unable to agree with the conclusion in Morice v. Bishop of Durham, ventures to give the reasons for his faith. It will be granted at the outset that the decision in this case defeated the will of the testator, and that nothing short of an im- perative rule of law can ever justify such a result. It is also certain that no such rule of law is mentioned by Lord Eldon. The distinguished chancellor, after saying that the bishop could not hold for his own benefit, disposes of the bishop's willingness to perform the trust in this short and unsatisfactory fashion : " I do not advert to what appears upon the record of his intention to the contrary, and his disposition to make the application ; for I must look only to the will, without any bias from the nature of the disposition, or the temper and quality of the person who is to execute the trust." Sir William Grant seems to have thought that the right of the next of kin resulted from an intestacy as to the beneficial interest. 2 But the fallacy of this view is demonstra- ble with almost mathematical conclusiveness. An intestacy, where everything that the testator had passes by his will, is a self- evident contradiction. And yet in Morice v. Bishop of Durham all the testator's property did pass by his will to the bishop. If it be said that the legal title passed, but not the equitable interest, the answer is that the absolute owner of property has no equitable 1 James v. Allen, 3 Mer. 17 (semble) ; Ommaney v. Butcher, T. & R. 260; Fowler v. Garlike, 1 Russ & M. 232; Williams v. Kershaw, 5 CI. & F. in (semd/e); Harris v. Du Pasquier, 26 L. T. Rep. 689; Leavers v. Clayton, 8 Ch. D. 589; Adye v. Smith, 44 Conn. 60; Chamberlain v. Stearns, m Mass. 267; Nichols v. Allen, 130 Mass. 211. But see Goodale v. Mooney, 60 N. H. 528. 2 " If there be a clear trust, but for uncertain objects, the property that is the subject of the trust, is undisposed of; and the benefit of such trust must result to those to whom the law gives the ownership in default of disposition by the former owner." 9 Ves. 399. See, to same effect, Levy v. Levy, 33 N. Y. 97, 102 per Wright, J., and Holland v. Alcock, 108 N. Y. 312, 323 per Rapallo, J.