a thesis - Institute of Advanced Legal Studies

More documents

Recommendations

Info

94 IMPLIED TRUSTS. law, though the former case can no doubt be explained on the ground of fraud. Apart from authority it is difficult to see why there should be any difference between personal property and land. Before the Statute of Uses, as Chief Baron Eyre pointed out in Dyer v. Dyer (infra], if a feoffment were made without consideration, the use resulted to the feoffor. One would have thought, therefore, that after the statute there would have been a resulting trust on a voluntary conveyance " unto and to the use of " the grantee, and that this resulting trust would have been saved by sect. 8 of the Statute of Frauds. Whatever may be the true view as to this, it is clear that where a transfer of property is made to a wife or child, or one to whom the transferor stands in loco parent is, there is a presumption of the same kind that the transferor intended it as an advancement, just as in the case of a purchase in the name of such persons. (Lewin, Trusts, 10th ed. 156.) This appears to have been tacitly assumed in Say re v. Huglies, Foickcs v. Pascoe, Batstone v. Salter, and in Standing v. Boicring (supra) ; although with the exception of the somewhat vague case of Joinings v. Scllick (1687,1 Yern. 683), there was apparently no direct authority for it before the case of In re Orme (1884, 50 L. T. 51), where Kay, J., says, " Now I think it is quite clear by authority that if advances are made to a person to whom the individual who makes the advances is in loco parent is, that those advances are prtmd facie gifts," and decided that the money advanced in that case by a mother to her son for business purposes was a gift to the son. Illustrations. 1. A widow transfers certain East India Stock which stands in her own name into the names of herself and her unmarried daughter. There is a presumption of intention to benefit the daughter, and in the absence of evidence the daughter is entitled on the death of her mother. Say re v. Hughes (1868), L. B,. 5 Eq. 376. 2. A., widow, makes small advances from time to time to her son B., to whom she is in loco parent is, to enable him to carry on business or for his maintenance. A. never attempts to recover these moneys, nor does she take any acknowledgment of them. After A.'s death B. cannot be charged with them in the admimstra-
RESULTING TRUSTS. 95 tion of A.'s estate. In re Orme, Evans v. Maxwell (1884), 50 L.T. 51. "Where the transferee is expressed to take as trustee verbal evidence is not admissible to prove that the transfer is intended to include the beneficial interest (Langham v. Sandford (1811), 17 Yes. 442; 19 Ves. 643; and Irvine v. Sullivan (1869), L. E. 8 Eq. 673). It was admitted in the old case of Docksey v. Docksey (1708, 2 Eq. Ca. Ab. 506), but only to prove that the transferee was intended to take in trust for a person other than the plaintiff. But in the case of Cook v. Hutchinson (1836, 1 Keen, at p. 50,', which was a case of a transfer by deed inter vivos, the Master of the Eolls (Lord Langdale) says distinctly that the resulting trust may be rebutted by parol evidence. In the case of Biddulph v. Williams (1875, 1 Ch. D. 203), also, where the transferee was not expressed to take as trustee and the transfer was by deed inter vivos, extrinsic evidence was admitted to show that the transferee was intended to take beneficially, although it appears from the report that the defendants waived any objection to the admission of the evidence. Where, however, the transfer is by will extrinsic evidence is apparently not admissible. It is sometimes stated that there is no resulting trust of unexhausted residue when the cestui que trust is a charity ; this is, however, scarcely accurate ; the question is purely one of construction. " We must look at the instruments," said Lord Campbell in Att.-Gen. v. Dean of Windsor (1860, 8 H. L. C. at pp. 393, 394), " and see whether taking them altogether we discover an intention on the part of the donors that the rents should be divided in certain proportions and given to the different objects of the bounty of the donors in those proportions, or whether the intention manifested is that specified sums should be permanently paid to particular objects of the bounty of the donors, and that they should be entitled to nothing more than the payment of those specified sums, without abatement and without augmentation." (See Tudor, Charitable Trusts, 3rd ed. 46 et seq.)
Page 2:
UNIVERSITY OF LONDON INSTITUTE OF A
Page 7 and 8:
A THESIS UPON THE DEFINITION, CLASS
Page 9 and 10:
TABLE OF CONTENTS. PAOK INTRODUCTOR
Page 11 and 12:
INTRODUCTORY. THE term "trust" has
Page 13 and 14:
Part L—TBUSTS IN GENEBAL. CHAPTEE
Page 15 and 16:
DEFINITION OF A TRUST. 3 active or
Page 17 and 18:
DEFINITION OF A TEUST. 5 owner. Thi
Page 19 and 20:
DEFINITION OF A TEUST. 7 Mr. Justic
Page 21 and 22:
DEFINITION OF A TRUST. 9 courts the
Page 23 and 24:
DEFINITION OF A TRUST. 11 since the
Page 25 and 26:
CLASSIFICATION OF TRUSTS. 13 constr
Page 27 and 28:
CAPACITY OF PARTIES. 15 CHAPTEE III
Page 29 and 30:
CAPACITY OF PARTIES. 17 The sanctio
Page 31 and 32:
CAPACITY OF PARTIES. 19 party to it
Page 33 and 34:
CAPACITY OF PARTIES. 21 Lunacy also
Page 35 and 36:
THE TRUST PROPERTY. 23 CHAPTER IV.
Page 37 and 38:
THE TRUST PROPERTY. 25 expectancy o
Page 39 and 40:
CREATION OF EXPRESS TRUSTS OF LAND.
Page 41 and 42:
CREATION OF OTHER EXPRESS TRUSTS. 2
Page 43 and 44:
Page 45 and 46:
Page 47 and 48:
Page 49 and 50:
RULES DETERMINING INTENTION TO CREA
Page 51 and 52:
Page 53 and 54:
Page 55 and 56: RULES DETERMINING INTENTION TO CREA
Page 65 and 66: ENFORCEABILITY OF EXPRESS TRUSTS. 5
Page 67 and 68: ENFOECEABILITY OF EXPRESS TRUSTS. 5
Page 73 and 74: DISCLAIMER OF EXPRESS TRUST, 61 CHA
Page 75 and 76: DISCLAIMER OF EXPRESS TRUST. 63 hav
Page 77 and 78: CONSTRUCTION OF EXPRESS TRUSTS. 65
Page 83 and 84: CONSTRUCTION OF EXPEESS TRUSTS. 71
Page 87 and 88: INVALIDATING CAUSES. 75 CHAPTER XI.
Page 89 and 90: INVALIDATING CAUSES. 77 Guardian an
Page 91 and 92: INVALIDATING CAUSES. 79 upon good (
Page 93 and 94: INVALIDATING CAUSES. 81 ment is not
Page 95 and 96: INVALIDATING CAUSES. 83 UNLAWFUL PU
Page 97 and 98: INVALIDATING CAUSES. 85 7. Testator
Page 99 and 100: INVALIDATING CAUSES. 87 Immoral Tru
Page 101 and 102: RESULTING TRUSTS. 89 Part IIL—IMP
Page 103 and 104: RESULTING TRUSTS. 91 to give the tr
Page 105: RESULTING TRUSTS. 93 satisfied with
Page 109 and 110: RESULTING TRUSTS. 97 or successive,
Page 111 and 112: RESULTING TRUSTS. 99 4. Copyhold la
Page 113 and 114: RESULTING TRUSTS. 101 Lastly, if A.
Page 115 and 116: RESULTING TRUSTS. 103 It does not s
Page 117 and 118: RESULTING TRUSTS. 105 CHAPTER XV.
Page 119 and 120: CONSTRUCTIVE TRUSTS. 107 B.—Const
Page 121 and 122: CONSTRUCTIVE TRUSTS. 109 quences of
Page 123 and 124: CONSTRUCTIVE TRUSTS. Ill (1857), 8
Page 125 and 126: CONSTRUCTIVE TRUSTS. 113 40 Ch. D.
Page 127 and 128: CONSTRUCTIVE TRUSTS. 115 4. A. and
Page 129 and 130: CONSTRUCTIVE TRUSTS. 117 The follow
show all

a thesis - Institute of Advanced Legal Studies

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?