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4 TRUSTS IN GENERAL. ficial interest in, or a beneficial ownership of, real or personal property, unattended with the [possessory and] legal ownership thereof." This definition is attributed by Snell, H. A. Smith, and Underhill, erroneously, it would seem, to Mr. Spence (at any rate, it is not to be found at 2 Sp. 875, cited by them). It appears to have been either devised by Judge Smith, or to have been adapted by him from Mr. Justice Story, and is subject to the same criticism as the definition of the latter. The Draft Civil Code of the State of New York (1865) defines a trust as follows:—§1167, "A trust is either (1) voluntary, or (2) involuntary." § 1168, " A voluntary trust is an obligation arising out of a personal confidence reposed in and voluntarily accepted by one for the benefit of another." §1169, "An involuntary trust is one which is created by operation of law." This short definition fails to mark the fact that a trust is concerned with property merely, and it seems to imply that the trustee must be somebody other than the creator of the trust, and that the trustee cannot himself be a beneficiary. Hr. Watson (1873, Compendium of Equity, 2nd ed. 959).—"A trust may be described generally as an obligation affecting property legally vested in one or more (the trustee or trustees), which obligation he is or they are bound to perform, wholly or partially for the benefit of another or others (the cestui que trust or cestnis que trust) in whom the equitable estate is vested." Mr. Watson's definition is a distinct advance on the efforts of earlier text-book writers, but is subject to the objection that the trustee is not necessarily the legal owner of the trust property ; he may, for example, be trustee of a mere equity, like an equity of redemption or an equitable interest arising under another trust. (See Underhill's Trusts and Trustees, 6th ed. 3.) It is also silent as to the difference between express and implied or constructive trusts. Mr. IL A. Smith (1882, Equity, 2nd ed. 23).—"A trust is rather a duty deemed in equity to rest on the conscience of a legal
DEFINITION OF A TEUST. 5 owner. This duty may be either passive, such as to allow the beneficial ownership to be enjoyed by some other person named the cestui que trust, in which case the legal owner is styled a bare trustee; or it may be some active duty, such as to sell or to administer for the benefit of some other person or persons; such as the duties of a trustee in bankruptcy." The objection to this is that it is at once too wide and too narrow. Too wide because it would be almost if not quite as good a definition of any other equitable obligation ; and too narrow because, as shown above, a person may be a trustee without being the legal owner of property. The introduction of the word " duty " is also open to objection. (See Anson on Contracts, 8th ed. 6.) The Indian Trusts Act, 1882, § 3.—" A trust is an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner." This statutory definition is interesting, but was framed, of course, with special reference to the law of India, and is not entirely suitable to English law. It omits to take account, for instance, of the fact that the author of the trust may be himself the trustee, and does not pretend to cover implied or constructive trusts, which indeed are separately dealt with in later sections of the act. Mr. Underhitt (1888, Trusts and Trustees, 4th ed. 1).—"A trust is an equitable obligation, either expressly undertaken or constructively imposed by the court, under which the obligor (who is called a trustee) is bound to deal with certain property over which he has control (and which is called the trust property) for the benefit of certain persons (who are called the beneficiaries or cestuis que trust], of whom he may or may not himself be one." Mr. UnderhilPs is undoubtedly the best definition yet given, but even his is not beyond criticism. It is not satisfactory, for example, in an analytical definition to insist on the fact that the obligation is " equitable." The fact that trusts were enforceable only in courts of equity and not in courts of law is in this country a matter of history merely, and cannot at the present
Page 2: UNIVERSITY OF LONDON INSTITUTE OF A
Page 7 and 8: A THESIS UPON THE DEFINITION, CLASS
Page 9 and 10: TABLE OF CONTENTS. PAOK INTRODUCTOR
Page 11 and 12: INTRODUCTORY. THE term "trust" has
Page 13 and 14: Part L—TBUSTS IN GENEBAL. CHAPTEE
Page 15: DEFINITION OF A TRUST. 3 active or
Page 19 and 20: DEFINITION OF A TEUST. 7 Mr. Justic
Page 21 and 22: DEFINITION OF A TRUST. 9 courts the
Page 23 and 24: DEFINITION OF A TRUST. 11 since the
Page 25 and 26: CLASSIFICATION OF TRUSTS. 13 constr
Page 27 and 28: CAPACITY OF PARTIES. 15 CHAPTEE III
Page 29 and 30: CAPACITY OF PARTIES. 17 The sanctio
Page 31 and 32: CAPACITY OF PARTIES. 19 party to it
Page 33 and 34: CAPACITY OF PARTIES. 21 Lunacy also
Page 35 and 36: THE TRUST PROPERTY. 23 CHAPTER IV.
Page 37 and 38: THE TRUST PROPERTY. 25 expectancy o
Page 39 and 40: CREATION OF EXPRESS TRUSTS OF LAND.
Page 41 and 42: CREATION OF OTHER EXPRESS TRUSTS. 2
Page 49 and 50: RULES DETERMINING INTENTION TO CREA
Page 65 and 66: ENFORCEABILITY OF EXPRESS TRUSTS. 5
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ENFOECEABILITY OF EXPRESS TRUSTS. 5
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ENFORCEABILITY OF EXPRESS TRUSTS. 5
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ENFORCEABILITY OF EXPRESS TRUSTS. 5
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DISCLAIMER OF EXPRESS TRUST, 61 CHA
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DISCLAIMER OF EXPRESS TRUST. 63 hav
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CONSTRUCTION OF EXPRESS TRUSTS. 65
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CONSTRUCTION OF EXPEESS TRUSTS. 71
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INVALIDATING CAUSES. 75 CHAPTER XI.
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INVALIDATING CAUSES. 77 Guardian an
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INVALIDATING CAUSES. 79 upon good (
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INVALIDATING CAUSES. 81 ment is not
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INVALIDATING CAUSES. 83 UNLAWFUL PU
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INVALIDATING CAUSES. 85 7. Testator
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INVALIDATING CAUSES. 87 Immoral Tru
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RESULTING TRUSTS. 89 Part IIL—IMP
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RESULTING TRUSTS. 91 to give the tr
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RESULTING TRUSTS. 93 satisfied with
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RESULTING TRUSTS. 95 tion of A.'s e
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RESULTING TRUSTS. 97 or successive,
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RESULTING TRUSTS. 99 4. Copyhold la
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RESULTING TRUSTS. 101 Lastly, if A.
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RESULTING TRUSTS. 103 It does not s
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RESULTING TRUSTS. 105 CHAPTER XV.
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CONSTRUCTIVE TRUSTS. 107 B.—Const
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CONSTRUCTIVE TRUSTS. 109 quences of
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CONSTRUCTIVE TRUSTS. Ill (1857), 8
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CONSTRUCTIVE TRUSTS. 113 40 Ch. D.
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CONSTRUCTIVE TRUSTS. 115 4. A. and
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CONSTRUCTIVE TRUSTS. 117 The follow
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