Delegation By Trustees: A Reappraisal
| Date | 01 July 1959 |
| Published date | 01 July 1959 |
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00545.x |
DELEGATION
BY
TRUSTEES: A
REAPPRAISAL
IN
this article
it
is proposed briefly to analyse the effect of the
Trustee Act,
1925,
on
those established principles of equity, which
related to the power of
a
trustee
to
delegate his functions.”
It
will
be suggested that the relevant provisions of this statute should be
interpreted in the light of the pre-1926 decisions; only such an
interpretation can reconcile satisfactorily the various sections
of
the
Act. Consequently,
it
will first
be
necessary to examine the
cases
before the Trustee Act,
1925.
I.
THE
LAW
Baoap.
THE
TRUSTEE
ACT,
1925
The general rule, governing the power of a trustee to delegate
his powers and duties as trustee, was laid down by Lord Langdale
M.R.
in
Turner
v.
Corney
“
Trustees who take
on
themselves the management
of
trust property for the benefit
of
others have
no
right to shift
their duty on other persons; and
if
they employ an agent, they
remain subject
to
the responsibility tcjwards their
cestuis que
trust,
for whom they have undertaken the duty.”
That this principle of
delegatus
non
potest
delegare
could not be
applied in its full rigour was recognised at an early date. In
Ex
p.
Belchier,z
Lord Hardwicke had suggested that a trustee could dele-
gate
in
cases of necessity. “There are two sorts
of
necessity,’’
said his Lordship.
“
First,
legal necessity; secondly, moral neces-
sity.” Legal necessity was simply the rule “that if trustees join
in giving a discharge, and one only receives, the other is not answer-
able, because his joining in the discharge was necessary.” Moral
necessity, however, arose from the
“
usage of mankind;” the trustee
must act
‘‘
as prudently for the trust as for herself, and according
to the usage
of
business.” In accordance with these principles, his
Lordship held that it was common practice, arising from the usage
of
business, to employ a broker to sell tobacco by auction, and to
allow the broker to receive the money resulting from such
a
sale.
These observations of Lord Hardwicke were confirmed by the
in the following terms:
*
I
am particularly indebted
to
Professor
9.
J.
Bailey
who,
in his lectures
on
the
Law
of Trusts, first suggested this problem
to
me. He
has
been kind
enough to read
this
article in typescript and
has
made
a
number
of
acute
criticisms snd suggestions.
1
(1841)
6
Beav.
516. 617.
2
(17Ei)
Amb.
218.
See also
Clough
v.
Bond
(1838) 3
My.
dc
Cr.
490, 497.
881
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