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Full text of "Express trusts under the common law : a superior and distinct mode of administration, distinguished from partnerships, contrasted with corporations; two papers submitted to the tax commissioner of Massachusetts, under chapter 55 of the resolves of 1911 ..."

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- "VOLUNTARY ASSOCIJITIONS." 




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Express trusts under the common law 



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EXPRESS TRUSTS 

UNDER THE COMMON LAW 

A Superior and Distinct Mode of 
Administration 

Distinguished from Partnerships 
Contrasted with Corporations 



Two papers submitted to the Tax Commissioner of 

Massachusetts, under Chapter 55 of the Resolves 

of 1911, requiring a report from him on 

" VOLUNTARY ASSOCIATIONS" 



By 
ALFRED D. CHANDLER, ESQ- 

OF THE BOSTON BAR 



BOSTON 

Little, Brown & Co. 

1912 






Copyright, 1912 
By ALFRED D. CHANDLER 



The Riverdale Press, BrookUne, Mass., U. S. A. 



By chapter 55, Resolves of 1911, the Tax Commissioner 
of Massachusetts was directed to make an investigation 
of Voluntary Associations organized or doing business in that 
Commonwealth under a written instrument or declaration 
of trust, the beneficial interest under which is divided into 
transferable certificates of participation or shares, with a 
view to determining the present legal status of such Volun- 
tary Associations and whether or not their prohibition or 
further control and regulation by that Commonwealth is 
advisable and in the public interest. The resolve is as 
follows : — 

CHAPTER 55. 
RESOLVE TO PROVIDE FOR AN INVESTIGATION OF VOLUNTARY 
ASSOCIATIONS ORGANIZED OR DOING BUSINESS IN THIS 
COMMONWEALTH UNDER WRITTEN INSTRU- 
MENTS OR DECLARATIONS OF TRUST. 

RESOLVED, That the tax commissioner is hereby authorized and 
directed to make an investigation of voluntary associations organized or doing 
business in this Commonwealth under a written instrument or declaration 
of trust, the beneficial interest under which is divided into transferable 
certificates of participation or shares, with a view to determining the pres- 
ent legal status of such Voluntary associations, and whether or not their 
prohibition or further control and regulation by the Commonwealth is advisable 
and in the public interest. The attorney- general is hereby directed to give 
the tax commissioner such assistance as the latter may desire in making 
this investigation, and said commissioner may if he deems it advisable 
hold public hearings, after due notice, and shall consult with the board of 
railroad commissioners and the board of gas and electric light commis- 
sioners with especial reference to the effect of such voluntary associations 
upon the supervision and regulation of gas, electric light and street railway 
companies in this Commonwealth. The tax commissioner shall report the 
result of his investigation to the general court on or before the second Satur- 
day of January, nineteen hundred and twelve, with such recommendations 
as he may deem advisable: and he shall submit, with his report, drafts 
of any bill or bills necessary to carry into effect any recommendation which 
he may make. In conducting the above investigation, the tax commis- 
sioner may employ such assistance and incur such reasonable expenses, 
not exceeding twenty-five hundred dollars, as may be approved by the 
governor and council; and said commissioner shall have power to require 
the attendance and testimony of witnesses and the production of all books 
and documents relating to any matter within the scope of the said investi- 
gation. Witnesses shall be summoned in the same manner and be paid the 
same fees as are witnesses in the municipal court of the city of Boston. 
(Approved April 15, 1911.) 



CITATIONS. 

Page 

Ames' Cases on Trusts 33 

Bank of Topeka v. Eaton. 100 Fed. Rep. 8 32, 33 

Black's Constitutional Law 10 

Broadway Nat. Bank v. Wood, 165 Mass. 312 33 

Brown v. Eastern Slate Co., 134 Mass. 590 33 

Cooley's Constitutional Limitations 34 

Cox V. Hickman, 9 C. B. N. S. 47; 8 H. of L. Cases 268 28, 29, 30 

Eliotv. Freeman, 220 U. S. 178 13, 26 

Everett v. Drew, 129 Mass. 150 28, 31 

. Farmers' Loan and Trust Co. v. Chicago, etc., 27 Fed. Rep. 146 9 

Federal Constitution, Art. FV, Sec. 2 9 

Federal Statutes, Annotated, vol. 9, pp. 178-9 9 

George on Partnership 30 

Gilmore on Partnership 30 

Gleason v. McKay, 134 Mass. 419 17, 18, 19, 23, 28, 29, 34 

Governor Fernald of Maine 1 

Hamilton's (Alexander) Works 6, 23 

Hewitt V. Phelps, 105 U. S. 393 33 

Hussey v. Arnold, 185 Mass. 202 32 

Johnson v. Lewis, 6 Fed. Rep. 27 19, 28, 29 

Lackett v. Rumbaugh, 45 Fed. Rep. 23 19, 27 

Law Quarterly Review, Oct., 1905, p. 365 18 

Mason v. Pomeroy, 151 Mass. 164; 7 L. R. A. 771 19, 28, 29, 33 

Massachusetts Business Corporations, Hall 18 

Mayo V. Moritz, 151 Mass. 481 19, 28, 29, 31, 33 

Miller v. Simpson, 107 Va. 476; 18 L. R. A. (N.S.) 963, note 30 

Minot V. Winthrop, 162 Mass. 113 34 

Norton v. Phelps, 54 Miss. 467 33 

Odd Fellows Hall Association v. McAllister, 153 Mass. 292 33 

O'Keefie v. Somerville, 190 Mass. 110 17 

Opinion of the Justices, 196 Mass. 603 17, 18, 23, 34 

Page on Contracts 32 

Parsons on Contracts 32 

Parsons on Partnership 15, 27, 33 

Paul V. Virginia, 8 Wall. 168 9 

Perry on Trusts 9, 32 

Phillips V. Blatchford, 137 Mass. 510 20, 28, 29 

Ricker v. American Load and Trust Co., 140 Mass. 346 26 

Roby V.Smith, 131 Ind. 342; 15L.R.A.792 9 

Shirk v. City of La Fayette, 52 Fed. Rep. 857 9 

Shumaker's Law of Partnership 30 

Simmons, Mr. J. Edward (Banker) 20 

Smith V. Anderson, L. R. 15, Ch. D. 247 19, 27, 28 

Spotswood V. Morris, 12 Idaho, 360; 6 L. R. A. (N. S.) 665 16 

Story's Equity 33 

Taft V. Ward, 106 Mass. 518 20 

Taylor v. Davis, 110 U. S. 330 19, 27, 31 

Trustees' Hand Book, Loring 32 

Underhill on Trusts 9, 33 

Wald's Pollock on Contracts 22, 26 

Warner v. Beers, 23 Wendell, 103 18, 22, 23, 32 

Welles-Stone Mercantile Co. v. Grover, 7 N. D. 460; 41 L. R. A. 252 27, 28, 

29, 32, 33 

Woerner on Administration 31 

Wilson, The Hon. Woodrow 5, 6, 20, 35 



Express Trusts. Corporations. 
"Voluntary Associations." 



First Paper, November 20, 1911. 

The Hon. Woodrow Wilson, in his cogent address entitled 
"The Lawyer and the Community," before the American 
Bar Association, at Chattanooga, Tenn., August 31, 1910, 
transmitted later in pamphlet form, challenged the profes- 
sion in demanding that the impersonal feature of corpora- 
tions should be restricted as the one obstacle that has 
blocked progress toward effective corporation reform. This 
question, he says: — 

"Stands in the foreground of all modern economic questions so far as 
the United States is concerned." . . . "Liberty is always personal, never 
aggregate; always a thing inhering in individuals taken singly, never in 
groups or corporations or communities. The individual unit of society is 
the individual." . . . "That is why I plead so earnestly for the indi- 
vidualization of responsibility within the corporation, for the establishment 
of the principle of law that a man has no more right to do a wrong as a 
member of a corporation than as an individual." 

Mr. Wilson was promptly advised from Boston that his 
call upon the profession had been anticipated in Massachu- 
setts by numerous Express Trusts declared in that state, 
and which exercise the common-law natural right to employ 
all the mere incidents or accessaries used in the manage- 
ment or mobility of property, such as transferable shares, 
bond issues, promissory notes etc., but which do not and 
need not arrogate any essential of a corporation, such as 
merging natural persons into an impersonal, artificial entity, 
or suing or being sued under their designated name, and 
which (with proper provision for reimbursement) place upon 
Trustees a personal responsibility that corporate laws 



are especially designed to evade, and which evasion, legal- 
ized by State Legislatures, both confirms the popularity 
and causes the condemnation of corporations. 

Mr. Wilson was referred to, among others, the example 
furnished a century ago by Alexander Hamilton, who em- 
ployed this trust method — in use long before his day — 
in organizing the Merchants Bank of New York; and he 
was further reminded that some corporation promoters 
might discourage this effective personal bulwark; and that 
States like Maine and New Jersey, that have coined money 
by marketing corporation charters created on the imper- 
sonal basis, might frown upon this sound, independent, 
common-law trust method of administration. 

Mr. Wilson promptly expressed his sincere appreciation 
of the information that had called his attention "to a most 
interesting matter" which he wished "more carefully to 
look into after the distractions of the present campaign are 
over." 

In guarding the State and the business world from the 
pitfalls of impersonal corporate bodies, both the Bar and the 
Bench should encourage the application to affairs of the 
elastic, efifective, and well-grounded principles of common- 
law Express Trusts. Mr. Wilson, in his Chattanooga 
address, insisted that although 

"Corporations must continue to be used as a convenience in the trans- 
action of business, yet they must cease to be used as a covert to wrong- 
doers." 

And he added : — 

"It is the duty of lawyers, of all lawyers, to assist the makers of law and 
the reformers of abuses by pointing out the best and most effective way to 
make it." 

Express Trusts, which now meet with augmented ap- 
proval in Massachusetts, and the merits of which the 
country at large begins to appreciate, put the legal estate 



entirely in one or more, while others have a beneficial inter- 
est in and out of the same, but are neither partners nor agents. 
This simple, adequate, common-law right, any person or 
group of persons sui juris may exercise, the Trustees 
issuing certificates of beneficial interest divided into shares, 
as well as issuing bonds and other obligations, as freely as 
they open a bank account, have a pass book, and draw and 
circulate checks, or make whatever contractual relations 
are allowed to persons as a natural right. 

Express Trusts have been in successful operation in Great 
Britain and America for generations. They have been 
and are applied wisely in both hemispheres to property 
valued at hundreds of millions of dollars. To affirm at 
this date that considerations of public policy do not counte- 
nance Express Trusts that utilize conventional business 
accessaries is to challenge sound economics. Public policy 
is not always immutable. Neither lawyers nor laymen 
can ignore experience or the truth. It was Coleridge 
who wrote that "A man who squares his conscience 
by the law was a common paraphrase or synonyme of a 
wretch without any conscience at all." If public policy 
in this instance is to be measured — as it should be — by a 
standard of stability rather than of instability, the startling 
contrast presented later between Express Trusts and Massa- 
chusetts corporations ought to modify some notions of 
public policy. It is the substantiality of the trust principle, 
based upon personal responsibility and efficiency, that has 
so commended it over loose, evasive corporation laws found 
from the Atlantic to the Pacific. 

Well-drawn modern Express Trusts avoid no legal obliga- 
tion, much less do they evade any. If perverted they 
should of course be restrained. They avoid needless busi- 
ness obstacles; they require no arbitrary fixed capitaliza- 
tion; they can dispense with the deceptive fiction of a par 
value, a fiction that the New York State Bar Association 
is reported to have indorsed "as a tool of many rascals 



8 

and the honest servant of no man"; they promote sound 
administration; they stimulate mercantile intercourse; and 
they secure a higher standard of efficiency through active 
Trustees than is generally attained through the usual per- 
functory, often irresponsible, dummy, corporate directors 
who fail to direct, and who when called to account in Court 
are admonished that the high criterion of a trusteeship 
should be their canon of conduct rather than that of a shifty 
directorate. 

Trustees under Express Trusts pay taxes on their real 
and personal property. Trustees have to report fully to 
their beneficiaries, or be called to account in Court by them. 
Publicity, as with partnerships, is secured to all who are 
entitled to it. Public curiosity — mere prying, or prurient 
curiosity — - is not gratified, and ought not to be. The 
Trustees are protected, as they should be, from personal 
loss, by a provision for exoneration or reimbursement from 
the estate, except in case of wilfull default or of fraud. The 
customary provision in the declaration of trust requiring 
all parties who deal with the Trustees to look to the estate 
for ultimate security, rather than to the Trustees or to the 
beneficiaries conforms with a common-law principle long 
sanctioned. Such a provision is a strong assurance of the 
merits of the Trust; because if its foundation does not 
permit of a substantial superstructure, as the basis of 
credit, the Trust is not likely to be declared or to induce 
desirable Trustees to accept it. Corporations on the other 
hand offer a premium, as it were, for a weak foundation based 
upon an irresponsible artificiality, and hence go to the wall 
by the thousands. 

Express Trusts, under the common law, regulated by 
equitable principles and practice, furnish some of the 
highest models for administration. Corporations under 
State laws invite and are responsible for the greatest busi- 
ness scandals in our history. One who prefers to drink 
from a pure spring on a common cannot justly be charged 



9 

with evading a nearby licensed barroom. The latter may 
often be wisely avoided. 

As for the equitable laws that regulate trusts and Trus- 
tees, they are a well-formed system which Mr. Justice Story 
pronounced as even more symmetrical in the United States 
than the original system in England. 

Mr. Perry, one of America's leading authorities upon 
trusts, afifirms that: — 

"Every kind of valuable property, both real and personal, that can be 
assigned at law may be the subject-matter of a trust.'''' And further: — 

"The person who creates the trust may mould it into whatever form he 
pleases." (Perry on Trusts, I, §§67, 287; Underbill on Trusts, p. 57, Amer.Ed.) 

The Federal Constitution protects Trustees as "citizens" 
throughout continental United States; but corporations, 
not being "citizens" as that word is used in the Constitu- 
tion, do not have the privileges and immunities of citizens. 
Corporations cannot enter another State except on the terms 
which that State prescribes. But Trustees under a will, or 
under an express declaration of trust, are natural persons 
and are "citizens" in the fullest sense under the Constitu- 
tion, and, as natural persons possessed of both state and 
national citizenship, are "entitled to all the privileges and 
immunities of the citizens in the several States." 

Fed. Con., Art. IV. Sec. 2. 

Farmers' Loan & Trust Co. v. Chicago, etc., 27 Fed. Rep. 146, 149. 

Shirk V. City of La Fayette, 52 Fed. Rep. 857. 

Roby V. Smith, 131 Ind. 342, 345-6; 15 L. R. A. 792, 794-5. 

9 Federal Statutes Annot., pp. 178-9. 

Mr. Justice Field of the Supreme Court of the U. S., in 
his opinion in the famous case of Paul v. Virginia, 8 Wal- 
lace, 168, 180, wrote: — 

"It has been justly said that no provision in the Constitution has tended 
so strongly to constitute the citizens of the United States one people as 
this." 



10 

The purpose for which this clause was inserted in the 
Constitution 

"was to prevent the States from making invidious discrimination against 
non-residents, and to promote ttie unification of the American people, by 
breaking down State lines, in respect to the enjoyment of social and busi- 
ness privileges and the favor and protection of the laws." (Black's Const. 
Law, p. 292.) 

In most cases business men do not need a corporate 
charter, except for railroads, for the right of eminent do- 
main, for banks, for insurance, and for certain public ser- 
vice functions. In most cases the State gives no adequate 
equivalent for its charter. It is often a useless incum- 
brance; and it often stimulates mercantile iniquity. 

Our corporation laws throughout this country have be- 
come such a legalized means of evasion because of the 
impersonality, the artificial entity which they sanction, 
that they have elicited caustic criticism from executives, 
economists, educators, and business men. 

In conservative Massachusetts over four thousand (4,154) 
of its State corporate charters, representing many millions 
of dollars of authorized capital stock, were dissolved by its 
Legislature in the last five years, an average of over two a 
day, omitting those otherwise dissolved. This shows that 
even Massachusetts' conservative corporation laws are a 
delusive will-o'-the-wisp to thousands of impressionable, 
misdirected people. This State incorporates about 1,200 
or 1,300 companies a year, making for the past five years 
from about 6,000 to 6,500, and over 4,000 — ^or about 64 
per cent — were dissolved in that time. A very large num- 
ber of Massachusetts corporations appear to be mere fugitive 
organizations, based upon credulity, and to be plucked in 
transit. This State cannot in justice demand the applica- 
tion of such an administrative system to every enterprise. 
It cannot properly insist upon a uniform, undiscriminating, 
and often inferior business method, whether for industrial or 



11 

taxation purposes, and then as an excuse say that it is not its 
function "to join in the futile attempt to save the foolish 
from the consequences of their folly." The State's corpora- 
tion record in a large part on this score is self-incriminating. 
Here it is condensed, the list covering about ninety-four 
pages of the State laws : — 

MASSACHUSETTS CORPORATIONS DISSOLVED 
IN THE LAST FIVE YEARS. 

Number 
Acts of dissolved 

1907, ch. 290, pp. 226-250 1,164 

1909, ch. 347, pp. 296-324 1,185 

1910, ch. 609, pp. 662-684 932 

1911, ch. 363, pp. 331-351 873 

4,154 

Contrast the above excessive corporate mortality with 
the remarkable vitality of Express Trusts as furnished by 
the lists of real estate trusts in Boston, published by Bur- 
roughs & DeBlois,* the first of which appeared in 1899, and 
contained seventeen such trusts, every one of which are 
found today, with many more, on the monthly list which 
that firm publishes, and which list now represents invest- 
ments of about one hundred and ten million dollars. 

We do not know the whole number of real estate and of 
industrial common-law trusts, as well as partnerships, that 
make use of transferable shares, and are now operating in 
Massachusetts and elsewhere. But Express Trusts under 
testamentary and other written instruments affecting inter- 
ests large and small, as well as partnerships, number many 
thousands. 

Some States openly depend upon the liberality of their 
corporate charters to pay their expenses and to cancel 
their debts. Such a course is condemnatory. Sound finance 
repudiates it. 



♦Real Estate Trust Stocks, 30 Kilby Street, Boston. 



12 

Governor Fernald of Maine, in his address to the Legis- 
lature of that State in 1909, while suggesting reform in its 
corporate laws, stigmatized his State thus: — 

"While it is true that the State is receiving large revenue from this source, 
it is also true that, in a considerable measure, it is the price of prostitution. I 
hope you will take steps to remodel them, along evident lines of reform, 
thus restoring to Maine her self-respect." 

Severer strictures than this can be produced from recog- 
nized authorities in this country, as to the dishonor of cor- 
porate legislation, and as to the iniquities of impersonal 
and non-moral corporate-body acts that would expose indi- 
vidual trustees under Express Trusts to personal liability. 
While relatively the good wrought by corporations has been 
very great, yet absolutely the volume of mischief they are 
responsible for, and continue to invite, has been and is 
enormous. 

Nowadays the right to organize a corporation is almost 
as free as the right to execute a deed of real estate; it has 
been carried to the utmost irresponsibility; and one may 
order and may receive, through the medium of charter 
purveyors, a number of corporate charters representing 
millions of capital, from any chosen State, almost with 
the celerity that one may order and receive as many boxes 
of cigars. Ordinary conveyancing, or constructive legal 
drafting, are utterly outmatched in such a performance. 

The proper initial deliberation and after responsibility 
and attention that are respectively a condition precedent 
to the formation and conditions subsequent to the accep- 
tance and performance of a meritorious Express Trust, 
proffer a wholesome corrective to the rash multiplication 
of the many anemic, moribund corporations that Massa- 
chusetts im providently creates, feels bound to nurse for a 
while, and is then compelled to bury by the thousands. 
Our next State Commission might well be one on Corpo- 
ration Eugenics. 



13 

Long before it was given, the decision of the Supreme 
Court of the United States last winter in Eliot v. Freeman, 
220 U. S. Rep., p. 178, holding that Express Trusts in 
vogue in Massachusetts and elsewhere are as free as part- 
nerships from the application of the Federal tax on doing 
business under a corporate charter, had been anticipated 
and acted upon accordingly in Massachusetts. That deci- 
sion has a wider significance than may be realized in the 
transcontinental scope of its salutary application. 

A few strong, permanent Express Trusts are worth more 
to this State and to the United States than the entire 4,000 
chartered Massachusetts corporations cast by the whole- 
sale into oblivion in the last five years by their own pro- 
genitor. 



The Massachusetts Legislature passed a resolve (Resolves 
of 1911, Chap. 55) to provide that the Tax Commissioner 
shall make an "investigation of Voluntary Associations 
organized or doing business in this Commonwealth under a 
written instrument or declaration of trust, the beneficial 
interest under which is divided into transferable certificates 
of participation or shares, with a view to determining the 
present legal status of such Voluntary Associations, and 
whether or not their prohibition or further control and regu- 
lation by the Commonwealth is advisable and in the public 
interests." The Tax Commissioner was to report on this 
on or before January 13, 1912.* 

If such an inquiry is aimed at one or two exceptional 
organizations affecting certain public service utilities, the 
public should be frankly informed thereof. But if its object 
is to put every personal Express Trust, and every partner- 
ship, that makes use of transferable shares, on a level with 
impersonal corporations, and to prohibit, or even to sub- 



* His report is dated January 17, 1912, and found in House Document No. 1646. 



14 

ject every such Express Trust, and every such partnership, 
to an inquisitorial State control, though they are not created 
by the State, and are not all clothed with a public interest, 
then its purpose assumes a scope that requires extreme 
caution on the part of the Legislature. 

Put in syllogistic form the prohibition aim of this 
inquiry involves the following fallacy: — 

Some "voluntary associations" have been holding com- 
panies. 
Some holding companies are said to have done harm. 

Therefore public policy demands that hereafter all 
"voluntary associations" shall be prohibited. 

The irrationality of the above will be more apparent 
if the syllogism is paraphrased thus : — - 

Some lawyers have been Presidents of the United States. 

Some Presidents are said to have done harm. 

Therefore public policy demands that hereafter all lawyers 
shall be prohibited. 

This inquiry is directed to so-called "Voluntary Asso- 
ciations." Can anyone satisfactorily define, or explain the 
origin of, or justify the retention of that indefinite expres- 
sion, "Voluntary Association"? Is its antithesis, an "In- 
voluntary Association," ever used, either colloquially or 
technically? The difference between creation by sovereign 
power and creation by private contract is not a sufficient 
basis for the term. The creation in both cases rests upon 
volition. The sovereign does not force citizens to create; 
organization is optional under the general corporation 
laws. The term, however old, has no fixed application. 
It is not analogous to a voluntary settlement or convey- 
ance which depends upon a meritorious or natural rather 
than a valuable consideration, upon blood or affection or 



15 

liberality than upon a compensatory or material advantage. 
The definition of a "Voluntary Association" as given 
in the Century Dictionary is : — 

"A society which is unincorporated, but is not a partnership, in that the 
members are not agents for one another." 

The word "Voluntary" adds nothing definite to the 
word "Association." The word "Association" is understood 
to mean a body of persons united without a charter. "Asso- 
ciations" are sometimes partnerships, and oftentimes not 
partnerships. "The true test of partnership is the inten- 
tion of the parties." (Parsons on Part. § 54.) Associa- 
tions to produce something and divide the product are not 
partnerships. {Id. § 61) : As to work a gold mine and 
divide the gold; to make and divide bricks; to fish and 
divide the fish caught; to manufacture and divide lumber. 
{Id. § 61 note, and §§ 445, 446.) Clubs and associations 
for social or charitable purposes are not partnerships. 
{Id. § 60.) 

Colloquially a "Voluntary Association" may be any group 
of persons, whether incorporated or not, from the United 
States Steel Company to a boys' baseball club, or a 
women's sewing circle, united of their own volition; and 
one and all will have a right to issue "transferable certifi- 
cates of participation or shares," without thereby affecting 
their legal status. 

The "Ladies' Soldiers' and Sailors' Monument 
Association" (161 N. Y. 353), or a farmers' association 
to construct and operate a telephone line (122 N. Y. S. 
610), or the "Washington Tent No. 1, Independent Order 
of Rechabites," associated for temperance, sympathy, and 
decent funeral obsequies (81 N. Y. 507), none of which 
were held to be partnerships, might any or all have been 
organized to use transferable shares, as well as the New 
England Gas and Coke Co. and the New England Invest- 
ment and Security Co. (198 Mass. 413, 425, 430), the 



16 

latter two representing many millions of dollars of capital, 
and all of the above may be, as they are, referred to as 
"Voluntary Associations."* 

We have corporations, joint-stock companies (common 
law and statutory!), partnerships, "trusts" (meaning com- 
binations of corporations, a modern perversion or restric- 
tion of the term trust) ; and now that inapposite, sweep- 
ing, indefinite designation "Voluntary Association" has 
become the subject of a legislative inquiry in Massachu- 
setts, which if it results only in helping to drive that ex- 
pression into disuse, will be beneficial. 

To attempt through legislation to synonymize or to 
put on a parity "Voluntary Associations," Partnerships, 
and Express Trusts created by private contract, and 
maintain that all three are like corporations created by 
the State, and to be regulated like corporations, merely 
because the common-law right of issuing shares is exercised 
by any one or all of them, is to invite contention. And to 
maintain that because some questionable "Voluntary Asso- 
ciations" have overstepped the mark, that, therefore, all 
Express Trusts, and Partnerships, and "good" "Voluntary 
Associations," shall, without distinguishing between pub- 
lic utilities and private enterprises, be "prohibited" or 
"controlled and regulated" by the State, is fallacious and 
prejudicial. 

The confusion and the constitutional conflict such a 
course might incite recalls the swift disposition the writer 
made with the State authorities thirty years ago, in 1881, 

*The definition given of "Voluntary Association" by the Tax Commissioner in 

his Report — House Document No. 1646, p. 2 — is as follows: — 

**The term voluntary association as generally used signifies an association of persons 
with a combined capital, represented by transferable shares, for the purpose of carrying 
on a common project for gain." 

But this attempt to narrow the term by so restricting its scope is arbitrary. It 
seeks to accentuate the features of transferable shares and of gain. But there are 
innumerable so-called "Voluntary Associations" without transferable shares, and 
very many with such shares carried on without trading with third persons for gain. 
tSee the leading case of Spotswood v. Morris, 12 Idaho, 360; 6 L. R. A. (N. S.) 
665 (1906). 



17 

of the Act of 1878, Chap. 275, to tax "companies, co- 
partnerships and other associations, in which the beneficial 
interest is held in shares which are assignable," etc., which 
Act, not long after, received its judicial quietus as un- 
constitutional by the decision in Gleason v. McKay, 134 
Mass., 419 (1883), reaffirmed and given a new application 
in O'Keeffe v. Somerville, 190 Mass., 110 (1906), and dis- 
cussed in the Opinion of the Justices in 196 Mass., 603 
(1908). 

The supposition that transferable shares are a peculiar 
prerogative or special privilege or attribute of corporations, 
and that whoever uses them is to be disciplined as copying 
an essential of a corporate State charter, or as availing 
of an important characteristic of corporations, is a mis- 
take. Transferable shares are not an essential, not even 
an attribute, not an inseparable or distinguishing mark of 
any corporation, but a mere incident or accessary of some 
corporations. 

The corporations that represent the largest aggregate of 
capital, and whose total business now exceeds that 
of the Nation itself, issue no shares; these are municipal 
corporations. So, too, transferability of shares is not 
essential to chartered colleges, academies, hospitals, and 
other corporate institutions, founded by public endow- 
ment or private beneficence. Nor are such shares neces- 
sary in many scientific and literary societies for mutual 
benefit or charity, in the funds of which the members 
have a beneficial interest. On the other hand such a right 
of transfer may be incorporated into partnership articles 
or into testamentary or other express trusts, and become 
a fundamental condition of them, without altering their 
legal character, or trespassing upon any corporate attribute. 

Legislatures and even Courts have occasionally fostered 
the above misconception; and Courts have had to correct 
themselves thereon. Mistaken ideas as to transferable 



18 

shares, as well as to other mere incidents of corporations, 
were analyzed and exposed over seventy years ago in 
New York in the leading case of Warner v. Beers, 23 Wendell 
Reports, pp. 103, 116, 130, 145 to 151, 174 to 176 (1840). 
Transferability of shares is recognized in Massachusetts 
as a natural right at common law. Gleason v. McKay, 
134 Mass., 419, 425 (1883). Opinion of the Justices, 196 
Mass. 603, 627 (1908). 

It is to be hoped that here in Massachusetts no revival 
of the above-mentioned mistake will mislead either its 
Executive, Legislative, or Judicial Departments to believe 
that such an error can be justified either upon economic 
or upon legal grounds. Our free common-law rights in that 
respect rest on too broad and sound a footing to be cur- 
tailed by an assumption so narrow and mistaken. The 
acquisition of a formal charter of incorporation only 
recognizes, but does not bestow, these rights. (See "The 
Personality of the Corporation and the State," in 21 Law 
Quarterly Review, p. 365 ; at p. 370, Oct., 1905.) As for 
listing shares on Stock Exchanges, those Exchanges have 
their own rigid rules of acceptance or rejection which form 
a public safeguard. 

The returns to the State required of corporations are 
not because a corporation issues transferable shares, but 
because the State is to keep information at hand of its 
own corporate creations, or, as Mr. Hall expresses it: — 

"The present law, passed in 1903, adopts the modern yiew that the State 
owes no duty to investors to look after the solvency of corporations, and 
that its sole obligation is to see that creditors and stockholders shall be at 
all times informed as to the organization and management of the corpora- 
tions to which it gives franchises." (Mass. Business Corp. Hall, p. 3, 2d Ed.) 

The present Legislative inquiry under Resolve 55, Acts 
of 1911, at the hands of the Tax Commissioner of the 
State, appears to be based on the mistaken ideas (1) 
that there is a corporate usurpation in all so-called "Volun- 
tary Associations" whose beneficial interests are "divided 



19 

into transferable certificates of participation or shares"; 
and (2) that because the State feels bound to furnish in- 
formation as to its impersonal — generally transitory — 
corporations to which it gives franchises, and to regulate 
those that are clothed with a public interest, therefore it 
must furnish similar information as to private persons to 
whom it gives no franchises and which they do not need, 
and must regulate private interests even when not clothed 
with a public character. 

If such regulative or inquisitorial laws are to be valid 
they should be uniform {Gleason v. McKay, 134 Mass., 
419, 425-6), applying to all without discrimination, and 
should include also all partnerships, for such may issue 
transferable shares representing millions of dollars. But 
Constitutional provisions that prohibit unreasonable inter- 
ference with private rights cannot be ignored. 

The proper appellation for Declarations of Trust that 
recognize common-law rights in matters of administration, 
and that restore the personal equation which State cor- 
porations evade, is "Express Trusts," the laws in regard 
to which are well established. No such Declaration of 
Trust should employ that all-inclusive, unfit term "Volun- 
tary Association." 

Trustees under Express Trusts are not agents, but prin- 
cipals, having the full title and control ; and the beneficiaries 
thereunder are neither partners nor agents. This is 
elementary. If some authorities are wanted thereon the 
following are to the point : — 

Mayo V. Moritx, 151 Mass. 481, 484. 

Mason V. Pomeroy, 151 Mass. 164; 7 L. R. A. 771. 

Johnson v. Lewis, 6 Fed. Rep. 27, 28. 

Taylor \. Davis, 110 U. S. 330, 334-5; 28 L. Ed. 163, 165. 

Lackett V. Rumbaugh, 45 Fed. Rep. 23, 29. 

Smith V. Anderson, L. R. 15, Ch. D., 247, 275-6, 284-5. 

The above ruling cases are readily distinguished from the 
familiar class that ascribe a partnership character to cer- 



20 

tain "joint-stock companies," "associations," and admitted 
to be "co-partnerships," of which Taft v. Ward, 106 Mass. 
518, and Phillips v.Blatchford, 137 Mass., p. 510, are types. 



The late Mr. J. Edward Simmons, President of the 
New York Chamber of Commerce, and for twenty-two 
years President of the Fourth National Bank in New 
York, in his address on Oct. 5, 1905, before the Maryland 
Bankers' Association, on "Honesty is the Best Policy," 
forcibly emphasized the basic principle involved herein. 
According to the New York Daily Tribune of Oct. 7, 1905, he 

"laid his finger on the real trouble when he declared that the most demoral- 
izing force in business today is the divestiture of personal honor and personal 
responsibility allowed by modern methods. The extension of the principle 
of incorporation has enabled leaders in business to set up two standards 
of morality, to maintain a Jekyll and Hyde duality, and to do as members 
of an impersonal and non-moral corporate body acts which they would 
shrink from as individuals." . . . "What is wanted, if we are to preserve 
rigid standards of honesty in business dealings, is adherence to the old 
notion of personal responsibility and personal integrity." 

"Men (said Mr. Simmons), who pose as the salt of the earth and who 
condemn, without reserve, those who steal $50, or forge a check for $100, 
or accept a bribe, will themselves make millions by lying, by fraud and by 
bribery. In private life they are stainless, but in the interests of corpora- 
tions, of the 'trusts,' of the gas company, of the railroad company, of the 
insurance company,- they will have recourse to every villainy damned in 
the decalogue." 

The Hon. Woodrow Wilson, in his address at Chatta- 
nooga, echoed the distinguished New York banker, Mr. 
Simmons; and it behooves Massachusetts, now advancing 
to restore that personality in administration which 
is the basis of liberty and of sound finance, not to embarrass 
that movement — which finds an efficient bulwark in 
Express Trusts — but to consider legislation that will im- 
plant more vitality at the inception of its impersonal 
corporate creations, and thus protect these artificial 
entities from premature oblivion. 



Express Trusts. Corporations. 
"Voluntary Associations." 



Second Paper, December 6, 1911. 

The public hearings given under Resolve, Ch. 55, Acts of 
1911, have emphasized some common errors: — 

FIRST: That Corporations are supposed to bestow numerous privi- 
leges. Whereas for the most part they merely recognize and adopt certain 
natural common-law rights that are not corporate prerogatives or privileges. 

SECOND: That Corporations present the highest model for organized 
capital. Whereas of the three standards of administration offered by (1) 
Cori>orations, (2) Partnerships, and (3) Express Trusts, that of Corporations 
is the lowest, while that of Express Trusts is the highest. 

THIRD: That Express Trusts are Partnerships. Whereas the law of 
Partnerships is a branch of the law of Principal and Agent, while Trustees 
under an Express Trust are the absolute Principals, but accounting to the 
beneficiaries, who have no powers either as Principals or Agents in actual 
administration. This distinction is clear and indisputable. 

FOURTH: That prohibitive, or repressive, or regulative legislation as to 
common-law modes of administration can be partial or unequal. Whereas 
inequality in that respect creates a Constitutional conflict. 



22 



FIRST. 

That Corporations are supposed to bestow numerous privileges. Whereas 
for the most part they merely recognize and adopt certain natural common- 
law rights that are not corporate prerogatives or privileges. 

Corporations, as a rule, bestow nothing save the artificial 
entity that merges natural persons into an artificial being, 
with the right to sue and to be sued in a corporate name; 
and as the State creates these fictitious beings, it feels 
bound to regulate them in some degree. 

Whatever else most corporations possess beyond their 
artificial entity and right of suit in their respective names, 
are mere "consequences or incidents of incorporation rather 
than primary constituents" (Wald's Pollock on Con., 
p. 126), such as issuing transferable shares, or limiting lia- 
bility, or using a seal, or making by-laws, or purchasing 
lands and chattels, these being merely a recognition and 
adoption of natural common-law rights that any person 
or persons sui juris may exercise without a charter. (See 
Warner v. Beers, 23 Wendell, pp. 103, 116, 130, 145 to 151, 
174 to 176. Wald's Pollock on Con., p. 296.) 

"There are several very useful and beneficial accessary powers or attri- 
butes, very often accompanying corporate privileges, especially in 
moneyed corporations, which, in the existing state of our law, as modified 
by statutes, are more prominent in the public eye, and perhaps sometimes 
in the view of our courts and legislatures, than those which are essential 
to the being of a corporation. Such added powers, however valuable, are 
merely accessary. They do not in themselves alone confirm a corporate 
character, and may be enjoyed by unincorporated individuals. Such a power is 
the transferability of shares. . . . Such, too, is the limited responsibility. . . . 
So, too, the convenience of holding real estate for the common purposes, exempt from 
the legal inconvenience of joint tenancy or tenancy in common. Again: There is the 
continuance of the joint property for the benefit and preservation of the common fund, 
indissoluble by the death or legal disability of any partner. Every one of these 
attributes or powers, though commonly falling within our notions of a 
moneyed corporation, <^ guite unessential to the legality of a corporation, may be 
found where there is no pretense of a body corporate; nor will they make one if all 
were combined, without the presence of the essential quality of legal individuality," 
etc., per Senator Verplanck, in Warner v. Beers, 23 Wend. 103, 145-6, et. seg. 



23 

The court in that case (pp. 149-155) refers to several 
trusts, and unincorporated associations, having the right 
to employ such accessaries, one of the more prominent 
being that of the Merchants' Bank, in the city of New 
York, with limited liability, as well as transferable shares, 
the articles of association for which were drawn by Alex- 
ander Hamilton. (Hamilton's Works, Congressional Ed., 
VII. 838.) 

"The most peculiar and the strictly essential characteristic of a corpo- 
rate body, which makes it to be such, and not some other thing in legal con- 
templation, is the merging of the individuals composing the aggregate 
body into one distinct, artificial individual existence. Now this is not found in 
the associations under the act." {Id. 23 Wend. p. 155.) 

"By our common law as it would exist now, independently of statu- 
tory restrictions, associations might be formed and trusts created, 
having every one of the above enumerated characteristics, which have been insisted 
on as essential to a corporation, except that personality forming its strict and 
necessary essential legal definition." {Id. 23 Wend. pp. 152-3. See also 174-6.) 

In the opinion of the Justices of the Supreme Judicial 
Court of Massachusetts given to the State Legislature, 
in 1908, on the taxation of transfers of stock, is the fol- 
lowing : — 

"None of these statutes implies that an excise tax may be laid upon a 
company, association, or partnership engaged in a simple business, like 
husbandry, merely because the members agree among themselves that 
their ownership shall be represented by transferable certificates of shares. 
Such an arrangement between two or more associates is a simple contract 
which they have a right to mate, and which gives them no franchise or privilege from 
the government. Such an arrangement does not distinguish them in any 
way that the State can recognize and make the foundation of an excise 
tax. This was expressly decided in G/easo» v. McATaji, 134 Mass. 419." Opin- 
ion of the Justices in 196 Mass. 603, 627. 

The above applies to the great generality of corporations. 
The right of eminent domain given to some public service 
companies and to municipal corporations, and certain 
rights as to transportation, banking, insurance, etc., are 
special privileges for which multitudes of corporations, 
partnerships, and express trusts have no need, and give as 
little cause, therefore, either for prohibition or for special 
legislative control. 



24 



SECOND. 

That Corporations present the highest model for organized capital. 
Whereas of the three standards of administration offered by (1) Corpora- 
tions, (2) Partnerships, and (3) Express Trusts, that of Corporations is the 
lowest, while that of Express Trusts is the highest. 

The frauds for which abuse of State legislation creating 
artificial beings, called corporations, is responsible surpass 
all means of ascertaining. They have become a national 
scandal. It is the restoration of personal responsibility 
that statesmen, economists, and the wisest legislators are 
now demanding. 

One of the oldest, and unquestionably the highest and 
most efficient administrative method known is that through 
Trustees. No higher standards of administrative conduct 
are evoked by Courts than those which trusts require. 
To attempt now to prohibit Express Trusts, or to bring 
them to the level of corporations or impair their established 
common-law freedom and utility by unnecessary visitorial 
exactions, is such a blunder, that its manifestation must 
be attributed to an oversight. 

Not only are the principals of law and equity well estab- 
lished in their application to Express Trusts, but they 
have been successfully adopted for generations quite inde- 
pendently of modern corporations, and in Massachusetts 
they are applied to property valued at hundreds of millions 
of dollars, with increasing approval among as able and 
conservative business and professional men as are to be 
found in New England. 

If there have been efforts by any State Department to 
discourage the application of these sound principles, and 
the maintenance of that personality in affairs which corpora- 
tions are designedly organized to suppress, they are to be 
regretted. 



25 

The doctrine of reimbursement to trustees, and that of 
a Hmited UabiUty between trustees and contracting parties, 
are as much in harmony with pubHc poHcy, and are as 
fundamental and well established as any doctrines under 
which fiduciaries perform their duties, and in point of senior- 
ity outrank later day limited liability partnership statutes 
and limited liability corporation statutes, which public 
policy accepts, such statutes being a recognition of the 
common law. It may be safe to affirm that for a single 
instance of disappointment in the application of these 
doctrines there could be found thousands of instances 
where the wisdom of their recognition and employment is 
manifest. 

To attempt now by general repressive legislation to inter- 
fere with what has been acquiesced in so long, is so well 
understood, is so useful, and so accordant with public 
policy, would be an economic error. 

Our laws in regard to testamentary trusts under wills, 
and to conveyancing, are in daily force for the welfare of 
individuals and of the State; but who would subvert their 
confirmed principles because an occasional defective will 
or deed appears? Such casual slips can be rectified by 
themselves. The great current of legitimate procedure 
in the execution of Express Trusts should not be embar- 
rassed because of some suspected transgression or mis- 
apprehended legal right. 



26 



THIRD. 

That Express Trusts are Partnerships. Whereas the law of Partnerships 
is a branch of the law of Principal and Agent, while Trustees under an Ex- 
press Trust are the absolute Principals, but accounting to the benefici- 
aries, who have no powers either as Principals or Agents in actual 
administration. This distinction is clear and indisputable. 

Joint-stock companies, as known in England and in 
some of the United States,* are unknown to the laws of 
Massachusetts. 

Richer v. American Loan & Trust Co., 140 Mass. 346, 347-8. 
Eliot V. Freeman, 220 U. S. 178, 187. 

Express Trusts, whether created under wills, deeds of 
settlement, assignments for the benefit of creditors, re- 
ceiverships, or by special declarations of trust, to manage 
property or carry on business, are neither corporations 
nor joint-stock companies nor partnerships, but they em- 
ploy a distinct and the highest known method of adminis- 
tration. 

"A lthough every trust may be said to include a contract, it includes 
so much more, and the purposes for which the machinery of trusts is 
employed are of so different a kind, that trusts are distinct in a marked way, 
not merely from every other species of contract, but from all other con- 
tracts as a genus." Wald's Pollock on Contracts, p. 231. 

Debts incurred under Express Trusts are not the 
debts of the beneficiaries under the trust, but are the 
personal debts of the Trustees, who are not agents, but are 
the absolute owners and principals. The Trustees have to 
account, of course, to the beneficiaries; but the benefi- 
ciaries have no partnership powers; and a strict Express 
Trust cannot be held as to its beneficiaries to be a partner- 
ship, with partnership powers and liabilities, without creat- 
ing confusion and a mischievous subversion of established 
principles. 



*New York, New Jersey, Pennsylvania, Virginia, Oliio, and Michigan. 



27 

"The issue or transfer of a share in a joint-slock company makes the new 
shareholder a partner, and a party therefore to all contracts made by the 
company. In the case of a trust, the certificate holder is not a partner 
or a party to any contract of the trustees." Parsons on Partnership, §449 
(4th Ed.) 

"To my mind the distinction between a director and a trustee is an 
ssential distinction founded on the very nature of things. A trustee is a man who 
'is the owner of the property, and deals with it as principal, as owner, and 
as master, subject only to an equitable obligation to account to some 
persons to Whom he stands in the relation of trustee, and who are his 
cestui qui trust. . . . The office of director is that of a paid servant of the 
company. A director never enters into a contract for himself, but he 
enters into contracts for his principal, that is, for the company of whom 
he is a director and for whom he is acting. He cannot sue on such con- 
tracts nor be sued on them unless he exceeds his authority. That seems 
to me to be the broad distinction between trustees and directors." Per James, L.J., in 
Smith V. Anderson, L. R. 15, Ch. D. 247, 275-6. 

"A trustee is not an agent. An agent represents and acts for his 
principal, who may be either a natural or artificial person. A trustee may 
be defined generally as a person in whom some estate, interest, or power 
in or afiecting property is vested for the benefit of another. When an 
agent contracts in the name of his principal, the principal contracts and is 
bound, but the agent is not. When u trustee contracts as such unless he is 
bound no one is bound; for he has no principal. The trust estate cannot prom- 
ise; the contract is, therefore, the personal undertaking of the trustee. . . . 
If a trustee, contracting for the benefit of a trust, wants to protect himself from individual 
liability on the contract, he must stipulate that he is not to be personally responsible, but 
that the other party is to look solely to the trust estate." Per Mr. Justice Woods in 
Taylor v. Davis, 110 U. S. 330, 334, 335; 28 L. Ed. 163, 165. Lackett v. Rum- 
baugh, 45 Fed. Rep. 23, 29. 

"There is no analogy between an instrument which establishes an agency 
and one which creates a trust. Where an agency exists, the principal may 
at any moment interfere; and at all times he is, in legal contemplation, 
in control of the business. Not so when a party has parted with the title 
to his property, and has created a trust which vests in such trustee the 
right to manage the business as the proprietor thereof, he being accountable 
to the beneficiary, not as his principal, but as a mere cestui que trust, under 
the terms of the trust instrument." Per Corliss, Ch.J., in Welles-Stone 
Mercantile Co. v. Grover, 7 N. D. 460, 474; 41 L. R. A. 252, 257. 

The literature upon this subject reveals that inattention, 
in this important matter, to the distinction in corporate 
powers between bestowing certain special r ghts and merely 
recognizing and employing certain natural common-law rights, 
has at times tended to a misapprehension, intensified by the 



28 

added mistake of regarding the relation between Trustee 
and beneficiary as identical with that between principal and 
agent. 

But keeping the proper distinctions in view, the class of 
Massachusetts cases that have recognized as partnerships 
certain joint-stock companies, certain admitted to be asso- 
ciations and admitted to be copartnerships (such as Phillips 
V. Blatchford, 137 Mass. 510), are readily distinguished from 
strict Express Trusts. 

That Express Trusts are not necessarily partnerships was 
unanimously decided by our Supreme Judicial Court, 
through Mr. Justice Charles Allen, in Mayo v. Moritz, 
151 Mass. 481, 484, when he wrote that: — 

"The deed of trust does not have the effect to make the scrip-holders partners. 
It does not contemplate the carrying on of a partnership business 
upon the joint account of the grantor and the scrip-holders, and in this 
respect the case is unlike Gleason v. McKay, 134 Mass. 419, and Phillips v. 
Blatchford, 137 Mass. 510. The scrip-holders are cestui gui trust, and are 
entitled to their share of the avails of the property when the same is 
sold." 

See also: — ■ 

Mason v. Pomeroy, 151 Mass. 164. (Mills in [Berkshire County, 

Massachusetts, managed by trustees.) 
Everett v. Drew, 129 Mass. 150, 151. 
Johnson v. Lewis, 6 Fed. Rep. 27, 28. 
Smith V. Anderson, L. R. 15 Ch. D. 247, 275-6, 284-5. 
Cox V.Hickman, 9 C. B. N. S. 47, 98-9; 8 H. of L. Cases, 268, 

312. H 

Wells-Stone Mercantile Co. v. Grover, 7 N. D. 460; 41 L. R. A. 252. 

In the case of the "Municipal Trust" of London, with a 
capital of ^350,000, for the purpose of purchasing bonds 
of municipalities within the United States, and which 
came before the U. S. Circuit Court, it was held that: — 

/ "The trust was not a corporation or joint-stock company or partnership, but u trust 
formed by deed of settlement for the purpose of securing investments. 
The Trustees were the legal owners of the trust property, and the 
business of the trust was managed by them and "the Committee" cre- 
ated by the deed for the benefit of the certificate holders, who were 



29 

strangers to each other, and who entered into no contract between 
themselves, nor with any trustee on behalf of each other, and were not, there- 
fore, partners." Per Caldwell, D.J., in Johnson v. Lewis et al., 6 Fed. Rep. 
27, 28. 



So when assignments for the benefit of creditors are 
made, or a receiver is appointed, or the National Bank- 
rupt Act is applied, putting the debtor's property into the 
exclusive control of assignees or trustees, who may con- 
duct the business (Bankr. Act, 1898, 2 (5); Mass. Rev. 
Laws, Ch. 163, Sec. 64; Acts of 1910, Ch. 141), the bene- 
ficiaries or creditors do not become partners. Nor does a 
trustee's exercise of the common-law right to issue certi- 
ficates of beneficial interest alter the legal status of the 
parties, or borrow any corporate privilege. 

A leading case on this is found in Welles-Stone Mercantile 
Co. V. Grover, 7 North Dakota, 460; 41 L. R. A. 252, wherein 
two Massachusetts cases {Gleasonv. McKay, 134 Mass. 419, 
and Phillips v. Blatchford, 137 Mass. 510) were cited by the 
losing party to maintain that beneficiaries under a trust 
were partners, but the Court through Chief Justice Corliss, 
in a strong, comprehensive opinion, determined that the 
relation created by the instrument of assignment which 
authorized the operation and management of the business, 
was that of trustee and beneficiary and not that of principal 
and agent, and hence that the beneficiaries were not partners. 
The Chief Justice relied, among many others, upon the 
Massachusetts cases of Mayo v. Moritz, 151 Mass. 481, 
and Mason v. Pomeroy, 151 Mass. 164. Strong reliance 
was also placed by the Court on the leading English case 
of Cox V. Hickman, 9 C. B. N. S. 47; 8 H. of L. Cases, 268; 
where after various appeals the law lords (Lord Chancellor 
Campbell and Lords Brougham, Cranworth, Wensleydale, 
and Chelmsford) were unanimous that no partnership arose 
in the case of property placed in the hands of Trustees to 
manage for beneficiaries. . 



30 

While the law as to Trustees and beneficiaries is not a 
branch of the law of principal and agent, yet just the reverse 
is the case as to partnerships, for 

"The law as to Partnerships is undoubtedly a branch of the law of 
principal and agent; and it would tend to simplify and make more easy 
of solution the questions which arise on this subject, if this true prin- 
ciple were more constantly kept in view. Mr. Justice Story lays It down 
in the 1st section of his work on Partnership. He says, 'every partner 
is an agent of the partnership; and his rights, powers, duties, and 
obligations are in many respects governed by the same rules and principles 
as those of an agent. A partner, indeed, virtually embraces the character 
both of principal and agent,' per Lord Wensleydale, in 

Coxv. Hickman, 9 C. B. N. S. 47, 98-9; 8 H. of L. Cases, 268, 312. 

This case in now generally adopted in the United States. 
George on Partnership, 37, 43. 
"True partnership results from the intention of the parties." 

Gilmore on Partn., p. 10 (1911). 
"The rule which made the sharing of profits a test of partnerships rather 
than a test of intention to form a partnership was overthrown in England, 
and was never generally accepted in the United States." 
Gilmore on Partn., p. 19. 
"A true partnership is always formed by virtue of a contract between all 
the parties, and never by operation of law." 

Shumaker's Law of Partn., p. 4. 
"Under the modern doctrine of partnership, persons are not liable to 
third persons as partners, although they share profits, unless 

(a) They are really partners inter se or 

(b) Have held themselves out as partners under such circumstances as 
to estop them from denying it." 

Shumaker's Law of Partn., p. 16. 
"The intention of the parties, as gathered from a construction of the con- 
tract they have made, is the real test of the existence of a partnership." 
Shumaker's Law of Partn., p. 21. 

See also the elaborate foot note to Miller v. Simpson, 
107 Va. 476, in 18 L. R. A. (N. S.) 963 to 1106, and espe- 
cially article XIII therein, on "The passing of the old and 
advent of the new test of partnership," p. 1066 et seq.; 
also article XIV therein on "The agency test," p. 1072; and 
article XXVI, the "Conclusion," p. 1105. 

Partners, therefore, are both principals and agents, as man- 
ifested by the intention of the parties under their con- 
tract. Beneficiaries under strict Express Trusts cannot be 



31 

partners, because they can be neither principals nor agents, 
the Trustees being the absolute principals, but bound to 
account to the beneficiaries as cestui que trustent. 

Everett v. Drew, 129 Mass. 150, 151. 
Mayo V. Moritz, 151 Mass. 481, 484. 



That individuals, or executors and administrators, or 
assignees and receivers, or partners under articles of co- 
partnership or under statutes as to limited partnerships, 
and a fortiori trustees under a will or under a deed of 
settlement or under an express trust, may lawfully limit 
their liability, accords with established doctrines of restric- 
tion by agreement or of stipulations limiting liability. 

Taylor v. Davis. 110 U. S. 330, 334-5, 28 L. Ed. 163, 165. 
Am. & Eng. Eneyc. Laws 22, pp. 142, 173. 

Executors and administrators "are regarded in almost 
every respect, in courts of equity, as trustees'' (Woerner on 
Administration, pp. 10, 798, 1117); their title, however, 
in the estate of the deceased is in autre droit merely {id. 
p. 386; 207 Mass. 6, 10); but the title held by Trustees 
under an Express Trust is absolute in the Trustees. 

It is incorrect to say that because stockholders in cor- 
porations are accorded certain exemptions from liability, 
that therefore trustees, partners, and others who employ 
the common-law right of limiting liability, are imitating 
corporations, or arrogating some of their privileges, for 
it is the corporations that are allowed to imitate or to rec- 
ognize and employ just what individuals and trustees and 
partners have a natural common-law right to do, and 
have been doing for an indefinite period, without bor- 
rowing any later day corporate incident. 

In substantiation of the right of Trustees to limit their 
liability by contract under the common law, the following 
authorities are conclusive : — 



32 

/ 

"A trustee can be held personally for material ordered by him for the 
trust estate, and on contracts made by him in its behalf, unless there be 
a special agreement to look only to the trust." 

I. Perry on Trusts, § 437a and cases. 

"By using appropriate expressions the trustee can exempt himself alto- 
gether from personal liability or limit his liability to the extent of the trust." 
Trustees' Handbook, Loring, pp. 28, 77, 78, and cases. (3d Ed. 
1907.) 

"The legal estate is in the trustee, and the equitable estate is in the 
cestui gue trust; but as the trustee holds the estate, although only with the 
power and for the purpose of managing it, he is bound personally by the 
contracts he makes as trustee, although designating himself as such; and 
nothing will discharge him hut an express provision, showing clearly that both 
parties agreed to act upon the responsibility of the funds alone, or of some other responsi- 
bility, exclusive of that of the trustee." 

I. Parsons on Contracts, p. 122. (8th Ed.) 
II. Page on Contracts, § 990, and many cases. 

"The right of making a contract, whereby those who tender it stipulate 
not to be bound beyond the amount of some specific pledged fund, must 
be a natural right growing out of the very nature of contracts." Per Verplanck, Sena- 
tor, in Warner v. Beers, 23 Wendell, 103, 151. 

"In dealing with the business world, a trustee cannot escape personal lia- 
bility unless he lawfully restricts his liability in the contract itself." . . . Of course, 
the parties may agree that the trustee shall not be held personally on the contract, but that 
only the trust estate itself shall be chargeable with the debt. In such a case . . . the 
trustee is not bound, but the fund is." Per Corliss, Ch. J., in Wells-Stone Mercantile Co. 
V. Grover, 7 N. D. 460, 463, 464; 41 L. R. A. 252, 253, 254. 

Bank of Topeka v. Eaton, 100 Fed. Rep. 8 (C. C.-Mass.-1900.) 

Chief Justice Knowlton in his opinion in Hussey v. 
Arnold, 185 Mass. 202, 204, says: — 

"Whether the trustees in this case, in dealing with the petitioner, 

provided against personal liability in accordance with the direction in the agreement, as 
they might do (see Shoe & Leather Nat. Bk. v. Dix, 123 Mass. 148), does not 
appear." . . . "If the trustees contracted in the usual way without referring 
to anything which would limit the liability resulting from an ordinary contract, they are 
personally liable," etc. 

Later in this opinion the Chief Justice, however, inter- 
jects a dictum as to 

"considerations of public policy in an attempt of this kind to do business 
without a legal liability of anybody for debts incurred by the trustees." 

But the Chief Justice appears to disparage (1) his previous 
recognition of the common-law right to Hmit liability to 
the fund or property; (2) the declaratory incorporation 



33 

of that common-law principle in limited partnership and 
in corporation acts; and (3) the everyday successful 
administration entirely in accord with public policy, under 
this trustee system, and under common-law rights, of prop- 
erty valued at hundreds of millions of dollars. Also (4) the 
Chief Justice's reference to the trustees, "As agents and 
trustees" (p. 204), appears to overlook the doctrine that 
trustees are not agents, but principals; and (5) he appears 
to slight the equitable relief attainable against the estate held 
by the trustees, and the settled doctrine of equitable ex- 
ecution upon the trustees' right of exoneration, as deter- 
mined in the case of Mason v. Ppmeroy, 151 Mass. 164, 
167, recognized also in Mayo v. Moritz, 151 Mass. 481, 
484-5, in Odd Fellows Hall Association v. McAllister, 153 
Mass. 292, 297, and in Broadway Nat. Bk. v. Wood, 165 
Mass. 312, 316 See also: — 

Hewitt V. Phelps, 105 U. S. 393, 400; 26 L. Ed. 1072. 

Story's Eq. II. § 978 n. (c) and cases. 

Wells-Stone Mercantile Co. v. Graver, 7 N. D. 460; 41 L. R. A. 252, 

and cases cited. 
Brown v. Eastern Slate Co., 134 Mass. 590. 
Norton v. Phelps, 54 Miss. 467, S. C. Ames' Cases on Trusts, 420 

(2d Ed.), and cases cited. 
"Liability of Trust Estates for Contracts Made for Their 

Benefit." 15 Am. Law Rev. 449-462. 
"Undisclosed Principal." By James Barr Ames, in Yale Law Journal, 

May, 1909, pp. 450, 451. 
Bank of Topeka y. Eaton, 100 Fed. Rep. 8 (C.C.-Mass.-1900). 
Parsons on Partnership, § 447, and cases (4th Ed.). 
Underbill on Trusts & Trustees, §§ 347, 348 (6th Eng. Ed.). 



34 



FOURTH. 

That prohibitive or repressive or regulative legislation as to common- 
law modes of administration can be partial or unequal. Whereas inequality 
in that respect creates a Constitutional conflict. 

Prohibitive, repressive, or regulating laws should be uni- 
form; and if any attempt is made to select Trustees who 
issue transferable certificates under Express Trusts and to 
omit Trustees who do not issue such certificates, or to select 
partners who issue transferable shares and to omit part- 
ners who do not issue such shares, or to select Trustees and 
to omit partners, the Constitutional point of inequality 
is likely to arise, as in Gleason v. McKay, 134 Mass. 419, 
425-6, which case set aside as unconstitutional the Act 
of 1878, Chap. 275, to tax "companies, copartnerships, and 
other associations, in which the beneficial interest is held 
in shares, which are assignable," etc.; for as Chief Justice 
Field said, in Minot v. Winthrop, 162 Mass. 113, 122, 
and quoted with approval by Chief Justice Knowlton and 
others in the opinion of the Justices in 196 Mass. 603, 
628: — 



"As the tax considered in Gleason v. McKay was not upon a business or 
employment, and as there was no franchise or privilege conferred by the 
Legislature, the distinction between partnerships with transferable shares and those 
without rendered the tax unequal and unreasonable, because it was a discrimination 
founded upon an immaterial fact." 



"Every one has a right to demand that he be governed by general rules, 
and a special statute which, without his consent, singles his case out as 
one to be regulated by a diflerent law from that which is applied in all 
similar cases, would not be legitimate legislation, and would be such an 
arbitrary mandate as is not within the province of free governments." . . . 
"Equality of rights, privileges, and capacities unquestionably should be 
the aim of the law." . . . "The State, it is to be presumed, has no favors 
to bestow, and designs to inflict no arbitrary deprivation of rights." (Cooley's 
Const. Limitations, pp. 559, 562, 563, 7th Ed.) 



35 

The stampede to organize under corporation laws, and 
thus try in many cases to obtain something for nothing, 
by evading personal responsibility, has been perverted into 
a national disgrace, as the Hon. Woodrow Wilson so force- 
ably presented to the legal profession in his address at 
Chattanooga in 1910. 

It is the duty of that profession and of the Legislature, 
if any legislation is really necessary upon this score, rather 
to confirm the common-law natural right of all persons 
sui juris to manage affairs, whether as individuals, or as 
partners, or as assignees, or trustees under Express Trusts, 
as they now do, than to encourage the use of evasive cor- 
porate charters. In the great majority of cases adminis- 
tration through Express Trusts is superior to that of any 
other method. 

Mortality in Massachusetts for human beings has aver- 
aged during the past five years about sixteen (16) per cent 
for every 1,000 persons. Mortality for corporate beings 
with Massachusetts' imprimatur has averaged for the 
same period about sixty-four (64) per cent. 

Express Trusts are constitutionally far more healthy. 

Corporate impersonality in admnistration invites both 
fraud and disaster. Trust personality is the strongest 
safeguard against them. 



( ( 



EXPRESS TRUSTS UNDER THE COMMON LAW." 
By Alfred D. Chandler, Esq., 

SUPPLEMENT. 
June 15, 1912. * 



The Legislature of Massachusetts during its session 
of 1912 has acted upon the Report of the State Tax Com- 
missioner, made under Chapter 55, of the Resolves of 1911, 
requiring him to investigate and report upon "Voluntary 
Associations," with a view to their prohibition or further 
control and regulation, and two new laws have resulted, 
neither of which prohibit Express Trusts or "Voluntary- 
Associations." 

One law (Chap. 595, Acts of 1912) authorizes corpora- 
tions to be formed in Massachusetts to acquire, manage 
and sell real estate, for a term not to exceed fifty years. 
The other law (Chap. 113, of the Resolves of 1912) pro- 
vides for a Commission to investigate the Holdings of 
"Voluntary Associations" and Certain Corporations and 
the Consolidation of Companies controlled by them, such 
Investigation being specifically directed to certain public 
utility Companies. 

The Commission is to be composed of the Attorney 
General, the Board of Railroad Commissioners, the Board 
of Gas and Electric Light Commission, two members of 
the Senate, and four members of the House of Represen- 
tatives, and it is to report to the next General Court not 
later than January 5th, 1913. 

Otherwise Express Trusts whether for the administra- 
tion of real estate or for industrial or commercial uses are 
not affected. 



CONTINUED DISSOLUTION OF 
MASSACHUSETTS CORPORATIONS. 

On pages 10 and 11 of *' Express Trusts under the Common Law'* 
the excessive mortality in conservative Massachusetts of its State cor- 
porate charters is presented, showing that in five years prior to 1912 
Massachusetts corporations to the number of 4,154 were dissolved, or 
about 64 per cent, of the whole number created in that period. 

The Massachusetts Legislature of 1912 has continued this elimina- 
tion by dissolving 929 more of that State's corporate creations, a copy 
of the Act being here printed in full as impressive proof of the illusion ana 
instability of impersonal corporate bodies even in a conservative State. 

What the death rate of corporations is in other States is not known, 
but the Boston News Bureau for Dec. 4, 1911, affirmed that: — 

"In California about 4000 corporations will dissolve on Nov. 30, because of their 
failure to pay the required license tax; and in Missouri about 4000 more are liable to 
dissolution because of their failure to file the annual anti-trust statement required by the 
State law. 

The corporate form of ownership is much less prevalent there (West and South) ; 
and in consequence, dependence upon corporations is less general, and toleration of 
their methods is less in evidence." 



LAWS OF MASSACHUSETTS, CHAPTER 313, ACTS OF 1912, 



"AN ACT 
to Dissolve Certain Corporations. 
Be it enacted, etc., as follows: 
Section 1. Such of tlie following-named cor- 

£ orations as are not already legally dissolved are 
ereby dissolved, subject to the provisions of sec- 
tions fifty-two and fifty-three of chapter four 
hundred and thirty-seven of the acts of the year 
nineteen hundred and three: — 

A. 
A. 
A. 

A, 
A, 
A, 

A. 
A, 



E. Ellis Building Co. 

H. Rice Lumber Company 

J. Leg^-Bakei: Company, The 

L. Whittemore Company 

Lowenstein and Sons (Incorporated) 

M. Abels, Inc. 

M. Thomas Company 

S. Alley Company 
Abbott-Detroit-Boston Company 
Abram French Company 
Ackotist Player Piano Company 
Acme Wet Wash Company 
Adams Trust Company 
Adamson Publishing Company 
Adco, Inc., The 

Aeroplane Company of America 
Agawam Telephone Company 
Alberta Cereal Company 
Alden and Tarbox, Incorporated 
Alhambra Mining Company 
Allen-Guild Amusement Company Inc. 
AUen-RandaU Company 
Along The Coast Publishing Co. 
Alstead Mica Company 
Alton Chemical Company 
Amalgam Mining and Milling Company, The 
American Automobile Company 



American Biscuit Company 

American Builders Finish Co. 

American Canadian Publishing Company 

American Canvas Goods Company 

American Citizen Co. 

American Co-operative Association of New Eng- 
land, The 

American Fibre Machine Company 

American Fruit and Products Co. 

American Good-Will Co. 

American Handle Company 

American Heel Company 

American Industrial Corporation 

American Iron Company 

American Kaolin Putty Corporation 

American National Film Company 

American Rapid Transit Company 

American Shoe and Leather Fair Company 

American Trading Company Inc. 

Anchor Paper Box Company 

Anderson's, Inc. 

Andrew M. Cusack Company 

Angler Company, The 

Annex Cigar Store Co. 

Anti-Germ Drinking Fountain Company 

Apparel Retailer Company 

Arcade Drug Company of New Bedford, The 

Armstrong Lumber Company, The 

Ashbumham Mills 

Ashburnham Reservoir Company 

Ashland Portable Company 

Associated Retail Dealers' Conlpany 

Atlantic Coast Forest Preserve and Improvement 
Company 

Atlantic Confectionery Co. 

Atlantic Investing Company 

Atlets Concrete Construction Company 

Atlas Construction Company 



Atlas Manufacturing Company 

Atwood Mitchell Company, The 

Auerbach and Co., Inc. 

Austin Company, The 

Austin Engineering and Construction Company 

Auto Goods Company 

Auto Supply Credit Company 

Automatic Rapid-Unloading Company 

Automatic Supplies Company 

Automatic Time Table Company 

Avon Lumber Company 

Avon Woolen Mills Company 

Azorean Company 

B. G. Underwood Co., Inc. 

B. M. Lovell Company 

B. Spinoza & Company, Inc. 

Bache-Hamlin Motor Company 

Back Bay Theatre Company 

Bacon Bros., Inc. 

Badger Manufacturing Company, The 

Bagley Construction Co. 

Ball and Goodrich Company 

Banker and Tradesman Press, Inc., The 

Bankers' Investment Company 

Bankers' Loan Company 

Barber Machinery Company 

Barberville Spring Water Company 

Barlow Manufacturing Company 

Barnes Company, The 

Barrell Pneumatic Tire Protector Company 

Barton Georges Creek Coal Company 

Basile Automobile Company 

Bates & Tyndall Incorporated 

Bay State Cornice & Skylight Works 

Bay State Dental Laboratory Company 

Bay State Dredging Company 

Bay State Fishing Company (Organized June 5 

1905.) 
Bay State Hame Company 
Bay State Leather Company 
Bay State Supply Company 
Bay State Vineyard Company 
Bay State Whip Company 
Beacon Drug Company, The 
Beacon Foundry Co. 

Beacon Investment and Supply Company, The 
Bedford Manxofacturing Company, The 
Benjamin Hobart Company, The 
Benoit Transmitting Power Co., The 
Berkshire Creamery Co-operative Association 
Berkshire Hosiery Company 
Best Baking Company 
Bestosking Packing and Supply Company 
Black-on-White Reproduction Company 
Blackmer Express Company 
Blackstone Valley Lumber Company 
Blake Motor Company 
Blood-Reece Leather Company, The 
Bon Ton Cloak and Suit Manufacturing Co. 
Boston Amusement Company, Inc. 
Boston and Haverhill Despatch Company, Thp 
Boston & New York Hotel & Restaurant Co. 
Boston Bargain House, Inc. 
Boston Brokerage Company 
Boston Carpet Company 
Boston Coal Transfer Co. 
Boston Coin Machine Company 
Boston Cqld Storage Company 
Boston Collapsible Couch Company 
Boston Dental Mfg. Co. 
Boston Fish Terminal Inc. 
Boston Gas Engine Company 

Boston Licensed Automobile Dealers Association, 
Incorporated 

Boston Motor Truck Association, Incorporated 
Boston Net and Muslin Curtain Company 



Boston Notion House, Inc. 

Boston Parlor Frame Company , 

Boston School Company 

Boston Silk Petticoat Company 

Boston Specialty Co. 

Boston Telegraph Institute, Inc. 

Boston Toggle Company 

Boston Tool Company 

Boyce and Hatfield Hotel Company 

Boynton Auto Express Co. 

Bridge Company, The 

Bridge Street Drug Company 

Bridges Specialty Company' 

Brldgewater Electric Company, The 

Bristol County Furniture Company 

Broadway Investment Company 

Brockton Amusement Company 

Brockton Ideal Shoe Company 

Brockton Rubber Heel Company 

Brockton Trap-Rock, Company 

Bromograph Sales Company 

Brosnihan Wrench Company. The 

Brown Folding Umbrella Company 

Brown Stocking Company 

Burton Electric Cloth Treating Co. 

Bushway Ice Cream Company (Organized Nov. 30, 

1908) 
Butler Motor Truck Company of New England 
Buzzards Bay Oyster Company, The 
Byron B. Moulton, Inc. 
C. &. L. Manufacturing Company 
C. D. R. Skirt Manufacturing Company 
C. G. Flynn Leather Company 
C. H. Brown Engine Company, The 
C. H. Loveland Company 
C. W. Alger Company, Incorporated 
C. W. Wilcox & Son Company 
Cambridge Amusement Company 
Cambridge Department Store Company 
Cape Ann News Company 
Cape Cod Oyster Company, The 
Carey Shoe Company 
Caribbean Fruit Company 
CsltI Seaberg Company 
Carlton Hotel Company 
Carson-Reidy Company 
Castle Square Drug Company 
Castle Square Garage, Inc. 
(I^axton Printers, Limited, The 
Central Chemical Company 
Central Drug Company. 
Century Monumental Works 
Charles A. Masters Company 
Charles Anderson Company 
(iharles F. Going Company 
Charles H. DivoU Company, The 
Chas. S. Champney, Irjcorporated 
(iharles W. Smith Company • 
Chase & Baker Company 
Chelsea Amusement Company 
Chelsea Cordage Company 
Chelsea Gas Light Company 
Chelsea Spring Manufacturing Conapany 
Chester Quarry Company, The 
(ihoate Drug and Chemical Company, The 
Church Press, Inc., The 
Clapp Tea Company, The 
ClsLTk Bros. Company 
Clark Chemical Company 
Clinton Fruit Company 
CUnton Times Publishing Company 
Cobb Stove and Machine Company 
Cobum Auto Sales Company, The 
Cohasset Electric Company 
Collins Pharmacy, Inc. 
Collver Tours Company, The 



Colonial Garage, Inc. 

Colonial Leather Goods Company 

Colonial Printing and PublisMng Company 

Colonial Silver Stores Company 

Colrain Electric Light & Power Company, The 

Columbia Inter -State Express Company 

Columbia Machine and Wood Screw Company 

Combination Envelope Company 

Commercial Motor Vehicle Association of Boston 

Commercial Oxygen Company, The 

Commercial Pioneer Institution (Incorp.) 

Conmionwealth Construction and Supply Company 

Commonwealth Mining Company 

Complete Combustion Utilities (Corp.) 

Compressed Air House Cleaning Company 

Conant, Whiting and Company (Incorporated) 

Concord Publishing Company, The 

Concord School Company 

Confectioners' Machinery and Manufacturing 

Company 
Conlon Cab and Taxi-Cab Co. 
Connery Transportation Company 
Consolidated Rubber Tire Co. of Boston 
Consolidated Secxirities Company 
Consumers Co-operative Purchasing Company 
Consum.ers Electric Company 
Consumers Glue Company 
Converse Laundry Company 
Conway Chair Company, The ' 
Co-operative Merchants' Cash Stamp Company 
Copley Motor Car Company 
Copley Trust Company 
Corinthian Artificial Stone Company 
Couch & Seeley Co. 
Crawford Machine Company 
Crippen Player Company 
Criterion Amusement Company, The 
Criterion Company 
Criterion Knitting Company 
Crowell-Clark Company 
Crowley and Gold Company 
Crown Motor Vehicle Company 
Cumberland Development Company 
Cumings Theatre, Inc. 
Cummings, Manufacturing Company 
Cycloidal Engineering Company 
D. C. Clark Shoe Company 

D. F. O'Connell Company 

Daley and Wanzer AUerton Express Company 

Daley's Nantasket Express Company 

Dalzell Axle Company 

Davis & Company, Incorporated 

Davis Automobile Sales Company, The 

Dawson's Business College, Inc. 

Deehan Drug Company 

Deerfield River Corporation 

Denison Sales Company 

Derrin Ice Cream Company 

Devonshire Confectionery Company 

Dillon Stable Company 

Dr. Burleigh Corporation, The 

Dr. George W. Swett Company 

Dodge Lubricator Company 

Dodge Plating Works 

Domestic Utilities Company 

Dorchester Plastic Roofing Company 

Drayton's Auto Express Company 

Drew Munson Fruit Company 

Duckworth Chain and M anuf acturing Company 

Dunbar Boot Shop, Incorporated 

Dunbar Manufacturing Company 

Dunning Manufacturing Company. The 

Dunstable Granite Company 

Duplex Spring Protector Company, The 

Durable Rug Company 

E. & L. Comb Company 



E. B. Wadsworth Co. 

E. C. Campbell Co. 

E. C. Fisher Corporation 

E. D. Thayer Company 

E. E. Brewster Company 

E. F. Reece Company, The 

E. H. Smith Company 

E. Houston Company 

E. P. Worth Manufacturing Company 

E. P. Worth Shoe Co., The 

E. S. Hulbert & Co., (Incorporated) 

E. S. Hunter Plating Co. 

E. S. Lincoln Inc. 

Eagle Cotton Gin Company 

East Watertown Drug Company, Inc. 

Eastern Chemical and Supply Co. 

Eastern Concrete Construction Company 

Eastern Counter Company 

Eastern Electric Company 

Eastern Excelsior Company 

Eastern Hardware Company 

Eastern Sanitary Products Co. 

Eastern Stone Ware Company 

Eastern Trading Company 

Eastern Wharf and Storage Company 

Easthampton Co-operative Association 

Eaton Building Co. 

Economy Adjustable Reflector Company 

Economy Pure Food Co. 

Edwards and Finkelstein Company 

Eldridge Ice Cream Company 

Electric Diamond Grinder Company, The 

Electric Textile Machinery Company 

Electrical Exposition, Incorporated 

Elk Horn Fibre Company 

Elliott Specialty Company, The 

Empire Sand & Gravel Company 

Enterprise Comb Company 

Enterprise Company of Pittsfield 

Ernest C. Marshall Company 

Eucalyptus Hardwood Timber Company 

Eucathol Company, The 

F. A. Hermann Company 

F. D. C. Manufacturing Company, Inc. 

F. D. Davis Company, The 

F. E. Butterfield Manufacturing Company, The 

F. H. Allis Company 

F. H. Coyne Company, The 

Fairbanks and Boynton Company, The 

Fall River Brick and Concrete Company, The 

Fall River Hotel Company 

Farm Products Company of New England, The 

Farr Remedy Company 

Faulkner Pharmacy, Inc. 

Fay Welding and Manufacturing Company 

Federal Automobile & Manufacturing Company 

Federal Securities Company 

Federal Vending Company 

Federation Bulletin Publishing Company 

Feiner Charcoal and Coal Company 

Ferguson- Blakeley Company 

Femcroft Cabin Company 

Field & Company, (Incorporated) 

Fitchburg Trust Company 

Flax Pond Fishing Company in Dennis 

Fobes Hayward & Co., (Incorporated) 

Forbush Penmanship System 

Foster-Williams Shoe Co., The 

Francis Dike, Inc. 

Francis Jewelry Company 

Francis Spring Co., Inc. 

Franco-American Economic Association 

Frank J. McPeake Company 

Frank L. Rouse Co., Inc. 

Franklin Amusement Company 

Franklin Power Company 



Fred A. Day Corporation 

Freeman Clothing Company 

Friedman Confectionery Company, The 

Fuller & Lewis, Incorporated 

Furniture Alliance, Inc., Ihe 

G. L. Freeman Company 

Gain Robinson Limriber Company 

Gallagher and Munro Company 

Gardner Finnish Co-operative Company 

Gazetteer Publishing Company, The 

Geer's Chemical Company, The 

Gem Leather Cora,pany 

Gem Refreshment Co. 

General Trap and "Weir Company 

George and Barry Leather Company 

Geo. B. Doane & Son Company 

George E. Feast Co. 

George E. Martin Produce Company 

Geo. G. Snow Company 

George G. Veness Manufacturing Co., Incorporated 

George J. Dunham Company 

Gilmanton Lumber Company 

Gilmore & Weniger Company 

Globe Credit Company 

Gloucester Dairy Company 

Gloucester Manufacturing Company 

Goodnow-Edmonds Company 

Grafton Press, Incorporated, The 

Graham, Moore Company 

Greater Boston Cigar Company 

Greylock Co-operative Creamery Association 

Grit Shoe Company, The 

Grocers Co-operative Cranberry Company 

Grodberg-Hirsch Pants Manufacturing Company 

Grossman Leather Company 

Guaranty Investment Company 

Guiana Rubber Company of America 

Gussman and Company (Inc.) 

Guy Hobbs Amusement Company, The 

H. E. Allen Co. 

H. E. Fiske Seed Company 

H. F. Curtis Company 

H. F. Hall Company 

H. H. Newcomb Company 

H. L. Tannenholz Company 

H. L. Tuttle Clothing Company 

Hale's Express Company 

Hall & Company, Inc. 

Hammond Clothing Company 

Hampden Distributing Company 

Hanson Grain and Coal Company 

Happy Moments Co. 

Harlow Lunch Company 

Harper Fish Company 

Harriman New Method Laundering and Cleansing 

Company, The 
Harrington and Company, Limited 
Harrison Drug Co. 
Harvard Baking Powder Company 
Harvey Hospital (Incorporated) 
Haviland Company, The 
Hawthorne Pharmacy, The 
Health Shoe Tree Company 
Heath Engineering Company 
Henry P. Wilson Company 
Herbert L. Stearns Company 
Herbert Manufacttuing Company 
Herman Motor Car Co. 
Higyene Company 
Hillcrest "Water Company 
Hillside Corporation 
Hingham Seam Face Granite Company 
Hirshe and Richenbiu-g Co. 
Holland Company 

Holyoke City Market and Grocery Company 
Holyoke Warp Company 



Hotel & Restaurant Holding Company 

Howe and Fletcher, Inc. 

Hub Automobile & Renting Company 
, Hub Curtain Company 

Hudson Lithuanian Corporation, The 

Human Life Publishing Company 

Hyde Park General Hospital, Inc. 

Hygienic Supply Company 

LB. Case Drug Company 

I. L. Corthell Company 

Ideal Silk Store, Incorporated 

Imperial Laundry Machinery Company 

Imperial Theatre Company 

Impervoline Gil Products Company 

Independent Auto Supply Co. 

Industrail Comb Company 

International Bedding Company 

International Electric Company 

International Oil Company 

International Pneumatic Service Company 

International Remedy Company 

International Securities Company 

Interstate Amusement Company 

Interstate Shoe Cleaning Machine Company 

Italian Co-operative Association of Beverly, Inc. 

Italian Importing Company , Incorporated 

Italo-American Construction Company 

J. C. Parsons Company 

J. D. Putnam Son Company 

J. F. Elkins Co. 

J. H. Young Company 

J. J. Reagan Company 

J. L. Bradley Company 

J. L. Temple Co. 

J. Lerner Company, Incorporated 

J. M. Chandler Co. 

J. Rush Green Company 

J. W. Jordan Company 

J. W. Luther Company 

J. W. Spence Company, The 

J. W. Tuttle & Sons Co. 

Jackson Wire Company 

Jamaica Amusement Company, The 

James F. Buckley of Woonsocket, Rhode Island 

(Incorporated) 
Jamesville Construction Company 
Jeremiah Clark Machinery Company 
Jersey Fabric Company 
John C. Frohn Company 
John F. Gill Company 
John J. Walsh Company, The 
John L. Whiting and Son Company 
John P. Keefe Leather Company of Salem, Mass. 
John T. Lodge & Co., Inc. 
John W. Watters Company 
Jordon Drug Company, The 
Joseph G. Fadden Company 
Josiah Grossman Company 
Keck Manufacturing Company 
Kenerson Stamping and Tool Mfg. Company 
Kenneth Motor Company 
Kent Manufacturing Company 
Kenubestos Valve Company 
Kepp Manufacturing Company 
Kidder C. Ames Blacking Company, Inc. 
King of All Stropper Co. 
Kinsley Iron and Machine Company 
Knowlton Packing Company (1905) 
Kosmos Oil Company 
Kress Brothers Carriage Company 
L. B. Gardner Company 
L. D. Wass Company 
L. L. P. Confectionery Company 
L. M. Bowes Company, The 
L. T. Barney & Co., (Inc.) 
Lakeside Mantifacturing Company 



Laminated Manufacturing Company 

Langham Pharmacy, The 

Larsson Whip Company 

Laundry Specialty Company, The 

Lawlor Sporting Goods Manufacturing Company 

Lawrence Automatic Telephone Company 

Lawrence Base Ball Association (1884) 

Lawrence Independent Telephone Company 

Leominster Fine Tool and Machine Works, Inc., 
The 

Lester R. Moulton Company 

Lever Cream Separator Company 

Lexington Peat Company 

Lithuanian and Polish Grocery and Provision 
Company 

Lithuanian Co-operative Association of Brighton, 
Massachusetts 

London Cloak Company 

London Studios Incorporated, The 

Lord- Travis Company, Incorporated 

Louisburg Company 

Louver Ventilator Company 

Lowell and Fitchburg Electric Company 

Lowell Hat Company 

Lowell Storage Warehouse Company 

Lucky Spud Company 

Lynn Paste Manufacturing Company 

Lynn RublDer Company 

M. A. Power Co., The 

M. E. Shattuck Cigar and Tobacco Company, The 

MacLean Bros. Company 

Mack Amusement Company 

Mack and O'Connell Co. 

Madame Cairns, Inc. 

Manning and Armstrong Company 

Manufacturers' Sales Company 

Marble Quality Manufacturing Company 

Marlborough Shoe Company 

Marshall Worsted Co. 

MarysVilie Wool Scoiu^ng Company 

Massachusetts Aktzia Incorporated 

Massachusetts and Rhode Island Despatch Ex- 
press Company, The 

Massachusetts Apple Orchards Company 

Massachusetts Associates, Inc. 

Massachusetts Automobile Company 

Massachusetts Bond Guarantee Corporation, The 

Massachusetts Caloric Bath Co. 

Massachusetts Concrete Company 

Massachusetts Construction Company 

Massachusetts Correspondence Schools 

Massachusetts General Business Company 

Massachusetts Junk Collectors Corporation 

Massachusetts Loan & Security Company 

Massachusetts-Ohio Oil and Gas Company 

Massachusetts Sales Company 

Massachusetts Textile Manufacturing Company 

Massachusetts Theatre Company 

Massachusetts Trading Company 

Massachusetts Vending Co. 

Massasoit Whip Company 

Matanzas Bay Company 

Matheson Company of Boston 

Maurice J. Borofsky Company 

McPherson Bros. Co. 

Mechanics Loan and Trust, (Inc.) 

Mechanics Loan Co. 

Mediterranean Yachting Club, The 

Melcher Company 

Men of Mark in Massachusetts Company 

Mercantile Discount Company 

Merchants Dye Works 

Merchants League, Incorporated 

Merchants Protective Association 

Merrimac Amusement Company 

Merrimac Valley Steamboat Company 



Merritt Black Granite Company 

Metropolitan Collections Company 

Middle Creek Canon Coal Leasing Company 

Middlesex Leather Company ' 

Middlesex North Pomona Grange Co-operative 
Association 

Middlesex Real Estate Association of Cambridge 

Middlesex Traders Ice Company, The 

Milliken and Robie, Incorporated 

Mitchell & Harding Lumber Co. 

Mitchell Coke Company 

Modern Dress and Waist Company 

Monarch Hammock Company 

Momingside Company, (Inc.), The 

Motor Car Renting Company 

Motorcycle Specialty Company 

Mount Washington Spring Company 

Mulliken Oil Co. 

Murch & Loomis Company 

Music Hall Amusement Company 

Mutual Shoe Company, The 

Nahant Amusement Company 

Nashua River Paper Company (1894) 

Natick Citizen Printing Company, The 

National Art Academy, Inc. 

National Aviation and Construction Company 

National Butchers' Tool Supply Company 

National Cash Trading System Co. 

National Chemical & Supply Co. 

National Electric Equipment Company 

National Envelope Sealing and Stamping Manu- 
facturing Company 

National Feather Dyeing and Cleaning Company 

National Motion^ Picture Maunfacturing Company 
The 

National Motor Car Company of Boston 

National Self -Warning Fire Alarm Co., The 

National Textile Exposition, Inc. 

National Theatre Corporation 

National Ventilating Company, The 

Naiunkeag Warehouse Company 

Neponset River Coal Company 

New Bedford Polo Association 

New Bedford Waste Company, Inc. 

New England Amusement Company, The 

New England Automatic Shoe-Shining Company, 
The 

New England Barrel Machine Mfg. Co. 

New England Collateral Loan Company 

New England Delivery Co. 

New England Furnace Company, The 

New England Motor Truck Co. 

New England Patent Stage Company 

New England Shoe Manufacturing Company 

New England Society, Inc., The 

New England Trade Development Company, The 

New England Trading Company, The 

New England Underwriters, Incorporated 

New Hampshire Rawhide Pulp Board Box Co. 

New System Motor Company 

New York Leather Company 

Newton Kindergarten 

Nichols-Hill Co., Inc. 

Nickerson Manufacturing Company, The 

Nicolet Optical Company 

Norfolk and Bristol Gas and Electric Company 

North Shore Automobile Company 

North Shore Leather Company 

North Shore Transit Company 

Northampton Tobacco Co. 

Northern Massachusetts Street Railway, Company 

Noyes & Dewar Company 

Oak Grove Farm Creamery Company 

O'Brien Company 

Old Colony Construction Company 

Olds-Oakland Company of New England 



Olympic Art Society 

O'Neil Auto Garage Company 

Onesimus Medical Company 

Orient Distributing Co., Ltd. 

Osgood Novelty Company 

Overland Express Company, The 

P. J. Ferguson Company, (Inc.) 

Pacific Metal and Rubber Company 

Paddon Motor Company 

Pan-American Exporting and Importing Company, 

The 
Parisian Jewelry Company 
Parker & Jacobs, Incorporated 
Parker- Durant Co. 
Parker J. Webber Company 
Parker-Turco Company, The 
Pastime Theatre Co. of Lawrence Inc. 
Patent Stopple Manufacturing Company 
Pawtucket Granolithic Construction Co. 
Payson and Company, Incorporated 
Peacock Company, The 
Peck and "Whipple Company 
Pelley Toilet Tissue Company 
Pen and Pencil Magazine Company, The 
People's Coal and "Wood Co. 
People's Co-operative Society 
People's Co-operative Store, The 
Pepsinade Company, The 
Perfect Hat Frame Machine Company 
Perkins Manufacturing Company 
Pernin School of Business Inc., The 
Peteisburg Leather Company of Boston 
Philbrick and Webster, Inc. 
Pine Grove Mineral Spring Company, The 
Pittsfield Aero Company 
Pittsfield Soap Company 
Plymouth Cement Stone Co. 
Plymouth County Publishing Company 
Pnetunatic Life Saving Jacket Company 
Polar Brand Waist Company 
Polish Co-operative Market, Inc. 
Polish Co-operative Store, (Inc.), The 
Polonia Baking Co. 
Porter-Hildreth Company, The 
Porter Manufacturing & Cement Company 
Porter Whidded Company, The 
Powers Lunch Company 
Pratt-Reid Shoe Company 
Premier Comb Company 
Premier Leather Company 
Priscilla Woolen Company 
Prospect Farm, Incorporated 
Providence Parcel Post Corporation 
Prudential Supply Company 
Puddington Manufacturing Company 
Puritan Dental Co., The 
Puritan Farm Products Company 
Puritan Stain and Blacking Company 
Queen Theatre Company 
Quincy Adams Quarry Company 
Quincy Hack and Stable Company 
Quinsigamond Electric Power and Light Company 
R. E. Willard & Son, Incorporated 
R. Farland & Sons Company - 
Ralph F. Russett Company 
Randolph Baseball Association, Inc. 
Ravenel Company, The (Organized April 27, 1911) 
Redding Automatic Time Switch Company 
Regal Motor Company 
Reliable Auto Company 
Reliance Motor Bus Company 
Reliance Motor Truck Company of Massachusetts 
Relindo Cushion Shoe Company 
Remington Company, The 
Rice Kendall Company, The 
Richard Bros, and Company, Inc. 



Richardson Provision Company 

Richmond Iron Company, The 

Richmond Lake Ice Company 

Riverdale Woolen Company, The 

Riverside Japannery, (Inc.), The 

Robart-Carleton Co. 

Robert H. Herriman Company, Inc. 

Robert S. Jones Company 

Rochester Hotel Company, The 

Rock Ridge Farm Co. 

Rocky Hill Crystal Spring Water Company 

Roxbury Storage Salesrooms, Incorporated 

Royal Manufacturing Company 

Ruggles Motor Company 

Russell M ines. Inc. 

Ryder-Roberts Company, The 

S. C. Talbot Corporation 

S, D. Viets Company 

S. G. Hall Manufacturing Company 

S. Stayman Company 

Safety Door Check Company 

Salem, Beverly and Danvers Tow Boat Company, 
The 

Salem Shoe Manufacturing Company 

Salem Stone Tool Company 

Salisbury Beach Corporation 

Samano American Company, The 

Samson Draught Spring Company 

Samuel M. Green, Incorporated 

Sando Engineering Company 

Sanford Whip Company 

Sanitary Plumbing Co., The 

Savin Drug Company, The 

Sawyer, Regan Company 

Schmalz Publication Company 

Scott Manufacturing Company 

Sears and Chapin Mining Company 

Seeton Studio, Inc., The 

Seldon Motor Car (Company of Massachusetts 

Shaffer Sales Company, The 

Sheepskin Company 

Shelbume Falls Electric Light & Power Company 

Shoe Buyers' Information Bureau 

Shofit Mirror Company, The 

Shredded Fibre Company 

Sidney Drew Company, Incorporated 
Sippewissett Hotel Company 

Sisters Rosemary, Inc. 

Sixth Oakland Syndicate, Incorporated 

Sixth Oakland Syndicate, Incorporated 

Smith and McNault Company 

Smith Paper Company 

South Shore Steamship Company 

Southern Holding Company, The 

Southern Illinois Coal Company 

Southern Massachusetts Merchants Secret Service 

Agency, The 
Southgate Woolen Company 
Sovereign Incandescent Light Company, The 
Sparks Stain and Blacking Company, The 
Specialty Distributing Company, The 
Sprague and Breed Coal Company 
Sprague Manufacturing Company 
Springer Sanitarium Company, The 
Springfield Brazing Company 
Springfield Building Company 
Springfield City Market Company 
Springfield Hat and Cap Co., The 
Springfield Hotel Corporation 
Springfield Mica Company 
Springfield Portable House Company 
Springfield Storage Warehouse Company 
Springfield Theatre Company 

Springfield Theatrical Stage Hardware Company 
Sproule Amusement Company, The 
Standard Traction Tread Company 



Star Laundry Co. 

Sterling Fruit Products Company, The 

Stevens-Sowers Motor Car Company 

Stilson Motor Car Company 

Stirk Manufacturing Company 

Stockwell Brothers' Company 

Stoughton Auto Express Company 

Stoughton Lithuanian Co-operative Association, 
The 

Stoughton Record Company 

Suburban Auto Supply Company 

Suburban Club House Corporation 

Suffolk Silk Company 

Suomi Granite Company 

Swanson, Toombs & Sximner Company 

Sylvia Steamboat Co., The 

Synthetic Company, The 

T. Berman Co. 

T. M. Smith & Co., Incorporated 

Taconic Manufacturing Company 

Talbot-Humphrey Company, The 

Tappey-Kraus Calfskin Company 

Taunton Taxicab Company 

Tavella Shuttleless Loom Company 

Taxa Cab Company of Cambridge 

Taylor Motor Sales Company 

Thomas J. Gavin Company 

Thomas J. Young Company 

Thos. W. Spencer Company 

Thompson Lug Strap Company, The 

Tower Engineering Company, The 

Trade & Home Protection Company 

Traders Wharf and Warehouse Company 

Tribune Publishing Company 

Tropical Shipping and Trading Company 

Truscott Boat Manufacturing Company of Massa- 
chusetts. 

Tucker and Cook Manufacturing Com,pany 

Tudor Farm Motor Car Club 

Turner Last Manufacturing Company, The 

Twin Polish Com.pany 

Tyer-Collett Company, Inc., The 

U. S. Automatic Lighting Company 

Ungvasky Fur Company 

Union Auto Transportation Company 

Union Biscuit Company 

Union Brick and Machine Company 

Union Portsmouth Express Company 

Union Shoe Company 

Union Skewer Company 

Unique Shoe Manufacturing Company 

United Food Products Company 

United Outfitters Company- 
United Slipper Manufacturing Company 

United States Airomotor Company 

United States Optical Company 

Universal Blade Stropper Co. 

University Schools of Correspondence 

V. H. Moody Shoe Company 

Valley Falls Iron Foundry, Inc. 

Verescar Paint Company 

Vermont Lime Company, The 

Vigosan Medicine Company, The 

Vinemont Company, The 

Vineyard Haven Electric Light and Power Com- 
pany, The 

Virginia Timber Co. 

Vortex Vacuum Company, The 

W. D. Brackett Company 

W. E. Chipman Company 

W. G. Hall Fur Company 

W. H. Hayes Company 

W. J. Paine Co. 

W. J. Riley Company 

W. R. Cox Co. 

Waite-Robbins Motor Company 



Waldorf Company, The 
Wales Manufacturing Company, The 
Walker Drug Company 
Walker -Rintels Company, The 
Waltham Artificial Stone Company, The 
Waltham Gas Light Company 
Warren Automobile Company 
Warren P. Tobey Co. 
Washington Lunch Incorporated 
Washington Transportation Company- 
Washington Trust Company of Boston 
Water Power Development Company 
Waterhouse Company, The 
Waterproof Fibre Company 
Waterproof Linen Co. 
Waverley Drug Company 
Weather- Leather Company, The 
Weldon Leather Company 
Wellesley Auto Transit Company 
Wentworth, Good and Alger Company, The 
West Lynn Lumber Company- 
West Lynn Shoe Manufacturing Company 
West Newbury Co-operative Creamery Company, 

The 
Westfield River Lumber Company 
Wheeler and Shaw, Incorporated 
Wheelock Fence Co. 
Wheelock Rust-Proof Fence Co. 
Whiben Sales and Advertising Company 
White Eagle Bottling Company 
White Star Laundry Company, The 
Whitman Board of Trade Corporation 
Whitman Pharmacal Company 
Whitney Jewelry Company, The 
Wilder P. Clark Company 
William B. Hale Cigar Company, The 
William H. Franklin Brass Foundry Company 
William Morris, Incorporated 
Winnisimmet Amusement Company, The 
Winthrop Building Association, (Incorporated) 
Witherell Fish Company, The 
Wold Machine Company 
Woods-Allis Company 
Worcester Blacking Company 
Worcester Hebrew Co-operative Market Co. 
Worcester Leather and Heel Manufacturing Com- 
pany, The 

Worcester Railway Supply Co. 
Worcester Stonebrick and Tile Company, The 
World Glass Company 
Worthington Transportation Company 
Worthy Paper Company 
Wright Company 25 Cent Stores, Inc., The 
Wyoming Land & Live Stock Company 

Sect. 2. Nothing in this act shall be construed 
to affect any suit now pending by or against any 
corporation mentioned in the first section hereof, 
nor any suit now pending or hereafter brought for 
any liability now existing against the stockholders 
or officers of any such corporation, nor to re-vive 
any charter previously annulled or corporation 
previously dissolved, nor to make valid any de- 
fective organization of any of the supposed cor- 
porations mentioned in said first section. 

Sect. 3. Suits upon choses in actions arising 
out of contracts sold or assigned by any corpora- 
tion dissolved by this act may be brought or prose- 
cuted in the name of the purchaser or assignee. 
The fact of sale or assignment and of purchase by 
the plaintifE shall be set forth in the writ or other 
process; and the defendant may avail himself of 
any matter of defense of which he might have 
availed himself in a suit upon the claim by such 
corporation, had it not been dissolved by this act. 

Sect. 4. This act shall take efEect upon its peissage. 

Approved March 25,1912." 



I