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39 U. Colo. L. Rev. 177 (1966-1967)
The Importance of the Trust

handle is hein.journals/ucollr39 and id is 191 raw text is: THE IMPORTANCE OF THE TRUST AUSTIN W. SCOTT* The great historian of the English law, Professor Maitland, has said: The idea of a trust is so familiar to us all that we never wonder at it. And yet surely we ought to wonder. He went on to say that the greatest and most distinctive achievement performed by Englishmen in the field of jurisprudence is the development from century to century of the trust idea. Foreign scholars, trained in the civil law, have difficulty in grasping the trust idea. The German historian Gierke said to Maitland, I can't understand your trust. Many books have been written by scholars in Germany and in France, in Italy and in Holland, in Central and South America, undertaking to explain the Anglo-American trust. They find great difficulty in trying to insert it into their jurisprudential systems. Should it be classified under Obligations or under Property? As the Germans would put it, is the trust to be put under the head of Obligation- enrecht or under Sachenrecht? The truth is that the chancellors in England who invented the trust were practical men rather than jurists. They did not bother with problems of juristic classification. It all started with transfers of land made to the use of the transferor or of a third person. Such transfers began not long after the Norman Conquest and had become common before the fifteenth century. At first no legal problems were involved since the beneficiaries of the use had no legal remedies. They had to trust to the honor of the transferee. But early in the fifteenth century the chancellors began to enforce the claim of the beneficiary against the transferee. They held that he should be compelled in equity to do what conscience required him to do. They punished him for contempt if he refused to carry out the purposes for which the property was given to him. There was no remedy in the courts of law but there was now a remedy in equity. At first it was unnecessary for the chancellors to consider whether they were merely enforcing a personal obligation of the transferee or whether they were protecting a property interest of the beneficiary. But they were soon compelled to deal with the question whether the beneficiary had something more than merely a personal claim against the transferee. In the first place, the question arose whether on the death inte- state of a beneficiary of a use or trust of land his interest should be treated as a chose in action which would pass to his next of kin, or as an interest in land which would descend to his heir. The chancellors held that equity should follow the law, and that the beneficiary's interest should descend on his death to the person who would be entitled to a correspond- *Dane Professor of Law, Emeritus, Harvard University.

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