Page:Harvard Law Review Volume 5.djvu/413

397 THE FAILURE OF THE "TIED EN TRUST." 397 the testator's representative ; whereas the same court refused tc prevent the trustee under the conveyance inter vivos from per- forming the trust, and decided that the right of the grantor's representative to the trust property was contingent upon the re- fusal of the trustee to perform the trust. The distinction was said to result from the fact that there was a contract in Gilman v. Mc- Ardle. But what difference could the contract make beyond giving a right to sue at law for damages upon its breach ? The duty to perform the trust was as cogent upon the trustee under the will as upon the trustee under the conveyance. In each case, and for the same reasons, the breach of that duty would give rise to an equitable obligation against the trustee to surrender the property which had been given to him upon confidence that he would perform the trust. And in neither case is there any assign- able reason for creating this equitable obligation before any de- fault in the trustee. Although Morice v. Bishop of Durham has never been directly impeached, either in England or this country, there are several groups of cases, undistinguishable from it in principle, in which the equity judges have declined to interfere, at the suit of the next of kin, to prevent the performance of a purely honorary trust. Mussett v. Bingle x is one illustration. The testator bequeathed ^300 upon trust for the erection of a monument to his wife's first husband. It was objected that the trust was purely honorary • that is, that there was no beneficiary to compel its performance. But the trustee being willing to perform, Hall, V.C., sustained the bequest. In the similiar case of Trimmer v. Danby, 2 Kind- ersley, V.C., said : "I do not suppose that there would be any one who could compel the executors to carry out this bequest and raise the monument ; but if . . . the trustees [i.e., the executors] insist upon the trust being executed, my opinion is that this court is bound to see it carried out." There are many American decisions to the same effect. 3 1 w. N. [1876] 170. 2 25 L. J. Ch. 424. See, further, Masters v. Masters, 1 P. Wms. 423; Mellick v. Asylum, Jacob, 180; Limbrey v. Gurr, 6 Mad. 151; Adnam v. Cole, 6 Beav. 353. 8 Gilmer v. Gilmer, 42 Ala. 9; Johnson v. Holifield, 79 Ala. 423, 424; Cleland v. Waters, 19 Ga. 35, 54, 61; Detwiller v. Hartman, 37 N. J. Eq. 347 (a $40,000 monu-