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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