for lawful purposes not beneficial to myself"? Now, although it may be difficult to find many reported cases where such a question has arisen, there is a class of decisions directly in point. When a man assigns property to trustees to pay his debts, it is held in England that the creditors acquire no rights, until they consent to the assignment, and that, therefore, the assignment is revocable by the debtor.1

It is true that these cases have not been generally followed in the United States, but this is because it is held in this country that the creditors become cestuis que trust upon the execution of the deed, and have immediately vested rights.2 The test always propounded in these cases is whether the conveyance has been made for the benefit of the settlor, so as to save him from the trouble or care or thought of doing things for himself, in which case it is revocable; or whether it has been made because he wishes to give third persons rights, in which case it is irrevocable.3 Now, when a so-called trust has been created without any cestuis que trust, the purpose of its creation is almost necessarily the former; and, therefore, I believe that it can be revoked by the settlor. I know of no authority to the contrary. At any rate, such a doctrine has nothing unjust or inequitable about it.

The strongest argument against this view is drawn from analogy of powers. Mr. Ames puts it forcibly:

"It may be objected that a devise might in this way become 'the mere equivalent of a general power of attorney'; but this objection seems purely rhetorical. Suppose a testator to give A. a purely optional power of appointment in favor of any person in the world except himself, with a provision that in default of the exercise of the power the property shall go to the testator's representatives, or this provision may be omitted Such a will is obviously nothing

altogether, the effect being the same. if not the mere equivalent of a general power of attorney. And yet the

1 See, for instance, Walwyn v. Coutts, 3 Mer. 707, s. c. 3 Sim. 14; Garrard v. Lauderdale, 3 Sim. 1; 2 R. & M. 451; Acton v. Woodgate, 2 M. & K. 492; Smith v. Keating, 6 C. B. 136; Cornthwaite v. Frith, 4 DeG. & Sm. 552; Johns v. James, 8 Ch. Div. 744; In re Sanders' Trusts, 47 L. J. Ch. 667; In re Ashby, [1892] 1 Q. B. D. 872; Lewin, Trusts (10th ed.), c. 20, sec. 2. The right to revoke such a trust can be exercised after the death of the settlor. Garrard v. Lauderdale, Re Sanders'

Trusts.

2 The cases will be found collected in Burrill on Assignments (6th ed.), §§ 257, 258.

Wilding v. Richards, 1 Coll. 655; Mackinnon v. Stewart, 20 L. J. Ch. 49, 53; Smith v. Hurst, 10 Ha. 30, 47; Johns v. James, 8 Ch. Div. 744, 749, 750; In re Ashby, [1892] 1 Q. B. 872, 877, 878; New's Trustee v. Hunting, [1897] 1 Q. B. 607, 615,

validity of this power would be unquestioned. If the power is exercised, the appointee takes. If it is not exercised, the testator's representative takes.

"Now vary the case by supposing that the testator imposes upon the donee of the power the duty to exercise it. Can the imposition of this duty furnish any reason for a different result? In fact, A., the donee of the power, has in this case also the option of appointing or not, since although he ought to appoint, no one can compel him to do so. Does it not seem a mockery of legal reasoning to say that the court will sanction the exercise of the power where the donee was under no moral obligation to act at all, but will not sanction the appointment where the donee was in honor bound to make it?" 1

Most cases of powers can be readily distinguished, but let us take a case inter vivos similar to that suggested by Mr. Ames.

Land is conveyed to B. in trust for A. for life, on A.'s death as B. shall appoint, save that he must not appoint to or for himself, - and, in default of appointment, the land to revert to the settlor. Here, as Mr. Ames says, we have an irrevocable power in B., and, without doubt, nothing the settlor can do will prevent B.'s making a valid appointment.

Suppose, however, land is settled on A. for life, and then on B. in trust for such persons, other than himself, as he may select. Mr. Ames says there ought to be no difference between this case and the former one, and that though the settlor attempts to revoke B.'s authority, yet B. can go on and make a selection which will be valid.

But, with submission, this is the distinction: The common law allows property to pass from one person to another on any future contingency (provided it is not too remote) and the contingency may be a nomination by a third person. But the common law will not allow a right in personam, an obligation, to be created without two parties. It will not recognize a promisor without a promisee, a contractor without a contractee, or a trustee without a cestui que

trust.

To this, I take it, Mr. Ames would answer: "Granting that there cannot be a trustee without a cestui que trust, and that the settlor has attempted to impose a duty upon B. which cannot be enforced, yet that will not prevent B. from being the donee of an irrevocable power."

But is not the reply this?

It is a matter of intention. Is B. a mandatary of the settlor?

That is, is he an agent of the settlor to act for him and on his behalf? Or is it contemplated that he shall have an independent authority, with power to act against the settlor's wishes and interests? If he is the former, then his mandate is revocable. The law does not allow of irrevocable mandates.1 If he is the latter, then his power is irrevocable.

Now, in the first case supposed above, the case of the power, it is clear that B. is to have an entirely independent authority. The settlor has said how the property shall go, but B. has the right, at his mere will or whim, against every wish or interest of the settlor, to change the direction. This is said plainly on the face of the settlement. There is a definite cestui que trust with a power in B. to substitute another cestui que trust.

In the second of the supposed cases, the case of the trust, the use of the word "trust," the absence of any gift over, the absence of any named person who is to take or who may be deprived of the property, show an intention on the part of the settlor to employ B. as his agent to dispose of the property, and we have here an instance of a mandate. I do not say that this construction of the transaction is required as a logical necessity: but I do say that it is a perfectly reasonable, equitable, and fair construction.

Let us now pass to cases arising after death. Suppose such a trust as we have been considering, where there is no cestui que trust, has been created by settlement, and that the settlor dies. Does the right of revocation survive to the heir or executor? What rights shall survive and what not is matter of rather arbitrary law, but considering the current of legislation and decision, it is safe to say that the present policy of the law is that all rights which concern only property shall survive. Certainly there is nothing inequitable or unjust in such a policy. As noted above, when property has been given to a person in trust to pay creditors, the trust can be revoked after the death of the creator of the trust.2

But the case which ordinarily occurs in practice arises when the trust is created by will. Here there is no question of the survival of an interest which existed before the death of the testator. The trust or mandate and the power of revocation, if it exists, both come into being on the death of the testator. But, both in the settlement and in the will, there is the same attempt to create a

1 Blackstone v. Buttermore, 53 Pa. 266; Walker v. Denison, 86 Ill. 142; Chambers v. Seay, 73 Ala. 372.

2 Garrard v. Lauderdale, 3 Sim. 1; s. c. 2 R. & M. 451; Re Sanders' Trusts, 47 L J. Ch. 667.

legal duty without a legal right, which the law does not allow. It is not the case of the donee of a power where the testator has named a devisee and given a third person the power to substitute another devisee at his own option; but it is the case of a mandate to carry out the wishes of a testator and to act for him instead of his acting for himself. Whether the power of revoking this mandate, as it would exist in the settlor upon a transaction inter vivos, shall exist in the heir or personal representative of the testator, or, in other words, whether a mandate created by will shall be irrevocable, though a mandate created by deed is not, is a matter which might conceivably be decided either way. But the analogy of the law is that any arrangement which gives the settlor certain rights, when it is made inter vivos, will, when it is made by will, give the same rights to the heir or personal representative of the testator. Thus, if land is devised on a condition subsequent, the heir has the right of entry.

The law will not allow a man in his lifetime to create a situation where the legal title is in A. and the beneficial interest is in no one. If such transaction is regarded as a trust, it is void; if it is regarded as a mandate, it is revocable. It is not unjust or against public policy for the law to deny a man the power to create a situation after his death which it denies him the power to create during his life.

It may be said that there is a distinction between the creation of a trust with indefinite cestuis by will and its creation by deed, in this: When such a trust is created inter vivos, no one, except the settlor, has any reason to count on its being carried out, and therefore no one except the settlor has any rights under it; even those who disapprove of the doctrine of Morice v. Bishop of Durham cannot say that its application to settlements is in any way unjust; but the testator does expect that the trust created by his will is to be carried out, and to allow this expectation to be defeated by the action of the heir or next of kin, when the trustee is prepared to carry it out, is unjust. There is nothing unjust in allowing a man to defeat his own schemes, but it is unjust to allow one man's schemes to be defeated by another.

But this, it is submitted, overlooks the fact that there is no injustice in the law restraining, by general rules, the power of a man to say what shall be done with his property after his death. The law does allow a man on his death to transfer to others the rights which he himself has had, but it says that the mandates and agencies which he has given shall cease and that he shall

not create new ones. Agents without a principal, agents whose principal is a dead man, it will not allow, and in this there seems nothing unjust.

I repeat that I am not claiming that the doctrine of Morice v. Bishop of Durham is a legal necessity; but I submit that it is reasonable, equitable, and in accordance with the analogies of the law; and that there is good reason why, as Mr. Ames says, Morice v. Bishop of Durham "has never been directly impeached, either in England or in this country."

To the doctrine of Morice v. Bishop of Durham, there are some real and some supposed exceptions.

I. Charities. Gifts in trust for charitable uses are valid, al. though no definite cestui que trust be named. This is an exception in form only. The State, through the attorney-general, enforces these trusts.

II. Funeral Expenses. From the necessity of the case, an executor or administrator can pay the funeral expenses of the deceased; and although no one can compel him to carry out the directions of the will as to the testator's burial, yet, if he does carry them out, the courts will protect him from claims on the part of heirs, next of kin, or residuary legatees.

III. Monuments. A. Erection. A monument to the deceased or over his grave is esteemed part of his funeral expenses. "It stands on the same footing as an expensive funeral," and (if the rights of creditors are not interfered with) an executor will be allowed to follow the directions of his testator,2 although they be of the most extravagant character. In Detwiller v. Hartman,3 the testator directed his executor "to purchase a burial plot of ground 100 feet square in the Easton cemetery, and cause to be erected thereon a granite monument, the cost not to exceed $50,000 nor less than $40,000." 4

But in a few cases the rule has been extended so as to allow the erection of monuments to persons other than the deceased. When an executor is directed to place monuments on a family burial ground where the testator directs or expects that he will himself be buried, the cost of such erections may come under a liberal interpretation of funeral expenses. Such was the case in

4 Cf. Emans v. Hickman, 12 Hun 425; Bainbridge's Appeal, 97 Pa. 482.