Trust Law in repoducible terms = Mathematics

[Michael Joseph]

"Trusts are either executed or executory. In the former, everything has been done by the trustee required to secure the property, or to render certain the interest of the beneficiaries, and all that remains for him to do is to preserve the property and execute the beneficial purposes. In executory trusts, something remains to be done by the trustee, either to secure the property, to ascertain the objects of the trust, or to distribute according to a specific mode, or some other act, to do which requires him to retain the legal estate."

ENFEOFF'ED, pp. Invested with the fee of any corporeal hereditament.

FEE, n. In English, is loan.

FEUD, n. [L. fides; Eng. loan.]

a fee; a right to lands or hereditaments held in trust, or on the terms of performing certain conditions; the right which a vassal or tenant has to the lands or other immovable thing of his lord, to use the same and take the profits thereof hereditarily, rendering to his superior such duties and services as belong to military tenure, &c., the property of the soil always remaining in the lord or superior.

HEREDIT'AMENT, n. [L. haeres, haeredium. See Heir.]
Any species of property that may be inherited; lands, tenements,any thing corporeal or incorporeal, real, personal or mixed, that may descend to an heir.

A corporeal hereditament is visible and tangible; an incorporeal hereditament is an ideal right, existing in contemplation of law, issuing out of substantial corporeal property.

TEN'EMENT, n. [Low L. tenementum, from teneo, to hold.]
1. In common acceptation, a house; a building for a habitation; or an apartment in a building, used by one family.
2. A house or lands depending on a manor; or a fee farm depending on a superior.

The thing held is a tenement, and the possessor of it a tenant.

-------

“
In the middle ages in England conveyancers of land invented the "use" which is the ancestor of the modern trust. The owner of land enfeoffed another to the use of the feoffor or another. The transferee was called a "feoffee to uses" and the intended beneficiary of the use a "cestui que use." Later uses were created by bargain and sale and covenants to stand seized. The feoffee agreed to permit the beneficiary to take the profits and to convey as directed. The feoffee had seisin and promised to defend the possession if he was disseised. Uses became very popular in mediaeval England. Indeed, by the time of Henry V (1413-1422) they were the rule rather than the exception in landholding.

The words "use" and "trust" are employed as synonyms frequently by writers and judges. However, there is a distinction in their meanings. Prior to the Statute of Uses (1535) there existed in England a relationship known as a trust. Trusts were of two classes, active or special, and passive, simple, or general. In cases where a trustee held property for some temporary purpose and with active duties to perform, the trust was called active or special. Thus, if A conveyed land to B for ten years, to take the profits of the land and apply them to the use of C, B was an active or special trustee. These trusts were comparatively rare prior to the Statute of Uses. But if the legal title was transferred to one as a holder for the benefit of another, but with no positive duties of care or management, the trust was called general, simple or passive, or a use. Thus an enfeoffment of A and his heirs to the use of B and his heirs would create a use or general trust. Uses were far more common than special trusts prior to the Statutes of Uses. Indeed, by the time of Henry V (1413-1422) they were the rule rather than the exception in landholding.

It is now the generally accepted view that uses were modeled after the treuhand or salman developed under Germanic Law. "The feoffee to uses of the early English law corresponds point by point to the salman of the early German law, as described by Beseler fifty years ago. The salman, like the feoffee, was a person to whom land was transferred in order that he might make a conveyance according to his grantor's directions."

An earlier view was that the use was a development of the Roman "fidei-commissum." Under the Roman law it was not possible to give property by will to certain persons, for instance, persons who were not Roman citizens. It became customary among the Romans to devise property to one capable of taking it, with a request that he deliver it to a desired devisee who was incompetent to take directly. This was the creation of a fideicommissum. The obligation of the devisee to the desired beneficiary in this relationship was not at first legally enforceable, but later became so. This confidence was analogous in many ways to the English trust or use, but differed in that it arose by will only and was limited to one purpose.

It was said many years ago that the parents of the trust were fraud and fear and the court of conscience was its nurse. It appears that the reasons for the introduction of uses were in some instances dishonorable. The common law of England attached many burdens to the holding of the legal title to land. As the feudal system prevailed when uses arose, the lord of the land was entitled to a "relief," or money payment, when the land descended to an heir of full age; to the rights of "wardship" and "marriage" when the heir was a minor; and to "aids" upon the marriage of a daughter of the tenant, the knighting of his eldest son, or when the tenant was held to ransom. These burdens, and others of a similar nature, fell upon the holder of the legal title. By enfeoffing another of the legal title and reserving only the use, the feoffor escaped such exactions. In order to avoid the feudal burdens which would ensue upon the death of a single feoffee, several feoffees could be used as joint tenants and their number renewed from time to time.

So too, upon the commission of certain crimes the holders of the legal title suffered a forfeiture, which could be avoided by vesting the legal estate in another and retaining only the use. And the common law gave no remedy to a creditor against the interest of a cestui que use. Some dishonest persons escaped payment of their debts by a transfer of land to a feoffee to uses. The incidents of dower and curtesy attached only to the legal estate. A husband, desiring to prevent the attaching of a dower interest in a prospective wife, could accomplish the result by a conveyance to a feoffee to uses. And a corresponding fraud could be worked by a wife with respect to her husband's interests in her realty.
Not only was the interest of the cestui que use free from dangers and duties, but it could be held by a large and influential class which could not hold the legal estate in lands, namely, religious organizations. The mortmain acts forbade the alienation [transfer] of land to them, and thus prevented religious orders from acquiring directly the real property they needed, and which charitably minded persons often desired to give them. Furthermore, certain of the orders had taken the vows of poverty, and could not consistently hold property in their own names. By a conveyance of land to an individual, to be held for the use of a religious order or organization, however, it could have the benefit of the land, though not the seisin. In the opinion of some scholars, the religious bodies were the first to employ the use extensively.

The equitable estate or use also was more capable of administration and transfer than the legal estate. The latter could originally be conveyed only by feoffment with livery of seisin, fine, or recovery. Publicity was essential. The use, on the other hand, could be created and transferred secretly, and with little or no ceremony. This capacity for secret transfer encouraged fraud on later purchasers of the land and the employment of the use by the unscrupulous. Likewise the use was capable of being disposed of by will. The legal estate was not so disposable at that period. To be able to control land after death was no doubt a great incentive to the creation of uses.

Early English law was extremely rigid. Forms and technicalities were strictly observed. The courts of common law gave no remedy unless a writ fitted exactly to the case could be found. The introduction of new remedies through the law courts was a matter of great difficulty. They rarely recognized a new type of property interest. The interests of the cestui que use might not be protected by the courts of common law because no writ existed to fit the case. The ecclesiastical courts had no jurisdiction to enforce them. Therefore, for many years uses and trusts existed only as honorary obligations and had no standing in any court. If the feoffee to uses saw fit to deny that he held the property for another, and appropriated it to his own use, he might do so with impunity.

It is true that some obligations with respect to money and chattels were enforced by the common law courts in these times, but these were the so-called "common law trusts" and not uses. If money was delivered to A, to be paid to B, the common law action of account lay. And if a chattel was delivered to another for the use of a third, detinue could be brought by the beneficiary.