Page:Harvard Law Review Volume 5.djvu/417

401 THE FAILURE OF THE " TILDEN TRUST." 4OI 110 municipal law forbidding it, the testator can certainly make such a law for himself in his will, and the same reason exists why the executor should carry it into effect as why he should erect a monument or tombstone if so directed by the testator's will. It will not be disputed. . . that it would be the duty of the executor to carry such direction into effect, and that he would be sustained by a court of justice in so doing. . . . Yet it could not be said that the tombstone had any right in the prem- ises, or perhaps that any remedy lay against the executors, by which the erection of the stone could be enforced." The true doctrine is nowhere better stated than by Buckner, C.j in Ross v. Duncan i 1 " The ground was taken that, as the ne- groes for whose benefit the trust was raised can maintain no suit in our courts to enforce it, and there being no one who can en- force it, the trust is void. The conclusion does not necessarily follow from the premises. A trust may be created which may be perfectly consistent with the law, and yet the law may have pointed out no mode of enforcement ; still it would not interfere to prevent it, but would leave its execution to the voluntary action of the trustee. A person may convey his property upon what trust or condition he pleases, so that it be not against law ; and the court would only interfere at the instance of the heirs or dis- tributees of the grantor or testator when there had been a failure or refusal to perform the condition or trust." Whether, then, Morice v. Bishop of Durham be considered from the point of view of principle, or in the light of the subse- quent adverse decisions, it seems clear that Lord Eldon's opinion ought not to be followed unless by courts irrevocably bound by their own precedents. Unfortunately the New York Court of Appeals was thus hampered when the Tilden case came before it. In Holland v. Alcock, 2 the point had been taken, but without suc- cess, that the trustee, though not compellable to perform an honorary trust, should not be prevented from doing so. We must believe that no one of the numerous authorities in support of this position was brought to the attention of the court in that 1 Freem Ch. (Miss.) 587, 603. 8 108 N. Y. 312.