Page:Harvard Law Review Volume 1.djvu/145

This page has been proofread, but needs to be validated.

right the managers of such trusts exercise corporate franchises (see the Cotton-seed Oil case below), and it may also be questioned whether the courts will not set aside all such trusts as contrary to public policy.

But, notwithstanding all this, it may be reasonably urged that, until the courts have set aside such trusts or any one of them, and until the legislatures have forbidden or regulated them by statute, there is no objection to entering into them, provided their nature and terms are such as to make it profitable to enter into them, and reasonably safe according to ordinary law and business principles. And this brings us to the second branch of the subject, namely, their effect upon the interests of the individuals composing them, and their legal rights, as against the trustees or managers, and in the common property so entrusted.

First, as to simple trusts. Of such nature are the business and manufacturing trusts, like the Straw-board Trust and the Cotton-seed Oil Trust, and the Cattle Trust, when no corporations are constituent members of the trust; if corporations are involved, the only difference is that the effects and criticism applying to the second class, as mentioned below, are superadded.

One fundamental objection to all such trusts is their secrecy. It is very common for such trusts to be created without allowing the individuals who entrust their property or its management even to see the deed or declaration which sets forth the duties and liabilities of the managers and the rights and liabilities of the persons composing it. Sometimes, perhaps, even no such declaration is drawn up and signed.

In considering what such a deed should contain we must again make a distinction between two possible kinds of trust,—the trust of management or control merely, and that of property and management. In the first kind the individual member parts with the management or control of his property, wholly or partially, while retaining the property title to his individual possessions; in the second, he parts with his title also, and gets in return a mere certificate of his proportionate or appraised interest in the general trust.

The first kind is comparatively free from danger. If the individual is satisfied with the trustees, and sees nothing to object to in the proposed system of management, and if the prospect of increased profits is sufficiently great to make him willing to part