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Book Review
| Chantal Stebbings, The Private Trustee in Victorian England, Cambridge: Cambridge University Press, 2002. Pp. xxvii + 201. $65 (ISBN 0-521-78185-X).
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| According to one of the central arguments of this book, the nineteenth century saw a transformation in the kinds of use to which private trusts were put. Where in the eighteenth century, the archetypal trust aimed to preserve and secure the fortunes of landed families over many generations, in the nineteenth century, trusts were increasingly adopted by the middle classes to provide for the more immediate well being for their families. In the event, as Chantal Stebbings shows, the trust proved hard to adapt to their needs, for the fundamental assumptions of the law continued largely to reflect the "static" eighteenth-century world of landed trusts. Victorians who wanted to maximize the capital and income of the trust were hampered firstly by the restrictive views taken by courts of equity regarding the kinds of investments trustees should be authorized to make. Judges continued to regard the preservation of the trust fund as paramount and disapproved of any investments that might jeopardize it. Secondly, the potential liabilities of trustees remained very great, the law paying more regard to their duties than their rights. Trustees were held to account for any breaches of the trust, including those made from erroneous interpretations of the trust deed, or from transgressions made at the bidding of beneficiaries to answer some pressing need. Thirdly, the notion that the trustee should be an unpaid amateur ran against the increasing need for remunerated professional advice in the increasingly complex business world of the nineteenth century. To make things worse, if these basic principles of trust law were often unhelpful, its details could be nightmarish. If a trustee had difficulty in knowing how courts of equity would regard the extent of his powers, things were thrown into more confusion by the piecemeal addition of statutory reforms, which often encountered hostility from the judges. |
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It was little wonder, then, that as the century went on, both the press and the legal profession were increasingly aware of the difficulties of finding reliable men who would act as trustees. A number of steps were taken to ease the problem, such as the passing of St Leonards's Trustee Relief Act in 1859, which relieved trustees from liability for honest breaches of trust. The powers of trustees to delegate, and the extent of their liabilities for their agents, were gradually made clearer; and by the end of the century a good deal of trust administration was handled by solicitor-trustees, who were able to charge for work qua solicitor, though not qua trustee. Nevertheless, as Stebbings shows, the standard of care expected of trustees remained high, that of the businessman rather than of the private individual looking after his own affairs; and indeed the "ordinary prudent man of business" test was rendered ever more exacting by the court, becoming higher than that expected in the real business world. |
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As its title indicates, this is a history of the express private trust in the nineteenth century that does not discuss how the law dealt with public trusts, whether charities or trustees for public works, or with the operation of fiduciary principles in other commercial contexts. Its prime attention is focused on the position of the private trustee, whose relationships with the settlor, the beneficiaries, and co-trustees are examined in consecutive chapters. There are also chapters that examine the liability of trustees for their transgressions and their ability to act in a commercial context. In all of these chapters, Stebbings shows clearly and fluently the risks and liabilities encountered by trustees, giving a rounded and comprehensive picture of the trustee. It is particularly valuable for drawing attention to the importance of this hitherto much neglected subject, both for legal history and for social history. It is, however, a relatively short book and indeed ends rather abruptly, without a conclusion. Given its importance, some readers may regret that the author did not seek to put her material into some wider contexts, both doctrinal and social. Such contexts might have given a greater sense of development across the century than is exhibited in the book. There is, for instance, relatively little discussion of the development of equitable doctrine. Equally, the question of who were the "consumers" most keen to use courts of equity in private trust cases might have been further explored, as well as how the "suppliers" of law responded to their needs. Stebbings shows, not least from her sampling of material in the Devon Record Office, that the use of the trust was widespread in middle class communities (though it is a matter of regret that she uses this material more for illustrating of how deeds were drawn than for giving a social profile of the settlors, trustees, and beneficiaries). Yet one wonders how many of these people in fact came before the Chancery, whose horrors were all too familiar to the Victorian readers of Bleak House. The problems of the Chancery impelled parliamentary reformers to attempt to make the court more accessible to the smaller suit, which was regarded as effectively barred from the court, by promoting legislation of the sort indicated in this book. Yet equity judges were perhaps likelier for most of the century to encounter larger trusts involving landed estates than the smaller middle class trust; which may in turn explain their often conservative mentality. There is, of course, always more to be said. However, that fact should not detract from the work that has been done, and we should be grateful to Professor Stebbings for providing a clear, lucid, and readable overview of this most interesting subject. |
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| Michael Lobban
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| Queen Mary, University of London |
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