audited annually, and a report thereon made to the court, which
has power to order inquiries into transactions connected with the
administration of the trust. A judicial trustee may be required
to give security, and in any case has to keep the trust account with
a bank approved by the court, and deposit title-deeds and other
documents of title in such custody as the court directs. Communications
between judicial trustees and the court with reference to their
duties are permitted to be made with little or no formality, and
strict proof of facts may be waived in proper cases. The act may,
in short, be described as an attempt to provide for an official check
upon the administration of trusts, while avoiding the formality and
expense incident to the procedure in an administration action.
Public Trustee.—A step further was taken by the Public Trustee Act 1906, which established the office of public trustee. By the act he is a corporation sole, with perpetual succession and an official seal and may sue and be sued under his official title. He may, if he thinks fit, act in the administration of estates of small value; as custodian trustee, or as an ordinary trustee; he may be appointed a judicial trustee, or administrator of a convict’s property. The law of trusts generally is applicable to him and he can act either alone or jointly with other persons. He has an absolute discretion as to whether he will accept or not any trust, but cannot decline acceptance on the ground only of the small value of the trust property. He cannot accept any trust which involves the management or carrying on of a business, except in certain cases authorized under rules appended to the act. He cannot accept a trust under a deed of arrangement for the benefit of creditors, nor of an insolvent estate, nor one exclusively for religious or charitable purposes. His powers and duties are dealt with by the act under three headings: (1) In the administration of small estates.—On the application of any person entitled to apply to the court (i.e. the High Court, and as respects trusts within its jurisdiction, the county court) for an order for administration of any estate, the gross value of which is proved to the satisfaction of the public trustee to be less than £1000, he may administer the estate, and must do so if the persons beneficially entitled are persons of small means, unless he sees good reason for refusing. By declaration in writing signed and sealed by him the trust property other than stock vests in him, and the right to transfer or call for the transfer of any stock forming part of the estate, provided that he does not exercise the right of himself transferring stock without the leave of the court; this general provision also does not apply to copyhold, in respect of which he has the same powers to convey them as if he had been appointed under s. 33 of the Trustee Act 1893. Power is given to the court to order, for reasons of economy, that an estate being administered by the court be administered by the public trustee. (2) As custodian trustee.—The public trustee, if he consents to act, may be appointed custodian trustee on an application to the court, or by the testator, settlor or other creator of any trust or by a person having power to appoint new trustees. When he is so appointed the trust property is transferred to him as if he were the sole trustee, but the management of the trust property and any discretionary power remain vested in the other trustees. His relations with the managing trustees are further defined by the act. (3) As an ordinary trustee.—The public trustee may be appointed trustee, executor, &c., of any will or settlement or instrument of any date either under his official title or other sufficient designation. In a will a sentence to the following effect would be sufficient. “I appoint the Public Trustee executor and trustee of this my will.” Where the public trustee has been appointed a trustee of any trust, a co-trustee may retire from the trust under s. 11 of the Public Trustee Act 1893 notwithstanding that there are not more than two trustees, and without such consents as are required by that section. The consolidated fund of the United Kingdom is liable to make good all sums required to discharge any liability which the public trustee, if he were a private trustee, would be personally liable to discharge, except where neither the public trustee nor his officers has contributed to it, and which neither he nor any of his officers could by reasonable diligence have averted. A person aggrieved by any act or omission or decision of the public trustee in relation to any trust may apply to the court, and the court may make such order in the matter as it sees fit. The act contains provisions for the investigation and audit of trust accounts, which may take place on the application of any trustee or beneficiary; if the parties do not agree upon a solicitor and public accountant for the purpose, they are appointed by the public trustee, who has entire discretion over the source from which the expenses are to be defrayed. The fees payable under the act are fixed by the Public Trustee (Fees) Order; they are of two kinds: fees on capital and fees on income. The object of the department is not to make a profit, but merely to pay expenses. Full information as to the machinery and procedure of the office and the requirements necessary to obtain the services of the public trustee are obtainable on application to the Public Trustee Office, Clement’s Inn, London.
Scotland.—The history of the law differs considerably from that of England, though perhaps the position of the Scottish trustee is now not very different from that of the trustee in England. The Statute of Uses did not apply to Scotland, since neither that nor any similar legislation was necessary in a system in which law and equity were administered by the same tribunals. Trusts seem to have existed from time immemorial, and have been frequently regulated by statute. The policy of the English Statute of Frauds was no doubt intentionally imitated in the Act 1696, c. 25, enacting that no action of declarator of trust should be sustained as to any deed of trust made for thereafter, except upon a declaration or back-bond of trust lawfully subscribed by the person alleged to be trustee and against whom or his heirs or assignees the declarator should be intended, or unless the same were referred to the oath of the party simpliciter. The act does not apply to all cases, but only to those in which by the act of parties documents of title are in the name of a trustee, but the beneficial interest in another. The person creating the trust is called the truster, a term unknown in England. On the other hand the term cestui que trust is unknown in Scotland. The office of trustee is prima facie gratuitous, as in England, it being considered to fall under the contract of mandate. Some of the main differences between English and Scottish law are these. There is no presumption in Scotland of a resulting trust in favour of a purchaser. A trust which lapses by the failure of a beneficiary goes to the Crown as ultimus heres. The office of trustee is not a joint office, therefore there is no right of survivorship, and on the death of a trustee the survivors are incompetent to act, unless a certain number be declared or presumed to be a quorum, or the office be conferred on trustees and the accedors and survivors of them. Sometimes the concurrence of one trustee is rendered absolutely necessary by his being named sine qua non. The Court of Session may appoint new trustees, but generally appoints a judicial factor. There has been a considerable amount of legislation, chiefly in the direction of extending the powers of trustees and of the court in trust matters. The powers of investment given to trustees are much the same as those allowed in England.
United States.—In New York and many other States uses and trusts have been abolished (with certain exceptions), and every estate, subject to those exceptions, is deemed a legal right cognisable in courts of law. Some of these exceptions are implied trusts and express trusts to sell land for the benefit of creditors, to sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon, to receive the rents and profits of lands and apply them to the use of any person during the life of such person or any shorter term, or to receive such rents and profits, and accumulate the same within the limits allowed by the law. Some states allow the creation of trusts (other than those arising by implication or operation of law) only by means of will or deed. Where the trust is of real estate, the deed must generally be registered. Forms of deeds of trust are given in the Statutes of Virginia and other states. The English doctrine of cy près is being adopted in many states. A public trustee as a corporation sole exists in some states. A trustee under American law is generally entitled to compensation for his services. Spendthrift trusts, i.e. those under which the enjoyment of income bequeathed by will in such a way as to prevent creditors of the beneficiary from reaching it before it gets into his hands, are generally supported (Nichols v. Eaton, 91 United States Reports, 713). A “voting trust” is a concerted transfer of their shares in a corporation by a majority of the shareholders to trustees to hold and vote on them for a specified period for the purpose of securing the adoption or continuance of a certain line of corporate action. Any shareholder may recede from such an arrangement and reclaim his stock.
Authorities.—The principal authority is Lewin’s Law of Trusts; other treatises are those of Godefroi and Underhill. For American Law see Perry On Trusts. The principal authority on charitable trusts is Tudor. For the history may be consulted Bacon, Law Tracts; Reading, On the Statute of Uses; Gilbert, On Uses; Sanders, On Uses and Trusts; Spence, Equitable Jurisdiction, i. 435; Digby, Hist. of the Law of Real Property, chs. vi., vii.
TRUSTS, in Economics. The word “trusts,” as used here, includes all those aggregations of capital engaged in productive industry that, by virtue of their industrial strength, have or are supposed to have some monopolistic power. Legal monopolies, as such, and natural monopolies are excluded, although it is frequently true that the trusts are aided by and sometimes control natural monopolies. Trusts are here considered to be identical with the so-called “capitalistic monopolies.” As “trusts” started in America, the subject will be considered here first from the point of view of American experience.
While it is probably true that trusts are a product of evolution, it is desirable to analyse and explain that conception in some detail if we are to understand their industrial significance. Competition, especially among industries managed on a great scale, often makes modern business unprofitable. Commercial men have been thus compelled in some way to modify former methods of doing business. So long as most industries were run on a small scale, the differences in the ability and the facilities of the various competitors were so great that only those at the lower end of the scale of excellence were forced out of the business—this to the general advantage of industrial society. The
