University of Michigan Law School University of Michigan Law School Scholarship Repository Books Faculty Scholarship 1912 Trusts and Duties of Trustees: Instruction Paper George L. Clark Available at: https://repository.law.umich.edu/books/68 Follow this and additional works at: https://repository.law.umich.edu/books Part of the Contracts Commons, Estates and Trusts Commons, Legal Education Commons, Legal History Commons, and the Legal Remedies Commons Trusts and duties of trustees. Instruction paper ... Clark, George Luther, 1877- Chicago, American school of correspondence [c1912] https://hdl.handle.net/2027/hvd.hb1q8r Public Domain, Google-digitized http://www.hathitrust.org/access_use#pd-google We have determined this work to be in the public domain, meaning that it is not subject to copyright. Users are free to copy, use, and redistribute the work in part or in whole. It is possible that current copyright holders, heirs or the estate of the authors of individual portions of the work, such as illustrations or photographs, assert copyrights over these portions. Depending on the nature of subsequent use that is made, additional rights may need to be obtained independently of anything we can address. The digital images and OCR of this work were produced by Google, Inc. (indicated by a watermark on each page in the PageTurner). Google requests that the images and OCR not be re-hosted, redistributed or used commercially. The images are provided for educational, scholarly, non-commercial purposes. TRUSTS AND DUTIES OF TRUSTEES HID HB 1QBR A AMERICAN SCHOOL OF CORRESPONDENCE CHICAGO ILLINOIS HARVARD UNIVERSITY GRADUATE SCHOOL OF BUSINESS ADMINISTRATION BAKER LIBRARY VARD ET SANA VE RIA2 ECCL RISTO TAS TONOV CHR ÓEMIA SVISS. S TRUSTS AND DUTIES OF TRUSTEES INSTRUCTION PAPER PREPARED BY ber GEORGE Ľ . CLARK , A .B ., LL. B . PROFESSOR OF LAW , UNIVERSITY OF MICHIGAN AMERICAN SCHOOL OF CORRESPONDENCE CHICAGO ILLINOIS 0 . 8 . A . KOD . Aug 27,1924 C 593 . COPYRIGHT 1912 BY AMERICAN SCHOOL OF CORRESPONDENCE Entered at Stationers ' Hall, London All Rights Reserved § § § $ $ § § § $ $ § $ § § § $ 8 § § § § § 1 20 18 2 23 22 21 19 17 16 15 14 13 12 10 9 7 6 4 3 . .11 8 5 . Mandatory . Precatory Similarities . Differences . Similarities Differences ' Similarities Differences Ways Reason Uses Trustee Test Differences Similarities Advantages Express Statute Trust Origin A Two In In trust American English meanings Trust not a Distinguished ICON of and c determining for liable changed in of e trusts which s affected words . Uses . law distinguishing words . history . Nature Language . .. of . law Trust . Chose . Origin . .. also . of . .. trusts . Trust . a express . and . into . of part . by . the Trust . of and . Distinguished . from . whether . and . in as the CONTENTS debtor . Distinguished . word uses . Necessary a . Action its . debt at trusts . Requisites of . effects the . equity CHAPTER Contract . CHAPTER . Statute History Distinguished . trusts . “ present . trustee . a . may Distinguished . debt . jurisdiction . from . from . of to . for . be Creation . from of . Uses . Expressed . ” time . of Express . the . or other . created . Executorship . from . a . II . trust . Bailment . Benefit . from . legal . Debt of . Trusts . Trust . Trusts . relations Assignment . .. of . Third . Person . PAGE oo o er A Co Co Co N N Oo ooo oov oser HAHA CONTENTS Consideration PAGE $ 24 . Meaning of consideration . $ 25 . Requirement of consideration in the law of uses . § 26 . Covenant to stand seized . § 27 . Consideration in the law of trusts . $ 28 . Effect of ex parte pye . Limitation of the doctrine . § 29. Exception in the United States in favor of a wife . Statute of Frauds § 30 . Writing unnecessary apart from statute . $ 31 . Usual provisions of the Statute of Frauds . § 32 . Construction of the statute . § 33 . The proper party to sign the memorandum . .. Subject -Matter of a Trust § 34 . The general rule . .. .. § 35 . Exceptions . Cestui Que Trust § 36 . Who may be a cestui que trust .. .. .. .. .. .. § 37 . Public or charitable trusts . § 38 . Private trusts - must not last indefinitely .. 39 . Private trusts --- cestui not capable of enforcing $ 40 . Private trusts - cestui indefinite . The Trustee & 41. Who may be a trustee . § 42 . Appointment of trustee by court . .. .. § 43 . Removal of trustee . § 44. Liability of an infant trustee . .. $ 45 . Disclaimer by trustee . § 46 . Same effect on cestui 's rights . Notice to Cestui Que Trust § 47. Notice not necessary . CHAPTER III Nature of Cestui Que Trust 's Interest Claim Purely Equitable , Except When Account Would Lie at Common Law § 48 . Cestui's remedy against the trustee . 20 & 49. Liabilities of trustee in covenant and special assumpsit . 20 $ 50 . The trustee may recover against the cestui in ejectment or in trover . 21 Cestui Que Trust is Claimant against Trustee - Not Owner of the Trust Res § 51. Cestui's claim enforcible regardless of the situs of the trust property . 21 $ 52. Jurisdiction of the property alone not sufficient for the enforcement of cestui ' s claim . $ 53 . Remedies of the cestui. Common -law remedies of the cestui against third person . CONTENTS РАав § 54 . Remedies against third person in equity . Meaning of equitable title 23 § 55 . Remedy of cestui que trust if the trustee refuses to sue the third person . § 56 . Suits by third persons against trustee . .. .. § 57 . Burdens of ownership fall upon trustee .. .. .. .. Remedy que possession . § 58 . of cestui trust who is in of the trust res . § 59 . Remedy of trustee against a joint wrongdoer . $ 60. Cestui barred by laches of trustee . § 61. Cestui cannot vote as owner of the trust property . $ 62 . Cestui que trust of an obligation cannot discharge the obligor . § 63 . Purchaser of trust property not bound to see to the application of the purchase money . - . - Equitable § 64 . Set off between obligor and trustee set off CHAPTER IV Resulting and Constructive Trusts Classification of Trusts § 65 . Classification of trusts according to form . § 66 . Classification of trusts according to intent . f 67 . Practical importance of the distinction between resulting and con . structive trusts . Purchase Money- - Resulting Trusts § 68 . Origin and history . § 69 . The general rule . § 70 . Limitations of the rule . § 71 . Rebutting the presumption . Conveyance to wife or child . § 72 . Resulting trust in favor of creditors . § 73 . Criticism of the presumption . Statutory changes . Resulting Trust Where Intended Trust Cannot Take Effect § 74 . Intended trust void for uncertainty . § 75 . Intended trust void because of lapse of cestui ' s interest . 8 76 . yoid Intended of illegality . trust . because . § 77 . grantor paid Rule where the was for the conveyance . § 78 . of in Nature the trusts this section . Where the Conveyance to the Trustee is without Consideration $ . 79 The law as to usesses . $ 80 . No resulting trust . $ 81 . Whether a constructive trust in such cases . $ 82 . Criticism of the American doctrine . Basis of constructive trusts . 37 § 83 . - Same discussion of analogous cases . $ 84 . - - . Same further analogous cases . Where an Expressed Trust Fails to Exhaust Entire Property Trans ferred to Trustee § 85 . The general rule . $ 86 . A devise subject to a trust . 8101 g103 8104 § 8108 8106 8105 $ § $ § 8 $ § $ 102 $ § § § § § $ $109 111 $ 107 110 87 100 98 97 96 88 92 Where 99 95 94 93 91 90 89 . Property . Where . Modification Mingling Acquiring Chattels General Right Cestui Purchase Murdering Conveyance Conveyance Same Trust Modern Land Trustee Fiduciary Purchase Trustee Part Limitation Elements Ancestor The The The self chaser gees correct payment early doctrine Property Imposed by obtained - a que Reason another . Person provision and ofcestui Acquired law . obtained of killed with . or trust property or other other law testator . of of property trust view property ofbona . pledgees forof . value . is where . Acquires authority IV the . by by of must will . deed " of . to illustration the fiduciary of fiduciary purchase bona of Acquired Prevent His . upuu of upon fide by by through . funds . by fraud Wills heir doctrine Transfer . Property foregoing upon without of the . by . trace the ( upon to fraud purchaser . a . Perform Fiduciary fide by By prevent . ) mistake . Piucipio principle . trustee . with trustee by CONTENTS erty Statute thief takes . CHAPTER Use . with money to oral an by . Act . funds . prevent purchaser By Fraud to Interest oral as . buy . Instruments Act . notice . Acquired of . One . the rule of . authority . renewal of trust , for . revocation converter or constructive Trust . trust . invests for . of can . Another of Position . before . the . trustee and . other . of . to Person Another . his of the . value . not . Wills . Statute in . Party . for the . Property . Property be . Trustee . entitled making . Mistake . mixture . V buyfor notice . by of .. fiduciary . Felony . by value without of lease , ' . , . to . s . own sell . Fraud . or . of . Wrongful disseizor trusts . will . He . of . for . Has can . Frauds himself . applied of . a in property . will . the to . in . Regard . notice by . his . land a not . preference . — Non for trust . bona a . own . Duty . buy . and . Use . hisown . Fiduciary . - . to . benefit . fide . to . of mortga . Which . Statute . benefit . for to . Prop . him . pur . , . 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