Page:Harvard Law Review Volume 5.djvu/409

THE FAILURE OF THE " TILDE TV TRUST." 393 interest. The use of the words " equitable ownership " and " equit- able estate " is so inveterate among lawyers that we do not always remember that these are figurative rather than exact legal terms. An equitable interest is a right in personam. It implies, of neces- sity, a relation between two persons, known as the trustee and the cestui qui trust. In the case of absolute ownership who is the trustee ? An equitable claim by the owner against himself as the holder of the legal title would be an absurdity. Test the matter in another way. Transfer by intestacy is a true succession. The right of the successor is of precisely the same nature as that of his predecessor. The right of the next of kin, as established by Lord Eldon, was a genuine equitable interest. The next of kin were cestuis que trustent, the bishop was trustee. In other words, the next of kin had a claim against the person of the bishop. But the testator never had any right against the bishop. How, then, any intestacy ? Lord Eldon and Sir William Grant, futhermore, relied greatly upon the case of Brown v. Yeall, 1 where the trust was void as a perpetuity, and their reliance upon this case warrants the belief that the case before them was assimilated, somewhat inconsider- ately, to a distinct class of cases, where decrees in favor of the testator's heir or next of kin are eminently just. And this leads us to a consideration of the true principle by which courts of equity dispose of the beneficial interest in property where an intended trust necessarily fails. If property is conveyed upon trust, and, by some oversight, no beneficiary is designated, or if the beneficiary named is non-existent, or incapable of identification by the trustee, or refuses the gift, or if the trust is for an illegal purpose, the trust must, in the nature of things, fail. The res, which is the subject-matter of the trust, vests, neverthe- less, in the trustee. The courts might, conceivably, as Lord Eldon suggested in Morice v. Bishop of Durham, have allowed the trus- tee to hold the res for his own benefit, discharged of any trust. In fact, however, they have compelled him to hold the property as a trustee for the creator of the express trust, if he is still living, or for his representative, if he is dead. This equitable right, as we 1 7 Ves. 50 n.