Page:The Green Bag (1889–1914), Volume 19.pdf/769

 728

THE GREEN BAG

LEGISLATION (England). "The Public first place, the public trustee is under a temp Trustee Act, 1906," by J. Andrew Strahan, tation to make his office a success by keeping Law Magazine and Review (V. xxxiii, p. 68). it full of work. In the second, he has no The English Public Trustee Act 1906 which power to order an applicant to pay the costs goes into operation January 1, 1908, creates of administration where, after he has taken a permanent government department charged over the administration, he finds there were no sufficient grounds for his doing so. And with the duty of watching, and, where neces sary or convenient, of undertaking the admin lastly, the likelihood of an appeal against his istration, not merely of express trusts, but of decision is small when the gross value of the the estates of deceased persons. That depart estate is less than £1,000, and the persons ment is embodied in an official called the entitled are of small means, and the success of public trustee, who is created a corporation an appeal is improbable when he is entitled sole with perpetual succession and an official to take over the administration where ' he is of seal. The public trustee has conferred on opinion ' the court would order administration. him extensive powers which he can delegate "Undoubtedly if the public trustee exer to subordinate officers. He has the duties cises rigorously his discretion to refuse to and liabilities of a private trustee, subject to interfere in the administration of small estates, this limitation, that he is not responsible for the powers here given him will do no harm, any such liability which an ordinary trustee and may in many cases prevent the robbery might incur, to which he has not in any way of the poor. If he does not, private dis contributed, and which he could not by the appointment and private malice may lead to exercise of reasonable diligence have averted. the squandering of many small heritages. "The administration of estates by public The Consolidated Fund is answerable for his liabilities. Several provisions of this act are officials is in this country always honest, but criticised by Mr. Strahan, one with special seldom efficient and never cheap. The history of bankruptcy proceedings is enough to prove severity as giving a most arbitrary and dan gerous power to a public official. Where it is that. It is to be hoped that a new era of twoproved to the satisfaction of the public trustee and-sixpence in the pound dividends on that the gross capital value of an estate is legacies is not dawning upon us." less than £1,000, and where it appears to MISTAKE. " Error of Law," by Cony him the persons entitled are persons of small means, he shall (unless he sees good reason to Montague Stadden, Columbia Law Review the contrary) take over the administration of (V. vii, p. 476). This article of forty-three such estate on the application to him to do pages is best commented on by giving the so of any person who, to his opinion, would note by the author. be entitled to apply to the court for an order for administration. This applies not only to "In the discussion of the respective rights ordinary trust estates, but also to the estates of parties to a contract entered into under a of deceased persons. mistaken apprehension as to its legal effect, "Practically, the section gives the public under the English, French and German law. trustee power to take over (and charge the the author has confined himself to ' error of estate with fees for) the administration of law ' rather than to ' error of fact.' His every small estate. It is true that he cannot investigations have been directed toward the do so except on the application of a person depth of the subject rather than toward who, ' in his opinion,' would be entitled to breadth and superficiality. The question of apply for an order of administration. Unless error of law most frequently arises in actions the experience of all chancery lawyers is at for the recovery of money, though not infre fault, he will not have long to wait for such quently for setting aside deeds and wills or an application. That experience is that, but determining rights under them. As the sub for the healthy fear that the applicant to the ject, considered in the light of the law of court might find himself saddled with the England, has been greatly confused and mis costs of administration, three out of four small understood because of the various rules of estates would be thrown into chancery. And pleading, relief having been given, or asked when any beneficiary was entitled as of course for in ' assumpsit,' ' money had and received,' to an order of administration, even that con and by bill in equity to redeem or refund, no sideration was not sufficient to restrain this attempt has been made to indicate the proper practice, and it was found necessary by the forum in which to seek a remedy, or form of rules of the supreme court to give the court a action that would prove most efficacious in discretion to refuse orders. It may be said any particular case. Whether a contract is that the public trustee has the same discre voidable, or void on account of such error in tion, and that under sect. 10 there is an appeal France and Germany is to be determined by • against any decision of his to the court. But the civil code obtaining in each country. In it is well to remember three things. In the reference to the law of England, where pre