The Nature of the Trust
“The classic definition of a trust is generally taken to be that of Sir Arthur Underhill which he set out in the following terms:
A trust is an equitable obligation, binding a person (called a trustee) to deal with property owned by him (called trust property, being distinguished from his private property) for the benefit of persons (called beneficiaries or, in old cases, cestuis que trust), of whom he may himself be one, and any one of whom may enforce the obligation.
This definition recognizes that the trust is enforced by equity, rather than by the common law. The common law does not recognize the rights of any person to property other than the legal owner of that property and consequently the common law will not recognize the equitable interests of beneficiaries.”
So we do not own the estate property at common law but have merely an equitable interest to the estate property, a beneficial title and interest but also, and more importantly a PRIVATE claim to the estate in equity.
Cestui Que Vie (life beneficiary) Act 1666 says:
1. An Act for Redresse of Inconveniencies by want of Proofe of the Deceases of Persons beyond the Seas or absenting themselves, upon whose Lives Estates doe depend.
Recital that Cestui que vies have gone beyond Sea, and that Reversioners cannot find out whether they are alive or dead. Whereas diverse Lords of Mannours and others have granted Estates by Lease for one or more life or lives, or else for yeares determinable upon one or more life or lives And it hath often happened that such person or persons for whose life or lives such Estates have beene granted have gone beyond the Seas or soe absented themselves for many yeares that the Lessors and Reversioners cannot finde out whether such person or persons be alive or dead by reason whereof such Lessors and Reversioners have beene held out of possession of their Tenements for many yeares after all the lives upon which such Estates depend are dead in regard that the Lessors and Reversioners when they have brought Actions for the recovery of their Tenements have beene putt upon it to prove the death of their Tennants when it is almost impossible for them to discover the same, For remedy of which mischeife soe frequently happening to such Lessors or Reversioners…
1. An Act to put right any misunderstanding by proof of the “Death of a Person beyond the Seas” or not existing themselves, upon whose property does depend.
Public Notice that Cestui que vie (Public NAME/Body Corporate/Beneficiary/Interested party to property in estate) has gone beyond Sea, and the party entitled to receive the estate, the grantor (Government through the law of reversion), cannot find out whether they (Beneficiary/Interested party to property in estate) is alive or dead. It is a fact that, diverse Lords of Manors and others have granted Estates by Lease for one or more lives, or else for years determinable upon one or more life or lives. And it has often happened that such people for whose lives such Estates have been granted have gone beyond the Seas or absented themselves for many years (not used the estate). The person who is renting and granting the property and the person who is entitled to have the property back cannot find out whether such person (Beneficiary/Interested party) be alive or dead (because the estate property has NEVER been used). By reason of such, the person who is renting and granting the property and the person who is entitled to have the property back have been held out of possession of their estate for many years after all the lives upon which such Estates depend are dead in regard that the person who is renting and granting the property and the person who is entitled to have the property back, have brought Actions for the recovery of their interest and it has been proven that the death of their Tenants(User of the NAME and interested party) when it is almost impossible for them to discover the same. For remedy of which mischief(damage caused by another person’s action or inaction) so frequently happening to such person who is renting and granting the property or the person who is entitled to have the property back.
Its important to note that we are granted a tenancy on land or lease and are assumed to be dead by declaration of this Act because, at common law, the owner has a reversionary interest in the property they own upon any death in absentia.
“Most countries have a set period of time (seven years in many common law jurisdictions) after which an individual is presumed to be dead if there is no evidence to the contrary. However, if the missing individual is the owner of a significant estate, the court may delay ordering a death certificate to be issued if there has been no real effort to locate the missing person. If the death is thought to have taken place in international waters or in a location without a centralized and reliable police force and/or vital statistics registration system, other laws may be in effect.“
Intestacy is the condition of the estate of a person who dies owning property greater than the sum of their enforceable debts and funeral expenses without having made a valid will or other binding declaration. Alternatively this may also apply where a will or declaration (perhaps the decleration of Cestui Que Vie Act 1666) has been made, but only applies to part of the estate, the remaining estate forms the “Intestate Estate.”
Intestacy law, also referred to as “the law of descent and distribution” or “intestate succession statutes”, refers to the body of law that determines who is entitled to the property from the estate under the rules of inheritance.
In England and Wales the Intestacy Rules have been uniform since 1925 in the Administration of Estates Act 1925. Some other very important Acts were passed this year also. Some of these are:
Part 2 of the Cestui Que Vie Act 1666 says:
2. Cestui que vie remaining beyond Sea for Seven Years together and no Proof of their Lives, Judge in Action to direct a Verdict as though Cestui que vie were dead.. If such person or persons for whose life or lives such Estates have beene or shall be granted as aforesaid shall remaine beyond the Seas or elsewhere absent themselves in this Realme by the space of seaven yeares together and noe sufficient and evident proofe be made of the lives of such person or persons respectively in any Action commenced for recovery of such Tenements by the Lessors or Reversioners in every such case the person or persons upon whose life or lives such Estate depended shall be accounted as naturally dead, And in every Action brought for the recovery of the said Tenements by the Lessors or Reversioners their Heires or Assignes, the Judges before whom such Action shall be brought shall direct the Jury to give their Verdict as if the person soe remaining beyond the Seas or otherwise absenting himselfe were dead.
2.Cestui que vie (Public NAME/Body Corporate/Beneficiary/Interested party to property in estate) remaining beyond Sea for Seven Years continually and no proof of their lives, Judge in Action to direct a Verdict as though Cestui que vie (Public NAME/Body Corporate/Beneficiary/Interested party to property in estate) were dead.. If such person for whose life such Estate has been or shall be granted as aforesaid shall remain beyond the Seas or elsewhere absent themselves in this Realm by the space of seaven (this is how they have spelt seven in the actual Act) years together and no sufficient and evident proof be made of the life of such a person respectively in any Action commenced for recovery of such estate by the person who is renting and granting the property or the person who is entitled to have the property back, in every such case the person upon whose life such Estate depended shall be accounted as naturally dead. And in every Action brought for the recovery of the said estate by the person who is renting and granting the property or the person who is entitled to have the property back, their Heires or Assignes(donner/grantor/assignor), Judges before whom such Action shall be brought shall direct the Jury (direct them to the law, just made I might add) to give their Verdict as if the person (Beneficiary/Interested party) so remaining beyond the Seas or otherwise absenting himself were dead.
So we see that the interest granted to us in the estate in the name of our person, is judged to have been unused and has created a possible damage through inaction. The government have the right to take back the estate property they granted but they do not issue a death certificate untill they are sure that the interested party who is leasing the estate (for ther duration of their life) is actually dead.
Part 3 of the Cestui Que Vie Act 1666 says:
3. If the supposed dead Man prove to be alive, then the Title is revested. Action for mean Profits with Interest.. Provided alwayes That if any person or [X3person or] persons shall be evicted out of any Lands or Tenements by vertue of this Act, and afterwards if such person or persons upon whose life or lives such Estate or Estates depend shall returne againe from beyond the Seas, or shall on proofe in any Action to be brought for recovery of the same [to] be made appeare to be liveing; or to have beene liveing at the time of the Eviction That then and from thenceforth the Tennant or Lessee who was outed of the same his or their Executors Administrators or Assignes shall or may reenter repossesse have hold and enjoy the said Lands or Tenements in his or their former Estate for and dureing the Life or Lives or soe long terme as the said person or persons upon whose Life or Lives the said Estate or Estates depend shall be liveing, and alsoe shall upon Action or Actions to be brought by him or them against the Lessors Reversioners or Tennants in possession or other persons respectively which since the time of the said Eviction received the Proffitts of the said Lands or Tenements recover for damages the full Proffitts of the said Lands or Tenements respectively with lawfull Interest for and from the time that he or they were outed of the said Lands or Tenements, and kepte or held out of the same by the said Lessors Reversioners Tennants or other persons who after the said Eviction received the Proffitts of the said Lands or Tenements or any of them respectively as well in the case when the said person or persons upon whose Life or Lives such Estate or Estates did depend are or shall be dead at the time of bringing of the said Action or Actions as if the said person or persons where then liveing.
3.If the presumed dead Man proves to be alive, then the Title is revested. Law suite means benefit which derives from estate rights and claims. Provided always That, if any person shall be evicted(deprived of possession) out of any Lands or estates by virtue of this Act, and afterwards if such person upon whose life Estate depend shall return again from beyond the Seas, or shall on proof in any Action to be brought for recovery of the same [to] be made appear to be living; or to have been living at the time of the Eviction (Evidenced by the Birth Certificate and being an equitable interest in the estate property), That then and from thence forth the Tennant (NAME/Beneficiary) or private person leasing the granted estate by the tenant who was outed of the same, his or their ExecutorsAdministrators or Assigns shall or may re-enter, repossess(to take back property through judicial processes), have hold(To maintain ownership of a security over a long period of time) and enjoy the said Lands (Real estate or property) or interest in his or their former Estate for and during the Life or so long term as the said person upon whose Life the said Estate depend shall be living, and also shall upon Action or Actions to be brought by him or them against the person who is renting and granting the property, the person who is entitled to have the property back, or (Public NAME/Body Corporate/Beneficiary/Interested party to property in estate) in possession, or other persons respectively which since the time of the said Eviction received the Profits of the said Lands (Real estate or property) or (interest)recover for damages the full Profits of the said Lands(Real estate or property) or interest to the estate respectively with lawful Interest for and from the time that he or they were outed of the said Lands (Real estate or property) or (interest) , and kept or held out of the same by the said person who is renting and granting the property, the person who is entitled to have the property back, or users of the estate or other persons who after the said Eviction received the Profits of the said Lands (Real estate or property) or (interest) or any of them respectively as well in the case when the said person whose Life such Estate did depend. Or shall be dead at the time of bringing of the said Action or Actions as if the said person then living.
The Nature of the Trust PDF
“(ii) Since the equitable jurisdiction to enforce trusts depends upon the conscience of the holder of the legal interest being affected, he cannot be a trustee of the property if and so long as he is ignorant of the facts alleged to affect his conscience . . . “17
To put that proposition another way: to be a trustee, one must have knowledge of some factor which affects one’s conscience. The trust is imposed only from the time at which the trustee had the requisite knowledge of the factor which is said to affect his conscience. By way of example: simply because a person took possession of a bicycle that would not necessarily render him a trustee of that bicycle, unless and until he became aware that the bicycle belonged to another person and therefore that it was unconscionable for him to purport to retain beneficial title in it. This notion is considered further below in relation to constructive trusts.18 Another judicial conceptualization of this point ran as follows: The typical case of a trust is one in which the legal owner of the property is constrained by a court of equity so to deal with it as to give effect to the equitable rights of another.19
The core of the trustee’s obligation is therefore to recognize the equitable rights of the beneficiaries: an obligation which gives rise to a broad range of fiduciary duties…”
The trustees to the estate in question need to be made aware of their fiduciary duties in court (Chancery) due to our claim to the estate and any interest WE ASSIGN to others.
“That uses and trusts arose originally from dealings in land is evident from Coke’s definition of the trust as being:
“. . . a confidence reposed in some other, not issuing out of the land but as a thing collateral thereto, annexed in privity to the estate of the land, and to the person touching the land, for which cestui que trust has no remedy but by subpoena in the Chancery.21″
What Coke means here, we think, is that we are not transferring the property itself, but just assigning an interest in the land being the collateral which is a private issue from the estate connected only to the one who has the authority to do so (the one holding the claim/right), and ONLY by subpoena in the Chancery (courts of equity).
Common law only recognises the legal title holder and not interested parties. Therefore ‘the common law courts did not recognise the trust’. http://www.lawteacher.net/PDF/Equity.pdf
A summary of what the Cestui Que Vie is and how it affects us
How Cestui Que Vie Works
Cestui que vie is French for he who lives. It is a legal term for an individual who is the beneficiary of a trust or an insurance policy, with rights to property and the income and profits that the property provides. A cestui que trust is the person entitled to an equitable, rather than legal, trust in the estate assets. The concept is used in modern life and health insurance policies, where cestui que vie is an individual whose life measures the duration of the insurance contract. In these contracts, cestui que vie is known as the policyholder, insured, or policy owner.
Cestui que vie as a legal concept dates to the medieval period, specifically England. During this time, the owners of farms and other properties could be absent for extended periods of time as they traveled, whether for business or religious purposes. It became important to ensure that family members, business partners or tenants could use the property without fear of it being expropriated by feudal lords. While the individual was away, a trustee took care of the land but did not retain legal ownership over the property. The trust often relied on a good faith understanding between the parties.
In practice, it was often a way to avoid paying taxes by granting land and property to the Church, which was exempt from taxation, while still allowing descendants to reside in and enjoy the estates. Henry VIII, under his advisers Thomas Cromwell and Thomas More, attempted to invalidate cestui que vie trusts, a process continued under the English Reformation.
Later, however, after the Great Plague of 1665 and the Great Fire of 1666 had destroyed London, the British government enacted the Cestui Que Vie Act in 1666, which reinstated the legal concept. After those twin catastrophes, hundreds of thousands of British citizens died or fled. In response, the government took all private property into the trust until the proper heirs or owners could be identified—the cestui que vie. Some parts of the 1666 Act are still law in the United Kingdom.
Cestui Que Vie in Modern Times
The legal concepts behind cestui que vie changed a bit over the centuries in order to reduce fraud and to ensure that property owners couldn’t shift their property into trusts in order to dodge creditors. More recently, laws against property held in perpetuity required that parties named as the beneficiaries in a trust should vest, and thus have an interest in the trust rather than passively receive benefits.
When a trust is created it is done for the benefit of a specific individual who is identified in the trust document. In a trust, the cestui que trust is the person who has an equitable interest in the trust. The legal title of the trust, however, is given to the trustee. Cestui qui use, or he who uses, is the person for whose benefit the trust is made. During the medieval period, cestui que use arrangements became so common that they were often assumed to be present even when they had not been arranged.
The Cestui Que Vie act 1666 had been created during or after the great fire of London to ensure that the property of individuals are put into a trust overseen by the government due to many being dead or may have fled during the crisis. Their duty was to look after an individuals property until they return and declare themselves alive.
The Cestui Que Vie act 1707 had been created to ensure that each individual claiming themselves alive can gain access back to their estates and receive compensation for the time they had been away and for the rents and usage of such property and estates be returned (or a portion of) to their rightful owners – This act is the remedy and affidavits must be filed within the petty bag office of the high courts of chancery. (See post on Cestui Que Vie act 1707)