Trust

The position of trustees in respect of what was frequently an undue personal responsibility for the administration of their trust has been much improved by s. 8 of the Trustee Act 1888 which enables an honest trustee to plead the Statutes of Limitation. It has been decided that in the case of a breach of trust consisting of an improper investment of the trust funds, time begins to run in favour of the trustee from the date of the investment. Sub section (3) of the Judicial Trustees Act 1896 gives power to the Court further to relieve honest trustees for breaches of trust.

Under the old law trustees could not safely advance on mort gage more than two-thirds of the actual value of agricultural land or one-half of the value of houses. This "two-thirds rule" is now made statutory by s. 8 of the Trustee Act 1893. The same section protects trustees for not investigating the lessor's title when lending on the leasehold security, and for taking a shorter title than they might be otherwise entitled to on the purchase or mortgage of any property, if they act with prudence and caution.

By s. 9 (replacing s. 5 of the Trustee Act 1888) trustees who commit a breach of trust by lending more than the proper amount on any property are excused from making good any more than the excess of the actual loan over the sum which they might have properly lent in the first instance. (See generally the Trustee Act, 1925, for full information.) Rights and Duties of the Cestui que Trust.—The cestui que trust has a general right to the due management of the trust property, to proper accounts and to enjoyment of the profits. He can as a rule only act with the concurrence of the trustee, unless he seeks a remedy against the trustee himself.

Judicial Trustees.—The Judicial Trustees Act 1896, inaugu rated a semi-official system of trusteeship which was new in England, but had been known in Scotland for upwards of 15o years.

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 con vict's property. The law of trusts generally is applicable to him. 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, Kingsway, 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, enact ing 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 docu ments 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 pre sumption in Scotland of a resulting trust in favour of a pur chaser. 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 abso lutely 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 legisla tion, 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.