Cunningham, Harold D., Jr.

English

University of Baltimore School of Law

University of Baltimore Law ReviewVolume 2Issue 2 Spring 1973 Article 151973Book Reviews: Trusts and Trustees, Cases andMaterialsHarold D. Cunningham Jr.University of Baltimore School of LawFollow this and additional works at: http://scholarworks.law.ubalt.edu/ublrPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Review by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information,please contact snolan@ubalt.edu.Recommended CitationCunningham, Harold D. Jr. (1973) "Book Reviews: Trusts and Trustees, Cases and Materials," University of Baltimore Law Review: Vol.2: Iss. 2, Article 15.Available at: http://scholarworks.law.ubalt.edu/ublr/vol2/iss2/15Baltimore Law Reviewoverall educational value of the book since many points of debateabout correctional reform are discussed through Mr. Oswald's review ofhis career. The author tries to make the case that he was as qualified tohandle the Attica situation as anyone, and, though he is at times a littleover-anxious to do so, he is not overbearing in his manner and isgenerally successful in his purpose.Society must find the best ways to deal with one of its most pressingproblems: criminal justice, a complex situation that goes far beyondthe overcrowded prisons, a major focus of this book. We cannotunderstand the field of corrections, however, without knowing as muchas possible about its various components. Russell G. Oswald's personalexperiences provide a valuable means to gain useful insight into theoverall situation of criminal justice as it related to penology. It is wellworth reading.TRUSTS AND TRUSTEES, CASES AND MATERIALS. By R. H.Maudsley and E. H. Burn. London: Butterworth and Company. 1972.Pp. 660. $11.00. Professor Maudsley is Professor of Law at KingsCollege, University of London. His specialties are Equity, Trusts andEstates, Land Law, Estate Planning and related subjects. Mr. Burn is alecturer in the Law of Land in the Inns of Court. Reviewed by HaroldD. Cunningham, Jr.*Ever since Langdell developed his celebrated "case method" atHarvard over one hundred years ago, the principal teaching tool in usein American law schools has been the "casebook." Langdell wouldhardly recognize contemporary American casebooks, but they stillretain their original character as tools for the Socratic technique ofprobing inquiry. These case holdings are not set forth in black-letterfashion: the student is expected to dig out the legal principles on hisown. In contrast to the American "casebook," casebooks in Britainhave traditionally not been designed to be the student's primary studytool. Casebooks have been used there for some time, but not as widelyas in the United States, and their thrust and structure have beendifferent from their American counterparts. The fact that lectures,rather than "classes" or seminars, have provided the dominant lawteaching milieu at British Universities, plus the fact that British lawstudents, be they reading English or Scots law, generally have only onejurisdiction to worry about, has tended to make the approach of Britishcasebook authors more didactic. Their authors have been less temptedto pose a problem and leave it for the student to figure out. Insteadthey have "laid it out" in a manner unfamiliar to (but perhaps* Professor of Law, University of Baltimore School of Law.[Vol. 2Book Reviewssometimes desired by) American students. For example, in Winfield'scelebrated little casebook,' each case selection is prefaced by astatement of the applicable rule. Thus, the case is there to illustrate theauthor's formulation of the rule and not as a vehicle for its deductionby the student.The foregoing excursus has been necessary to'provide a backdrop fora consideration of an English casebook which in this reviewer's opiniongoes far toward successfully bridging the gap between the two methodsof law teaching. Like other English casebooks, it is not designed as theprimary vehicle of instruction. Students attending Professor Maudsley'slectures at Kings College, London, or Mr. Burn's lectures in the Inns ofCourt, will still be expected to have read one or more of the standardtexts.2On the other hand, the case and cognate material the authors setforth is not intended to illustrate previously posited black letter rules.Although (in keeping with the English practice) the reader is usuallyinformed of the holding of the case at the outset, sources andexplanatory comments are woven together in a format that requires thestudent to synthesize his own body of principles. On the other hand, inthe fashion of an American casebook, there are questions and problemsand copious references to collateral readings after each group of casesand materials, thus emphasizing the book's utility as a classroom tool.The authors have been successful collaborators in the field of Equityand Property and are adept at casebook preparation. 3 In ProfessorMaudsley's case, his experience with the case method goes back at leastto 1949. In that year, he and Professor Hanbury4 (then on the eve ofhis election to the Vinerian chair of English Law at Oxford)inaugurated a "class" or seminar-type meeting in which leading cases inthe field of Equity and Trusts were discussed in a fashion very muchlike that found in American law schools. Professor Maudsley has alsohad extensive experience as a student and teacher in American lawschools.'The casebook under review understandably tracks very closelyProfessor Maudsley's edition of Hanbury's Modern Equity; but the1. P. WINFIELD, CASES ON THE LAW OF TORT (4th ed. 1948).2. E.g., H. HANBURY, MODERN EQUITY (9th ed. R. Maudsley 1969); P. PETTIT, EQUITY ANDTHE LAW OF TRUSTS (1966); D. PARKER & A. MELLOWS, THE MODERN LAW OF TRUSTS(1966); and E. SNELL, PRINCIPLES OF EQUITY (25th ed. R. Megarry & P. Baker 1960).3. Professor Maudsley, formerly a fellow of Brasenose College, Oxford, acknowledged hisdebt to Mr. Burn, his former Oxford colleague in the preface to the ninth edition of Han-bury's Modern Equity, which Professor Maudsley edited in 1969. Together they wrote R.MAUDSLEY & E. BURN, LAND LAW, CASES AND MATERIALS (2d ed. 1970).4. Professor Hanbury was my tutor at Lincoln College, Oxford when I began my studies therein 1949. This seminar not only marked the beginning of my long friendship with ProfessorMaudsley, it also proved to be one of the high points of my Oxford experience.5. As a Commonwealth Fellow at Harvard, he earned an S.J.D. He has held visiting law pro-fessorships at the Universities of Chicago, Cornell, Miami and San Diego. He has also lec-tured at the University of Baltimore and at Cornell.1973]Baltimore Law Reviewnature of the subject favors compatibility between casebook andtextbook treatment of a given topic. Many of the issues have beencarefully honed by numerous precedents and subjected to criticalscrutiny by teachers and practitioners. Thus the very need to respondto criticism tends to perpetuate a format and approach to the problemunder discussion compatible with other current works on the subject.Turning now to substance, how is the material of the subjectpresented? The development of the topics discussed is straight-forwardwithout being stereotyped or pedantic. After a lucid introductorysection, an approach to a definition of a Trust is suggested. This is doneby way of extracts from Maitland, Underhill, Scott, and finallyHanbury.6 Particularly useful to American law teachers and students isthe account that follows in which the trust is distinguished from otherrelationships such as bailment, agency, contract, debt, third partybeneficiary relations, conditions, equitable charges, powers and otherrelations.7 Chapter 2, "The Requirements of a Trust," covers theformalities by setting forth pertinent statutory provisions dealing withthe requirement of a writing, and develops the problem of certainty bythe insertion of case material, in particular, the recent case of McPhailv. Doulton.8  The special problems pertinent to unincorporatedassociations are also noted.9Chapter 3 deals with volunteers and other aspects of the constitutionof trusts, including trusts involving property to be acquired in thefuture. Chapter 4 covers, inter alia, topics frequently stressed inAmerican casebooks on Wills and Trusts, such as incorporation byreference, facts of independent legal significance and secret trusts. Thedoctrine of facts of independent legal significance is succinctlypresented via a brief extract from Scott on Trusts. 1 0 The UniformTestamentary Additions to Trusts Act is also quoted.' ' Except for asingle case, 2 some explanatory comment (incorporating an extractfrom Hanbury" 3) and the proceedings of the Conference on UniformLegislation in Canada (1965-1968),' this is all the authors say directlyabout incorporation by reference, facts of independent legal signifi-cance and gifts to trustees of an existing settlement.American readers who have been teased by the cryptic references toEnglish cases on these topics in casebooks such as Leach on Wills andScott on Trusts may be disappointed that the authors did not choose6. R. MAUDSLEY & E. BURN, TRUSTS AND TRUSTEES, CASES AND MATERIALS, 4-6 (1972) [herein-after cited as MAUDSLEY & BURN].7. Id. 6-30.8. [1971] A.C. 424; MAUDSLEY & BURN 44-55.9. MAUDSLEY & BURN 55-72.10. A. Scorr, LAW OF TRUSTS § 54.2 (3rd ed. 1967); MAUDSLEY & BURN 111.11. MAUDSLEY & BURN 117.12. In the Goods of Smart, [19021 P. 238; MAUDSLEY & BURN 109.13. HANBURY, supra note 2, 158-160; MAUDSLEY & BURN 113.14. MAUDSLEY & BURN 115-117.[Vol. 2Book Reviewsto include more case material on these points. The section on SecretTrusts' I does, however, contain extracts from the leading cases,' 6 andcomments or footnote references to many others.Ever since the case of Morice v. Bishop of Durham, 1 7 courts havebeen plagued by the problem of how to treat the gifts of donors whosedonative acts did not fit into the category of charitable dispositions butwho clearly did not make the usual private gift. The problem has notdisappeared, and the usual result has been to enforce such "trusts" ifthey can be construed as "certain," and for the benefit of individualsrather than for "purposes or objects."' s The authors have provided abalanced treatment of this topic in Chapter 5, in which the anomalousanimal and monument cases and the perpetuities aspects of the problemare well covered.' 9Law students are frequently confused by the somewhat schizoidmanner in which the law uses the trust as an intent-enforcing, as well asa remedial, mechanism. Although there may be some conceptualproblems,2 0 the cause of the difficulty is possibly the loose manner inwhich courts have used the adjectives, "constructive" and "resulting,"in connection with the word "trust." Professor Maudsley and Mr. Burnare clearly right when they assert that in some cases these adjectivaldesignations make little difference from the viewpoint of the applicablelegal consequences. 2'In the main, however, the authors follow the orthodox approach andtreat the resulting trust in Chapter 6 as a partly remedial and partlyintent-enforcing device influenced by a number of presumptions thatare brought into play to cope with the situation of a failure of anexpress trust. The constructive trust, discussion of which is deferreduntil Chapter 9, is clearly and accurately distinguished from a resultingtrust. While each can be said in a sense to be a trust arising by operationof law, the guiding principle of constructive trusts is unjust enrichment,rather than failure to comply with formalities.The American reader will probably be most interested in Chapter 7(Trusts and Creditors) and Chapter 8 (Tax Saving Trusts) from theviewpoint of comparative law. English law does not recognizespend-thrift trusts, but the gap is almost entirely filled by varieties ofprotective trusts.2 215. Id. 118-134.16. McCormack v. Grogan, L.R. 4 H.L. 82 (1869); MAUDSLEY & BURN 119; Blackwell v. Black-well, [1929] A.C. 318; MAUDSLEY & BURN 123; Re Keen, [1937] Ch. 236, 1 All E.R. 452(1937); MAUDSLEY & BURN 126.17. 9 Ves. 399 (1804), affd, 10 Ves. 522 (1805).18. Re Denley's Trust Deed, [1969] 1 Ch. 373, 3 All E.R. 65 (1968); MAUDSLEY & BURN 137.19. MAUDSLEY & BURN 156-158.20. See A. GULLIVER, E. CLARK, L. LUSKY & A. MURPHY, GRATUITOUS TRANSFERS 411 (1967).21. MAUDSLEY & BURN 160.22. A. Scorr, ABRIDGEMENT OF THE LAW OF TRUSTS 282 (1960); MAUDSLEY & BURN 200. TheEnglish student reader is referred to American sources at p. 213 and asked if he wouldfavor the introduction of Spendthrift Trusts in England.1973]Baltimore Law ReviewThe impact of the tax collector on the trust device (Chapter 8) iscovered with technical precision. American readers versed in estateplanning will doubtless be pleased to learn that the subject is no lesscomplicated in England than it is here.2 3The Trust portion of the book is concluded by three lengthychapters on the subject of charities. Although the Charities Act of196024 -has made some substantial changes, American readers will feelat home with the author's treatment of charities, cy pres, and theproblems of the administration of charities.Part III of the casebook deals with Trustees. Here again there is muchthat is familiar to American readers, however, a caveat is necessary. Theapplicable rules and principles wear common law garb but there havebeen many statutory changes, the most important of which was theTrustee Act of 1925.2 s Thus, the materials in Chapter 13 (GeneralPrinciples Relating to Trustees), Chapter 14 (Duties of Trustees),Chapter 15 (Powers of Trustees), Chapter 16 (Variation of Trusts),Chapter 17 (Fiduciary Position of Trustees), and Chapter 18 (Breach ofTrusts) must be read carefully with an eye to the special Englishstatutory experience. Some noteworthy cases are quoted with referenceto problems that may today defy solution in any jurisdiction,2 6 andwhich come up again and again. 2 7 The last case in the book is thecelebrated Re Diplock2 8 which applied the doctrine of tracing topermit next of kin to recover in part monies paid to the beneficiaries ofa trust subsequently declared void.So much for a sketch of content, now for an assessment: from theviewpoint of scholarship, I cannot fault the authors' effort. Thecasebook is a teaching tool, not a thesis, and thus, it is not the mostappropriate vehicle for the defense of doctrinal points. I noticed noerrors of commission, and what I might proffer as an error ofomission, someone else might regard as a badge of excellence.It is better then, to assess the book's utility for both British andAmerican readers. As for the former, it is of course a "must" at theacademic level for both students and teachers. English practitionersnurtured on the older textbooks and desiring a convenient collection of23. Professor Maudsley has summarized this topic for American readers in his article, "TaxPlanning in England," 9 SAN DIEGO L. REV. 264 (1972); MAUDSLEY & BURN 227.24. 8 & 9 Eliz. 2, c. 58 (1960). Section 13 of this act changed the rules relating to Cy Pres. Thestatute generally gave more control and supervision of the administration of charities tocharity commissioners and less to the courts; MAUDSLEY & BURN 391.25. 15 & 16 Geo. 5, c. 19 (1925); MAUDSLEY & BURN 425.26. Re Beloved Wilkes's Charity, 3 Mac. & G. 440 (1957); MAUDSLEY & BURN 458. Cf. RESTATE-MENT (SECOND) OF TRUSTS § 187 (1959).27. Boardman v. Phipps, [1967] 2 A.C. 46, 3 All E.R. 721 (1966); MAUDSLEY & BURN 602 (in-volving the duty of fiduciaries to account for profits acquired from their office); Bahnin v.Hughes, 31 Ch. D. 390 (1886); MAUDSLEY & BURN 618 (joint and several liability of trustees);Re Hallett's Estate, 13 Ch. D. 696 (1880); MAUDSLEY & BURN 637 (tracing funds convertedby trustee).28. [1948] Ch. 465, 2 All E.R. 318 (1948); MAUDSLEY & BURN 644.[Vol. 2Book Reviewscase materials would doubtless find the book well worth theinvestment. On the American side, the book's reading public isobviously much more limited. Every law school library should have acopy to place alongside Hanbury's Modern Equity and Lewin on Trusts,or similar English works. American professors of Trusts and Estates willfind its coverage of familiar subjects clear and refreshing. More oftenthan not, unfamiliar areas will be worth dipping into for insights thatcan be passed along to students. Finally, American law students tryingto understand basic concepts or reviewing for exams will profit fromthe time spent in browsing through the pages of the book.To return now to the pedagogical theme posited at the outset of thisreview, Trusts & Estates, Cases & Materials, by Maudsley and Burn,richly deserves a place among the category of "course-books" on thelaw. It is not intended to do the job of an American casebook but itwill do much to give English readers a feel for the case method.Conversely, for American readers it shows the English case andstatutory materials as products of a living system and not simply asexamples of what used to be "at common law" or "in equity" inEngland.HOW TO PROVE DAMAGES IN WRONGFUL PERSONAL INJURYAND DEATH CASES. By I. Duke Avnet, Englewood Cliffs, NewJersey: Prentice-Hall, Inc. 1973. Pp. 280. $16.00. Mr. Avnet receivedhis A.B. and J.D. from New York University in 1932, and is nowpracticing law in Baltimore, Maryland. Reviewed by Eugene J.Davidson.*It is not uncommon to hear of large dollar negligence verdicts wherethe liability was somewhat dubious and the injuries were less thansubstantial, and of minimal verdicts where both liability and substantialinjuries seemingly were clear. Indeed this reviewer can recall an instancein which two suits arising from the same accident were tried on thesame day by different counsel. One verdict was almost four times asgreat as the other, although the difference in the injuries was not thatsignificant. The logical question is why? Was it because of the trialjudge? Jury composition? Defense counsel? Plaintiff's mannerisms?None of these factors could be said to account for the disparity in theverdicts, as the judge in each case was equally accustomed to negligencelitigation, the jurors came from the same panel, defense counsel werefrom the same insurance carrier's stable of trial counsel, and there wasno ostensible difference in the conduct or appearance of the plaintiffs.There was, however, a clear distinction in the trial strategy of plaintiff's* Professor, University of Baltimore School of Law.1973]

Book Reviews: Trusts and Trustees, Cases and Materials

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Book Reviews: Trusts and Trustees, Cases and Materials

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