Page:Harvard Law Review Volume 5.djvu/412

396 HAR VARD LA W RE VIE W. Now vary the case by supposing that the testator imposes upon the donee of the power the duty to exercise it. Can the imposi- tion 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 when the donee was in honor bound to make it ? It is time enough for the court to interfere when A proves false to his duty and sets up for himself. Then, indeed, a court of equity ought to turn him into a constructive trustee for the donor or his representative. This contingent right of the heir or next of kin may be safely trusted to secure the performance of his duty by the trustee. And its existence is a full answer to the suggestion of Sir William Grant in Morice v. Bishop of Durham and of Mr Justice Rapallo in Holland v. Alcock, 1 that the trustee could keep the property without accountability to any one, if the beneficial inter- est were not given unconditionally to the heir or next of kin imme- diately upon the testator's death. The position of the heir or next of kin is, in substance, the same as in cases where property is given to them subject to a purely optional power of appointment in another to be exercised, if at all, within a reasonable time. Sir William Grant himself said, in Gibbs v. Rumsey, 2 which was such a case : "The claim of the heir or next of kin is premature until it shall be seen whether any appointment will be made." We may appeal from Mr. Justice Rapallo in Holland v. Alcock to the opinion of the same distinguished judge in Gilman v. Mc- Ardle. 3 In each of these cases there was a trust for the same indefinite object, namely, the celebration of masses for the soul of the creator of the trust. In the former case the trust was ex- pressed in a will, in the other case the trust was annexed to a conveyance inter vivos. In neither case was there any mode of compelling the specific performance of the trust. And yet the court would not allow the trustee under the will to perform the trust, but compelled him to surrender the trust property to 1 108 N. Y. 323. a 2 V. & B. 299. « 99 N. Y. 45 1.