The Restatement of the Law of Trusts

Abstract

Comment: The reason for this is that no can be discussed in abstract without considering its purpose. An attempt to do so leads us into elaborate distinctions between trusts and bailments, debts, equitable charges, business trusts, mortgages, contracts to convey, assignments, etc., which in turn must be discussed without regard to how question arises. The result is that decision whether a or something else has been created depends on found intention of parties, which is determined by court's appraisal of their conduct; hence, court can, by assigning such weight as it wishes to this criterion, erect any of these various kinds of trusts. If American Law Institute is really serious in its desire to relieve courts and attorneys from what Mr. Root calls the vast multitude of decisions which our practitioners are obliged to consult, statements of this kind will accomplish more than hundreds of pages attempting to determine exact difference between active and passive in abstract, or fundamental distinctions between a debt, a trust, and a resulting trust, without regard to their purpose. or fundamental distinctions between a debt, a trust, and a resulting trust, without regard to their purpose. The topics set out above might form part of initial discussion of history of device, sufficiently detailed to show that conventional definitions of a are not convenient guides to groups of cases involving a single principle or policy. This task accomplished, restatement should proceed to a classification of cases using term in light of purpose for which it was invoked. The following general classifications are ventured. I. The use of device in cases where owner of property desires to give one person benefit and another control of that property.5' These are, for most part. intentional uses of device. They include family settlement cases and rapidly growing busi Professor Richard Powell of Columbia, in his course in Trusts and Estates, classifies these cases with cases in Future Interests and Wills. He divides his HeinOnline -31 Colum. L. Rev. 816 1931 THE RESTATEMENT OF THE LAW OF TRUSTS 817 ness done by great companies. They are entirely different in purpose from cases where device is used by court after transaction is completed, to avoid some rule of law or give some special remedy. Under this group we could consider: 1. Limitations on character of property to which device inay be applied. We would not try to do this by defining property, but by showing that courts had commenced by applying this broad concept to things like horses and land, and ended by including things like information and trade secrets. We could not say, as restatement does, that an interesf which has not come into existence or which has ceased to exist cannot be held in trust or that an expectation or hope of receiving property in future cannot be held in trust.52 We would explain that such definitions were historical rationlizations of fact that things not ordinarily bought and sold are not permitted to be complicated in this way, at least until some necessity arises. When courts want to permit transfer of such things, they are lumped under concept of good will,'5 3 and immediately we find that expectations can be held in trust. For example difference between expectation of selling goods to future customers and getting a legacy from a future dead man, only first of which is supposed to be capable of being held in trust, is simply confused by saying that one is property in existence and other is property which has not come into existence. Our conclusions would be that there are very few limitations on kind of property which can be intentionally disposed of by device, and that there is some recognized rule of policy other than definition of property which makes most of these limitations understandable. Other possible steps in discussion of intentional trusts might be: 2. Limitations on intentional use of device imposed by (a) statute of frauds (b) statute of wills. materials generally into: I. Historical Introduction; II. Problems in Wealth Disposition; III. Social Limitations on Wealth Disposition; IV. Problems in Administration of Trusts and Other Interests Validly Created. Thus cases are considered in their proper setting. The RESTATEMENT, since it confines itself to device, cannot make a reorganization such as Professor Powell's. It can, howev&, by describing device, instead of defining it, pave way for some such reclassification of cases in future. Such a classification is made difficult if we are to accept a set of principles governing trusts in all situations. RESTATEMENT, at 138, § 74. RESTATEMENT, at 148, § 80, illustration 2. HeinOnline -31 Colum. L. Rev. 817 1931