Page:Harvard Law Review Volume 5.djvu/410

394 394 HAR YARD LA W RE VIE W. have seen, does not come to the heir or next of kin as an intestate succession. The trust comes into being only after the death of the testator. Being the creation of the courts of equity it is a constructive or quasi trust, and founded, like all constructive trusts, upon natural justice. The trustee was plainly not intended to take the property for himself ; he ought to hold it for some one ; and no one, it is obvious, is, in general, so well entitled to the beneficial interest as the creator of the trust or his representa- tive. 1 If, however, as in Morice v. Bishop of Durham, and the "Til- den Trust," the performance of the express trust is not im- possible nor illegal, even though there is no specific cestui que trust named who can compel its performance, the trust does not of necessity fail. Whether it shall fail or not in a given case must depend on the will of the trustee. If the trustee refuses to per- form, as there is no one to compel performance, the trust fails, and the trustee, as in the other cases of impossibility and for the same reasons, will be held as a constructive trustee for the creator of the trust or his representative. If, however, the trustee is willing to perform the trust, these reasons lose all their force. 1 Sometimes natural justice dictates a different disposition of the beneficial interest; e.g., property is devised upon trust to distribute the same among members of a class, with full discretion as to the proportions and the individuals within the class. The trustee for some reason fails to distribute. The express trust, then, cannot be performed. The trustee, however, as before, ought not to keep the property for himself. But here it is much more consonant with natural justice to create a constructive trust for the equal bene- fit of all the members of the class than to give it to the testator's representative. Where the class is defined as • relatives," the trustee may, of course, select any relatives, how- ever distant. But, if he makes no selection, an equal distribution among all kinsmen, near and remote, would commonly be impracticable. Equity, therefore, goes a step further and limits the equal distribution to those who would be entitled under the statute of distributions. This solution is doubtless in accordance with the general sense of justice. Huling v. Fenner, 9 R. I. 412. The common explanation of these cases, that there is a gift which vests in the class subject to be divested by the exercise of the trus- tee's discretion in favor of some one or more of the class, seems to be artificial and unsupported by the facts. Again, if property is bequeathed to a trustee for such charitable purposes as he shall designate, and the trustee names none, the express trust cannot be carried out. Equity, however, will treat this as a constructive trust for general charity and frame a scheme. And this disposition of the property, as every one will admit, is a nearer approximation to the testator's probable intention, and therefore more just than to create a constructive trust for his representative. Minot v. Baker, 147 Mass. 348, and cases cited.