a thesis - Institute of Advanced Legal Studies

10 TRUSTS IN GENERAL.
(4) The capacity of any one of the persons beneficially interested
to enforce the obligation.
These may be combined to form a definition, as follows:—
" A trust is an obligation imposed either expressly or by implication
of law whereby the obligor is bound to deal with
property over which he has control for the benefit of certain persons
of whom he may himself be one, and any one of whom may enforce
the obligation."
It is not straining language to speak of a person imposing an
obligation on himself, while it is submitted that the use of the
words " any one of whom may enforce the obligation " sufficiently
marks the distinction between trust and contract; even if the
definition is still wide enough to include a depositum bailment,
such as that in In re Tidd (1893, 3 Ch. 154), it is submitted that
that particular kind of bailment is really a trust and that it is
therefore unobjectionable to call it one. On the other hand, it may
perhaps be objected that it is not wide enough to cover trusts in
which there is no cestui que trust, like a trust for the erection of a
monument, such as that in Mitford v. Reynolds (1848, 16 Sim.
105), or for the care of animals, as in In re Dean (1889, 41 Ch. D.
552) ; it is true that these have been decided to be valid trusts,
although they are not enforceable by anybody. In conflict with
this decision, however, it has been said to be elementary law that
for the creation of a trust there are three requisites—a trustee, a
cestui que trust, and property which one man holds on trust for
another: In re Brooke andFremlirfs Contract (1898,1 Ch. at p. 651).
Such trusts are therefore not trusts in the ordinary sense in which
the term is used by lawyers. The trust so called is only valid in
this sense—that the person who would take if it were not carried
out cannot complain if the trustee does what the settlor has
requested. (Cf. Ashburner, Equity, p. 124.) They may perhaps
be called trusts of imperfect obligation.
There remains one other distinction. A trust may be either
an active trust or a bare trust. The terms special trust and simple
trust are synonymous and are sometimes used, but the former are
preferable, as they have been adopted by the legislature. The
distinction is of " general practical importance," to adopt the
words of Hall, V.-C., in Christie v. Ovington (1875, 1 Ch. D. 279),