a thesis - Institute of Advanced Legal Studies

22 TRUSTS IN GENERAL.
Corporations.—In the early days of the Court of Chancery it
was laid down that a corporation could not be seised of a use, for
it had no soul, and how, then, it was asked, could any confidence
be reposed in it ? But the technical rules upon which this doctrine
proceeded have long ceased to operate in respect of trusts ; and at
the present day every corporation is compellable in equity to
execute a trust. (Lewin, Trusts, 10th ed. 30.) Indeed, there
are several incorporated societies now in existence which have been
established for the purpose of undertaking trusteeships amongst
other things. A corporation cannot, it is true, acquire or hold
land, and therefore cannot be made a trustee of it, without a
license from the crown, under the Mortmain and Charitable Uses
Act, 1888, s. 1; but there are a very great number of exceptions.
A practical difficulty also arises in regard to the appointment
of a corporation as one of several trustees of a will, inasmuch as a
grant of probate cannot be made to a corporation and an individual,
even though both are appointed executors. The court will make
a grant of probate to the individual trustee or trustees, or, if these
decline to take it, will make a grant of letters of administration
with the will annexed to the corporation, but it will not do both.
(In the goods of Martin (1904), 90 L. T. 264.)
Another difficulty which arose out of the rule of the common
law that a corporation could not hold property in joint tenancy has
been recently removed by the Bodies Corporate (Joint Tenancy)
Act, 1899 ; and it has accordingly been decided that there is nothing
to prevent a company registered under the Companies Acts being
appointed a trustee jointly with a natural person, even though the
trust property include real estate, since s. 18 of the Companies Act,
1862, enables such a company to hold land without the license of the
crown. (In re Thompson's Settlement, The Times, 1 Dec. 1904, 3.)
III.—CAPACITY TO BE A BENEFICIARY.
Neither an infant, nor a lunatic, nor a married woman, nor an
alien, nor a convict is now under any incapacity to acquire property
legal or equitable, so that any of them may be made a
beneficiary under a trust. (Lewin, Trusts, 10th ed. 43.)
The only incapacity to take under a trust is in the case of a
corporation, which (exceptions excepted) cannot acquire land as
beneficiary under a trust without the license of the crown to hold it
in mortmain (supra}, and in the case of a charity in whose favour
a trust of land must be made to comply with the provisions of the
Mortmain and Charitable Uses Acts, 1888, 1891, and 1892,
although this last is not strictly a case of incapacity.