Cestui que

Cestui que (/ˌsɛstwi ˈkeɪ/ SEST-wee KAY; also cestuy que, cestui a que) is a shortened version of "cestui a que use le feoffment fuit fait", lit. 'the person for whose use/benefit the feoffment was made'; in modern terms, it corresponds to a beneficiary. It is a Law French phrase of medieval English invention, which appears in the legal phrases cestui que trust, cestui que use, or cestui que vie. Cestui que use and cestui que trust are often interchangeable. In some medieval documents it is seen as cestui a que. In formal legal discourse it has frequently been used to refer to the relative novelty of a trust itself, before its English counterparts became acceptable.

The cestui que is the person for whose benefit (use) the trust is created. Any such person is, unless restricted by the trust instrument, fully entitled to the equitable interests such as annual rents/produce/interest, as opposed to the legal ones such as any capital gain, of the property forming the trust assets. Two subsets, B and C, can exist:

If land is granted to or held by A, for the use of B in trust for his life, with remainder to C when B dies, A is the trustee, B is cestui que use, and C the cestui que trust. Often B and C will be the same person and if so the two law French terms become synonyms. The duration of for life is not essential, it can be for a term of years, shorter time or for another living person's life, as main lawful examples. As those terms are dated and historic, though not entirely obsolete among some of the judiciary and book writers, the terms "beneficiary" – where a subdistinction is made: initial beneficiary and beneficiary in remainder – are current in general trust law.

Both cestui ques are rooted in medieval law, a legal device for avoiding feudal services (most forms of servitude) due to an overlord, by granting the land for the use of another, one who owed none of these to the lord. The law of cestui que tended to defer jurisdiction to courts of equity as opposed to the less flexible common law courts. The device was often used by people who might be absent from the kingdom for an extended time (as on a Crusade, or a business venture), who held a tenancy in the land and in return owed feudal incidents (services) to the landlord. The land could be left for the use of a third party, who did not owe those incidents to the lord.

Any such "in trust" legal status was partly to circumvent the Statute of Mortmain, which sought to end the relatively common practice of leaving real property (land, milling rights, markets, fisheries) to the Church (meaning any of its branches), on the tenant's death, so as to avoid dues (inquisitions post mortem) which could, unpaid, lead to reversion/repossession of the tenancy to the landlord. Two concepts explain the origin of mortmain ("dead hand"). First, it can be characterised as referring to the deceased donor and former owner, and their desire, in their Will that the Church inherit. Second, as the Church (a nonnatural person recognized by the common law) never dies, the land never leaves its "dead hand". Before this act, vast tracts land were left directly to the Church, which never relinquished it. Other land could be transferred to anyone, inherited only through a family line (sometimes only the male line), or revert to an over-lord or the Crown upon the death of the tenant. Church land had been a source of contention between the Crown and the Church for centuries.

Creating a trust, again, allowed branches of the Church to farm the land beneficially, while the legal title (meaning right to transfer if needed and gain or lose in capital) belonged to a corporation of lawyers or other entities, with discretion to benefit the Church, so preserving the pre-Statute practice.

It is the opinion of William Holdsworth quoting such scholars as Gilbert, Sanders, Blackstone, Spence and Digby, that cestui que in English law had a Roman origin. An analogy exists between cestui que uses and a usufructus (usufruct) or the bequest of a fideicommissum. These all tended to create a feoffment to one person for the use of another. Gilbert writes (also seen in Blackstone) "that they answer more to the fideicommissum than the usufructus of the civil law". These were transplanted into England from Roman civil law about the close of the reign of Edward III of England by means of foreign ecclesiastics who introduced them to evade the Statutes of Mortmain. Others argue that the comparison between cestui que and Roman law is merely superficial. The transfer of land for the use of one person for certain purposes to be carried out either in the lifetime or after the death of the person conveying it has its basis in Germanic law. It was popularly held that land could be transferred for the use from one person to another in local custom. The formal English or Saxon law did not always recognize this custom. The practice was called Salman or Treuhand. Sala is Old High German for "transfer". It is related to the Old English sellen, "to sell".

The earliest appearance of cestui que in the medieval period was the feoffee to uses, which, like the Salman, was held on account of another. This was called the cestui que use. It was because the feoffor could impose on him many various duties that landowners acquired through his instrumentality the power to do many things with their land. This was used to avoid the rigidity of medieval common law of land and its uses. Germanic law was familiar with the idea that a man who holds property on account of, or to the use of another is bound to fulfill his trust. Frankish formulas from the Merovingian period describe property given to a church ad opus sancti illius ("for the use of its saint"). Mercian books in the ninth century convey land ad opus monachorum ("for the use of monks"). The Domesday Book of 1086 refers to geld or money, sac and soc held in ad opus regis ("for the use of the king"), or in reginae ("of the queen") or vicecomitis ("of the viscount"). The laws of William I of England speak of the sheriff holding money al os le rei ("for the use of the king").