Page:Harvard Law Review Volume 5.djvu/411

395 THE FAILURE OF THE "TILDEN TRUST. 395 In the one case, where the will of the testator cannot be carried out, equity, by interfering, prevents the unjust enrichment of the trustee at the expense of others better entitled. In the other case, where the will of the testator can be fulfilled, equity, by interfering, defeats his will and thus produces the unjust enrichment of the testator's representative at the expense of the intended beneficiary. In the one case, the impossibility of performing the express trust gives rise to an equitable constructive trust. In the other case, an inequitable constructive trust is what causes the impossi- bility of performing the express trust. Surely a strange perver- sion. It may be said that there can be no trust without a definite cestui que trust. This must be admitted. If, for instance, property is given to A upon trust to convey to such person as he shall think deserving, and A either refuses to convey to any one, or conveys to B as a deserving person, there is, properly speaking, no express trust here. In the one alternative the express trust fails ; in the other alternative Bgets the legal estate. But it does not follow from this admission that such a gift is void. Even though there be no express trust, there is a plain duty imposed upon A to act, and his act runs counter to no principle of public policy. Why then seek to nullify his act ? The only objection that has ever been urged against such a gift is that the court can- not compel A to act if he is unwilling. Is it not a monstrous non sequitur to say that therefore the court will not permit him to act when he is willing ? It may be objected that a devise might in this way become "the mere equivalent of a general power of attorney;" but this objection seems purely rhetorical. Suppose a testator to give A a purely optional power of appointment in favor of any person in the world except himself, with a provision that in default of the exercise of the power the property shall go to the testator's representatives, — or this provision may be omitted altogether, the effect being the same. Such a will is obviously nothing if not the mere equivalent of a general power of attorney. And yet the validity of this power would be unquestioned. If the power is exercised, the appointee takes. If it is not exercised, the testator's representative takes.