A DIGEST DE OF THE LAW RELATING TO PRIVATE TRUSTS AND TRUSTEES. BY WALTER GRAY HART, LL.D. LONDON: THE "LAW NOTES" PUBLISHING OFFICES, 25 & 26, CHANCERY LANE, W.C. PREFACE. THIS book contains the materials on which the Trusts Bill, 1908, to codify the law relating to private trusts and trustees, was based. Were any evidence necessary of the importance to the lay public of this branch of the English law, it would be sufficient to refer to the report of the Select Committee of the House of Commons appointed in 1895 to ascertain whether further legislative enactment might be made for securing the adequate administration of private trusts. The committee estimated that no less than a twentieth part of the whole capitalised value of property, real and personal, comprising the wealth of the United Kingdom, was held on trust. Taking the capitalised value of that property as then estimated by the Treasury to be between nine and ten thousand million pounds-and the figures have certainly not decreased in the interval-this gives a sum of nearly five hundred millions sterling held upon trust. Whether these figures are accurate or not, there is no doubt that thousands of people in this country are at the present moment trustees: still larger numbers are beneficiaries. almost everyone who has any property at all is at some time of his or her life concerned, in the one capacity or the other, with this branch of the law. The law relating to this system is now for the most part settled, and, having regard to modern amendments, seems in substance satisfactory enough, but in the form of its expression, like so many other branches of the English law, it is of the most chaotic description. Slowly evolved generation by generation, its principles and rules lie embedded in countless reported decisions of the courts from the time of the Year Books to the present, the effect of which has from time to time been modified, amended, and extended by a large number of acts of parliament passed chiefly during the last seventy years. In such a state of the law it is not to be wondered at that the lay trustee should often err from ignorance of his obligations. Even the lawyer can easily go wrong. A distinguished member of the Chancery Bar, lecturing on the duties and liabilities of trustees some time since, gave an apt illustration of this:-"Towards the end of last sittings," he said, "and almost at the close of a case relating to trustees then being tried in the Chancery Division, it became apparent from an observation made from the bench that all the four counsel engaged in the case, learned and experienced men as they were, had not considered the provisions of the most recent Trustee Act, that of 1894, though such provisions bore directly upon the subject-matter" (a). It is not to be wondered at when the law, to use the lecturer's phrase, "lurks in volumes of reports to be counted by hundreds or lies buried, but with a hideous power of inopportune resurrection, in some partially repealed statute." For this state of things the only remedy is codification, and the law of trusts seems to have arrived at a (a) Birrell, “Duties and Liabilities of Trustees," 3. stage at which it might with advantage be stated in the form of a code of the type of the Bills of Exchange Act, 1882, the Partnership Act, 1890, the Sale of Goods Act, 1882, and the Marine Insurance Act, 1906. The manner in which these acts have codified the law with which they deal is to reproduce as exactly as possible in statutory form the principal rules of the existing law without attempting any amendment, save in respect of a few matters of uncontroversial character, in which amendment was feasible without raising opposition, and the success which has attended them seems to have disposed, by the test of practical experience, of the arguments advanced against the system, so far as they are applicable to codification of this kind. A useful aid to the preparation of a code of trusts law of this kind is to be found in the Indian Trusts Act, 1882, which, although framed with a view to the requirements of India, and differing in some respects from English law, is, nevertheless, admittedly based on the latter (b). The belief that a code of trusts law would be of value to laymen led the writer to make the attempt to draft a bill on similar lines to those above mentioned. The bill was introduced in the House of Commons by Mr. Athelstan Rendall in 1907, but no opportunity was obtained of proceeding with it. It was, however, re-introduced in the following session, and was read a second time on March 11th, 1908, and referred to a Select Committee, consisting of Mr. W. Phipson Beale, K.C. (Chairman), Mr. Clancy, Mr. Cave, K.C., Dr. Hazel, Mr. J. W. Hills, Mr. Micklem, K.C., Mr. John (b) See Dr. Whiteley Stokes' "Introduction to the Act in the AngloIndian Codes" (Clarendon Press), Vol. I. |