Trust Law in repoducible terms = Mathematics

[Michael Joseph]

"The development of the court of chancery brought a change. About the time that uses were arising, it became the custom to petition the king or his council for relief in cases where the law courts gave no remedy. If no writ was available, or if the opponent was powerful enough to prevent justice, the aggrieved suitor besought the king or his council for a special and extralegal dispensation. The chancellor was a member of the council, and about the time of the reign of Edward I (1272-1307) it became usual to refer these petitions to the chancellor for consideration. The chancellor became the custodian of the king's conscience, and his court the court of conscience where equity and fairness, rather than technicality, were supposed to rule.


It was natural that beneficiaries of uses alleging loss due to a failure of the feoffees to uses to hold the property for their use should apply to the chancellor for relief. At some time early in the fifteenth century the justice of these petitions began to be recognized by the chancellor, and uses and trusts were enforced. The chancellors of those days were churchmen, and their consciences were naturally shocked by the unfairness of allowing a feoffee to uses to repudiate his obligation. Possibly the common law trust appealed to the chancellor as a quasi-precedent. The process by which the chancellor acted was known as a subpoena. It commanded the defendant to do or refrain from doing a certain act. The relief was personal and specific, not merely money damages. Hence it is often said that the cestui que use had a remedy only by subpoena. “


“By the beginning of the sixteenth century uses and trusts had come to involve serious inconveniences and frauds and incurred the emnity of the crown. As previously stated, some of the principal objects of their introduction were to relieve tenants of the burdens of feudal landholding, to enable religious orders to have the benefit of land, and to effect greater freedom in the conveyancing of real property. From time to time prior to the Statute of Uses statutes in aid of creditors, purchasers, and landowners defrauded by uses, and against the holding of lands to the use of religious houses, were enacted by parliament, but they were ineffective.

In 1535 Henry VIII secured from parliament the passage of the famous Statute of Uses. The preamble to the Statute gives a list of the evils which were alleged to exist and to constitute grounds for its enactment. Apart from the reasons named in the Statute itself, there was, according to some authorities, the desire on the part of Henry VIII to destroy the monasteries and confiscate their property, which he thought could best be accomplished by abolishing the method by which they held land, namely, the use.

The object of the Statute was to abolish uses, and this it proposed to do by wiping out the estate of the feoffee to uses, and giving to the cestui que use the legal estate. The Statute "executed the use," in the phrase of the day. Instead of leaving it to the feoffee to uses to transfer the legal title to the cestui que use when the latter required it, the Statute transferred such interest immediately on the creation of the use. By this "transmutation of the use into possession" it was thought that this troublesome class of property interests would cease to exist, and that all estates in lands would be subject to the same burdens and the same rules of tenure and conveyance. There would be no uses in land, because the law would change them to legal interests at inception.

The Statute of Uses was repealed in England by the reform property legislation of 1925.


To the common law judges, who had to deal with legal estates, fell the tasks of construing the Statute of Uses, and of determining when the Statute executed the use and gave to the cestui que use the legal estate. It was evident from the express words of the Statute that uses in personalty were not included. The Statute spoke only of real property. And since it referred only to instances in which the feoffee to uses was "seized," it was readily held that the Statute had no application to interests in real property other than freehold estates. Therefore a gift to A of a term for five years, to the use of B, was not affected by the Statute. The Statute was also held not to apply to active uses. Duties of administration required the legal title in the trustee. Thus if land was conveyed to a feoffee with a duty to collect the profits and pay them to another, the necessity of having the title and possession in the feoffee would prevent the Statute from executing the use.

Finally, the English courts of law held that the Statute did not affect a use upon a use. Thus if lands were conveyed to A, and his heirs, to the use of B and his heirs, to the use of C and his heirs, the Statute was held to transfer the use of B into possession and give him the legal estate but not to convert the use of C into possession and destroy B's legal estate. This construction has been thought by some to have been a mere quibble, which improperly caused a partial destruction of the Statute. But others have shown that the second use in the case of a use upon a use had been held void before the passage of the Statute of Uses on the ground that it was "repugnant" to the first use. About a hundred years after the passage of the Statute of Uses chancery recognized the second use in the case of the use upon a use and held it enforceable as a trust against the person in whom the court of law had vested the legal estate.

Thus a large number of uses were left unaffected by the Statute of Uses and were recognized and enforced by chancery. The name "trust," after the Statute of Uses, was applied to all the equitable interests so sustained. It had been used as a synonym for the use in prior decisions and in the Statute of Uses. These interests which survived the Statute of Uses and have been enforced as trusts constitute the basis of modern trust law"