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ART. I.--PUBLIC TRUSTEESHIPS.
YHANCERY Reform is the popular cry of the day; it has
already worked some valuable amendments in the jurisdiction of equity, and promises wholesome alterations for the future. The abuses complained of are confessedly numerous and flagrant, but it is not wonderful, when litigation is instigated by some of the worst passions of the human heart, that its instruments, Law and Lawyers, should themselves be occasionally defiled by the contact. Where the source is so impure and the stream so polluted, some allowance must be made for the state of the channel through which it flows. Reformers have hitherto rather followed the rivulets than sought the fountain-head of abuses; consequently theirs has been a labour of cure rather than of
prevention. Instead of directing their efforts to the diminution of the subject matter of equitable interference, they have laboured in the improvement of its administrative system. The object of the following proposal, on the contrary, is to ameliorate the Court of Chancery by removing from it altogether a vast amount of its most vexatious and merely formal business, instead of solely providing for its negotiation when there. The measure proposed not being retrospective or imperative, but only prospective and optional in its operation, propitiates in limine those “vested interests” generally so inimical to any innovation. It also possesses, as will be seen, the no mean recommendation of being self-supporting.
It is well known, that by far the greater portion of the jurisdiction of the Court of Chancery is based on the system of trusts : and that the definition and enforcement of the reciprocal rights and duties of trustees and cestuis que trusts form the most important item of its functions. The one branch alone of trusts by express declaration, without reference to the various ramifications of trusts by operation of law, is quite sufficient to justify this allegation. It is also equally notorious that the fiduciary relation of trustee or cestui que trust becomes applicable to almost every possessor of property at some period or other of
VOL. XV. NO. XXIX.
con, ed, whention can het perforan scarcely dangepiness of the
his life. It is a universal social compact, regulating our dearest interests, which all good citizens are obliged to enter into, and on the due performance of which depends the happiness of the whole community. The unthankfulness and danger of the office of trustee is proverbial, and it can scarcely be otherwise, when nothing less than the exact performance of the trust is expected, and no expectation can be more Utopian. This may easily be conceived, when it is understood, to adopt the language of Lord Bacon, that for the private conscience of the trustee the general conscience of the realm, which is Chancery, is required to be substituted, and when also the extent and profundity of the science of equitable jurisprudence, which constitutes that recorded conscience, is duly taken into account. Under the present method conventional requirement imposes an unsatisfactory obligation on all parties concerned. The testator or settlor is aware that he subjects his friend to an unremunerative and perilous burden, and that the representative of that friend in whom the trust may finally vest may be as unprincipled as the friend himself is honourable. Again, the friend, although perfectly satisfied of the good faith of his present cestuis que trusts, cannot ensure that of the next generation. And if mutual amity be not preserved, where is the administration of a trust in which some flaw may not be found ? In a multitude of cases the trustee or executor has alone the invidious choice of throwing the estate into chancery, or fettering himself and family with liabilities. He is offered the melancholy alternative of ruining his own or his testator's family. Some idea may be formed of the effect of the paternal care of the court on a small property by the fact, that an estate now in chancery, worth 80001. per annum, costs yearly about 20001. for management. Altogether the subsisting system results in this, that a man whose days have been rendered weary and nights sleepless to obtain a provision for a helpless family, on his death-bed finds the enjoyment of his hard earnings secured to them on no greater certainty than the infallibility of friends, or the costly integrity of the Court of Chancery. Truly a happy reflection to smooth the pillow of one who would be at peace with himself and the world! The foregoing is merely a very cursory allusion to a few of the inconveniences which accompany that personal confidence termed a trust, as more especially annexed to the person and acts of the trustee himself. A ponderous volume might be written on the difficulties attending the very nature of trust property itself, as in its vesting and transition, difficulties which in a number of instances can only be remedied by the court. In evidence of this, we need only mention the Trustee Act of 1850 and its precursors, commonly known as Sir E. Sugden's Acts.
The proposition hereby offered as a reparation of the majority of these evils is simply as follows. Let district public trustees and executors be named throughout the country. The commissioners of bankruptcy or county court judges afford exponents convenient of adaptation for the purposes of the experiment. Let every cautious man making a will or settlement have the option of appointing the district officer trustee and executor, or trustee thereof. By virtue of this appointment, the property might then either vest absolutely in the appointee as effectually as a bankrupt's assets now vest in his official assignee, with all requisite powers of management, or be left to the ordinary alienation and limitation of the will or conveyance. It is opined, that the latter course would be most practical and least subversive of established custom. The public trustee would then be invested with certain powers and liable to certain duties, in the same manner as a common trustee. Discretions might be given and reserved to third persons, as to the wife, the protector of the settlement, just as is now done; but the public officer should not be embarrassed with a co-trustee in estate. It would be very desirable however, from abundance of caution, that some person should be appointed, whose signature with that of the public trustee should be indispensable to make a title to any species of trust property which passes by mere delivery. Thus in variations of investments such a joint receipt would be clearly a beneficial preservative from the unrestrained disposal of the public trustee. But where the trust was of realty there could be no reason for such a precaution; for to make a way with a landed estate surreptitiously by a successful fraud would be next to impossible, since the hands it came from would be primâ facie evidence of notice against the purchaser. This protective trustee, as he might be called, would be no further concerned in the administration of the trust, than in seeing that the trust personalty was received or invested. Beyond that, he would not acquire the slightest authority or incur the least responsibility. His function would be purely ministerial and controlled by the will of the public trustee. As a matter of course there should be an adequate power limited for the change and new appointment of these protective trustees. When a public trustee died or was removed from his office, his successor should stand possessed of the trust property upon the then remaining trusts of the original instrument in as full and ample a manner as his predecessor, without the expensive formalities of a new set of conveyances. An indorsement officially stamped on the first deed or deeds, stating the new appointment, 'should be deemed sufficient to carry on the title. The public trustee would be an officer of the court who would be regularly accredited and empowered as fully as a Master in Chancery. In the general administration of the trusts he would act independently; he would have liberty to examine upon oath for the acquirement of necessary information, and would in ordinary routine decide thereon, subject of course to appeal. If, indeed, any novelty should arise, any important question of construction, or of contested rights, where he had not the light of precedents to guide him, he would be bound from himself to submit it to the more competent tribunal of one of the courts of chancery. This submission for adjudication, his professional education and experience would enable him to put in the form of an exact statement or special case, precisely displaying the points in issue. This statement should be received as of equal authenticity with a master's report and disputed in like way by exceptions. In a great number of instances there would not be any contention, but the opinion of the court would be sought merely to satisfy the mind of the public trustee. For the avoidance of carelessness or inefficiency in these trustees, the Chancellor might be enabled to mulct them in exemplary costs when properly justified by condemnatory circumstances. The expenses of this state trusteeship could be met by the deduction of a small per-centage on the estates administered. Usual charges attending the performance of trusts, as for money really expended, or work and labour done, might of course be made the subject of a taxed bill.
So much for the scheme itself, in which the writer knows not whether there be any originality, though he can scarcely believe in the fortune of striking out a new path in a route where there have been so many wayfarers before him. He will now proceed with more particularity to mention some of the most potent defects of the present organization of trusts, which would be clearly remedied by the suggested change.
At the very inception of a trust the nominated trustee is involved in a snare; for, although dissentient, he may suddenly discover himself oppressed with a load he will most likely have to carry to the grave, and finally leave behind him as a legacy of annoyance and litigation to his children. Some trifling act of assistance to the bereaved family of his testator, dictated by compassion, or even an intended niovement of avoidance, will be constituted by the court into an acceptance of the trust; and the poor man becomes a victim for the rest of his days to the horrors of impending equity, in comparison with which the sword of Damocles were happiness. Certainly, the form of disclaimer is now settled which will release from liability, provided always there have not been any ambiguous actings previously. But some persons do not consider it safe or pleasant to meddle with “ the skin of an innocent lamb” on slight provocation. The writer remembers a case in chambers in which two trustees unequivocally refused either to act or disclaim. Some family quarrel had taken place, the malcontents were Welchmen,-were farmers, and relatives of the parties interested ; facts which will give some notion of the virulence and obstinacy displayed. The matter was not worth going to law about, so at last, an estate was sold at a reduced value from the consequent defect in the title, and a learned conveyancer repaired the trust breach as best he might. It will be seen froni the following case, that a seeming and designed repudiation may be construed by equity into an acceptance; that acting under counsel's opinion is no extenuation, whatever the conflict of authorities; and that no astuteness short of a spirit of prophecy will suffice to preserve the unfortunate nominee to a confidence. (Wich v. Walker, 3 My. & Cr. 706.) Here a testator gave a legacy of 11001. to two persons, upon certain trusts for the benefit of his daughter and her children ; and then gave a messuage to the same persons, upon trust for his widow for her life, and, after her decease, upon trust to convey the same to his grandson on his attaining the age of 21. He appointed his widow sole executrix. When the widow died the grandson had attained his majority. The trustees never acted in the trusts. They were solicited by the grandson to make over the messuage to him, and being advised by counsel, that a conveyance might be safely executed by them without constituting an acceptance of the trusts of the will, they by a deed, reciting the will, the death of the widow, and the majority of the grandson in her lifetime," whereby it became unnecessary for them to act in the trusts declared by the will, and in fact they never intermeddled therein, but inasmuch as the legal estate in the said messuage was still outstanding in them, they had consented, at the request of the grandson, to convey such estate to him,”-conveyed the devised messuage to the said grandson. A bill was filed by the parties interested in the legacy of 11001., which prayed an account against the personal representatives of the widow, and further sought to make the then surviving trustee personally liable to make good the legacy in question with interest, on the ground that he had accepted the trusts of the testator's will. It was held by the Vice-Chancellor, and affirmed on appeal by Lord Cottenham, that the execution of the deed was sufficient evidence of acceptance of the trust, and constituted the surviving trustee liable for any default by the widow executrix deceased or her representatives. This equitable iniquity was perpetrated in despite of the dicta of no less a judge than Lord Eldon, in Nicholson v. Wordsworth, 2 Swan. ; and which probably influenced the opinion of the trus