Rick Carne
"Suggestions that a trustee is the settlor's agent are out of line with traditional understanding of the trustee's obligation to the public. A trustee does not lose his personal identity by assuming his fiduciary office. He is neither an agent of the settlor nor of the trust estate. Thus his torts and contracts are his own, and his liability must be met initially out of his own pocket. That he is acting pursuant to the trust terms or that the settlor attempted to excuse his conduct in advance is no defense against an innocent outsider, even though both are arguments to be made in his action for reimbursement out of the trust estate. Although the rule of personal liability originated in the refusal of the law courts to admit a trust's existence, its modern continuance has been justified as the fairest procedure for allocating responsibility. The law recognizes that no trust is self-executing. It exists only through the acts of living persons who must assume responsibility for those acts. A few statutory alterations of the rule have been made, but they are designed for the most part, to augment the claimant's remedies and not to relieve the trustee of liability."
Elias Clark, Charitable Trusts, The Fourteenth Amendment and the Will of Stephen Girard, 66 Yale Law Journal 979 (1954) at 988.
Printed copy · Anthology Volume 5, page 193
