« EelmineJätka »
tee's professional adviser. Lord Eldon there said, "My opinion is, that if a person who is appointed co-trustee by any instrument, executes no other act than a conveyance to his co-trustees, when the meaning and intent of that conveyance is disclaimer, the distinction is not sufficiently broad for the court to act upon. I can find no case which has decided, nor can I find any reason for deciding, that where the intent of the release is disclaimer, the inference that the releasor has accepted the estate shall prevent the effect of it.” An unlearned person would naturally imagine that a chancellor was not obliged to stand on logical or legal exactness, and that although in strictness a conveyance implied an estate to convey, yet that the expressed intention would have bad primary weight in a court of conscience.
Suppose the pons assinorum crossed, and the trustee and executor in full undoubted possession of all the dignity of his newly assumed capacity. His first duty will be to get in as expeditiously as possible the assets of his testator; a duty sometimes modified by special directions. An omission in the due realization of the property; ignorance of what securities should be left outstanding and what called in, will be treated as crimes, and visited severely with equitable pains and penalties. Should there be a power of sale, to ensure a valid execution, its terms must be pursued with the greatest exactitude. Some powers of sale will be lost by the disclaimer or death of a co-trustee; and questions on the ability of a trustee to give good receipts for the purchase money, may be determined by the intention of the testator, presumed from minute circumstances of the state of the cestuis que trusts, or the specialty of the trust itself. The trustee will next perhaps have to grapple with the legal niceties of marshalling assets, of repetition of legacies, or of satisfaction. In the latter he will perchance learn to discriminate between a testator's regard for his child and his creditor. He will find that a trifling difference in the debt and legacy will, in favour of a creditor, rebut the presumption of satisfaction, but that the most palpable distinctions between a portion and legacy will not suffice to give the child the benefit of the testator's bounty. He will be told that the perfection of reason imputes to the parent a ridiculous act of supererogation, a double donation of the same subject, rather than admit the possibility of bis wishing to be more generous to one child than to another. To quicken the trustee's inspiration in his new study, he will be also informed that the smallest mistake in the distribution of the estate will be at his own peril. Assumed that he is prudent and has engaged professional assistance at the outset. Still, solicitors are not omniscient, cases for counsel do not always contain an impartial exposition of facts, nor are counsel themselves infallible. And eventually should all go smoothly as a marriage peal, the learned who make this sweet harmony must be well paid for their trouble.
The perplexities of immediate distribution being overcome, probably the next pressing duty will be that of investment. Losses accruing from any delay, any momentary neglect, or any mistake in the application of the funds, will fall upon the unconscious trustee with all the fell malignity of a bill for an account. If there are renewable leaseholds, he must invest to meet the fines for renewal, and adjust the almost inappreciable proportions of cost between tenant for life and remainder-man. Then again no matter how available a security offers, the three per cent. consols alone will hold him harmless. Should he be weak enough to confide in his knowledge of plain English, he will possibly have to pay dearly for his vain self-reliance. For example, it is decided that an authority to lend on such personal security as trustees shall think sufficient, will not justify a loan to the busband of a cestui que trust who is in trade, or indeed to any trading concern. No allowance is made for human sympathies. Lord Langdale, in Fyler v. Fyler (3 Beav.) remarked, “Cases which are very painful are not unfrequent in “this court; we find a married woman throwing herself at the
trustee, begging and entreating him to advance a sum of money “out of the trust fund to save her husband and her family from “utter ruin, and making out a most plausible case for that pur
pose. His compassionate feelings are worked upon, he raises " and advances the money; the object for which it was given en“ tirely fails, the husband becomes a bankrupt, and in a few “ months afterwards the very same woman, who induced the “ trustee to do this, files a bill in a court of equity to compel “ him to make good that loss to the trust. These are cases “ which happen. They shock every one's feelings at the time; “ but it is necessary that relief should be given in such cases, “ for if relief were not given, and if such rights were not dis“ tinctly maintained, no such thing as a trust would ever be pres served. The conclusion is most true, but it affords no reason why there should be an imposition on society which incurs so severe a contest between duty and benevolence.
The maintenance, education, and advancement of infants affords constant work for Chancery. In minor cases the court grants such assistance upon petition; but should the magnitude of the income warrant the expense, a bill is filed, succeeded by its beautiful continuity of process. An express power of maintenance at the discretion of trustees will not authorize them to advance for that purpose in the lifetime of the parents without the sanction of the court. Chancery will have a bite at the oyster. Even where the parent has been proved too poor to support the infant and maintenance accordingly allowed, the repayment of former outlays on that account was not suffered. (Ex parte Bond, 2 My. & K.)
Keeping up a trusteeship by the appointment of new trustees in the place of those deceased or desirous of retiring, and by vesting the property effectually in the continuing and new trustees as joint tenants, is one of the most technical and expensive operations of conveyancing. The smallest oversight leads sometimes to incalculable and fatal confusion. A word out of its place in the power of appointment, a slight slip of the ingrosser's pen, or the attorney's eye, may nullify every attempt at rectification. The least variation from the usual form necessitates the conveyancer's most anxious attention. Say, that a power of new appointment is limited to a “surviving or continuing trustee." It is thought by the erudite superstitious, that a surviving trustee should not appoint two trustees in the place of himself and the deceased trustee, but first appoint a person in the rooin of the deceased trustee, and then the person so substituted may, as continuing trustee, appoint a new trustee in the place of the one desirous of retiring. When there are many different kinds of trust property the ingenuity of the draftsman is taxed to the utmost. Where the property is realty, settled to uses, there must be a revocation, a conveyance to a provisional trustee, and a re-conveyance by such provisional trustee to the remaining and newly appointed trustees upon the old uses. Personalty always demands an assignment and re-assignment to obtain a joint-tenancy in the continuing and new trustees. Besides all this double toil and trouble, the retiring trustees will probably want voluminous releases. It may be that the trust has not the felicity of a power to change and renew trustees, or that it is destroyed by some inadvertency, when recourse to Chancery is inevitable. It also frequently happens that a trustee is lunatic, is an infant, or is contumacious, that he is out of the jurisdiction, that it is unknown whether he be living or dead, or which is the surviving trustee, or whether the surviving trustee left a heir or devisee, in all which events a Chancery process must ensue.
Now on the hypothesis that a trustee has scrupulously ful. filled his trust, and retires with a due release, and with the united thanks of his cestuis que trusts,- is he to be considered free from future danger ? The well known case of Knatchbull v. Fearnhead (3 My. & Cr.) directly manifests the contrary. There a breach of trust took place in the years 1801 and 1804 re
spectively. The two trustees implicated therein died, one in 1814 and the other in 1824. The suit was instituted in 1833 to charge the personal representatives of the trustees deceased with the loss consequent on the alleged breach of trust. The executors of one trustee admitted in their answer the receipt of sufficient assets, and stated that they were wholly ignorant of the existence of any such trust as in the bill alleged until 1830, and that they had accordingly administered the estate of their testator, and finally divided the residue among the residuary legatees. Notwithstanding their total want of knowledge, not only of the breach but of the very trust itself, they were held liable to make good the loss, occasioned by the misfeazance of their testator, out of their own proper monies, and the Chancellor laid it down, that a trustee and executor, who pays away residue without passing his accounts in the court, does so at his own risk.
In all that has been before adduced we have given the trustee credit for good faith and right intentions. If he be dishonest and of evil intent his powers of malversation are unlimited. He may spoliate to any extent by wilful default or fraudulent alienation. He may freely appropriate the trust personalty to his own use, and convert the realty to personalty for a similar design. A person purchasing a trust estate with full notice of the fraud may make a good title to a purchaser from himself without notice and mutatis mutandis. He may collude with a profligate husband or unnatural father in cheating the wife and children out of their lawful provision. And when the cestuis que trusts become capable and desirous of seeking redress for their wrongs, their remedy is a suit in Chancery and the personal responsibility of an insolvent trustee-a ruinous superannuated justice, and tardy restitution of—“no effects.
Enough has now been said, it is hoped, to demonstrate the deficiencies both in principle and in expediency of the present structure of trusts. The institution of a public trusteeship would meet all the evils impeached. The commencement of a trust would be unequivocal and its transmission simple and inexpensive. Its multifarious duties would be performed with regularity by an experienced and unprejudiced person. The trust property would be guaranteed from waste and misappropriation. Family feuds would cease for want of a ground of contention, and in conclusion the Court of Chancery would be relieved of a vast quantity of scandalous and contemptible business, calculated to bring discredit on any judicial system.
T. W. L.
ART. II.-THE LIABILITIES IN THIS COUNTRY OF
miwo decisions have very recently been made by the Court of
1 Queen's Bench, which involve matter of so much importance to merchants and others having dealings of any kind with foreign crowned heads, as well as interest to the profession, both from their bearing on that subject and upon questions of the extent and nature of the custom of proceeding by way of foreign attachment in the ancient courts of the city of London, that we hasten to lay before our readers some observations on the law therein laid down. Judgment in both these cases was delivered on the 28th of May last. The short statement of the first of them is as follows.1 Some time ago the present Queen of Portugal's government took possession of certain monies of A., then in the hands of his banker at Lisbon. A., finding that the Queen of Portugal has a sum of money in the hands of B., within the city of London, attaches the last-mentioned sum by means of the usual process of foreign attachment, issuing out of the Lord Mayor's Court. The queen moves for a prohibition, and the questions made are, whether the goods of a sovereign prince are liable to this process, and whether such process is available at all where the cause in the first instance arises out of the jurisdiction? The Court of Queen's Bench have decided both questions in the negative, relying in the first instance partly on the statute 7 Anne, c. 12, making void from the date thereof all process whereby the person of any ambassador, or of his domestic servant, may be arrested or his goods distrained or seized; and making all persons prosecuting, soliciting or executing such process violators of the law of nations and disturbers of the public repose, and subjecting them to such penalties and corporal punishment as the Lord Chancellor and the two Chief Justices, or any two of them, shall think fit; and partly on the circumstances attending the passing of that statute, which are thus treated in the judgment. “On the occasion of the outrage (the arrest for debt of the Russian ambassador) which gave rise to that statute, Lord Holt was present as a privy councillor to advise the government as to the fit steps to be taken, and with his sanction seventeen persons, who had been concerned in arresting the ambassador, were con
"De Haber v. Queen of Portugal.