Whitlock[1] in their very recent contributions to our periodical literature.
It is believed that all of the discussions and analyses referred to are inadequate. Perhaps, however, it would have to be admitted that even the great intrinsic interest of the subject itself and the noteworthy divergence of opinion existing among thoughtful lawyers of all times would fail to afford more than a comparatively slight excuse for any further discussion considered as a mere end in itself. But, quite apart from the presumably practical consideration of endeavoring to "think straight" in relation to all legal problems, it is apparent that the true analysis of trusts and other equitable interests is a matter that should appeal to even the most extreme pragmatists of the law. It may well be that one's view as to the correct analysis of such interests would control the decision of a number of specific questions. This is obviously true as regards the solution of many difficult and delicate problems in constitutional law and in the conflict of laws.[2] So, too, in certain questions in the law of perpetuities, the intrinsic nature of equitable interests is of great significance, as attested [3]
- ↑ See A. N. Whitlock, Classification of the Law of Trusts (1913), 1 Calif. Law Rev., 215, 218: "It is submitted," says the writer, "that the cestui has in fact something more than a right in personam, that such a right might be more properly described as a right in personam ad rem, or, possibly, a right in rem per personam."Surely such nebulous and cumbrous expressions as these could hardly fail to make "confusion worse confounded."
- ↑ 10 See Beale, Equitable Interests in Foreign Property, 20 Harv. L. Rev. (1907), 382; and compare the important cases, Fall v. Eastin (1905), 75 Neb., 104; S. C. (1909), 215 U. S., 1, 14-15 (especially concurring opinion of Holmes, J.); Selover, Bates & Co. v. Walsh (1912), 226 U. S., 112; Bank of Africa Limited v. Cohen (1909), 2 Ch. 129, 143.
- ↑ See Walter G. Hart (author of "Digest of Law of Trusts"), The Place of Trust in Jurisprudence (1912), 28 Law Quart. Rev., 290, 296. His position is substantially that of Ames and Maitland.At the end of this article Sir Frederick Pollock, the editor, puts the query: "Why is Trust not entitled to rank as a head sui generis?"
a mere agent, upon whom the law has conferred the power and imposed the duty of administering the property of another person. In legal theory, however, he is not a mere agent, but an owner. He is a person to whom the property of someone else is fictitiously attributed by the law, to the intent that the rights and powers thus rested in a nominal owner shall be used by him on behalf of the real owner."
