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16 TRUSTS IN GENERAL. property can make no trust of it. Similarly a person who can legally acquire and hold property can be a trustee or beneficiary and vice versa. (Lewin, Trusts, 10th ed. 19 et seq.) The persons subject to incapacity with regard to the acquisition or disposition of property are :—1. Infants. 2. Lunatics. 3. Married women. 4. Convicts. 5. Corporations. Since the Naturalization Act, 1870, aliens have been as capable of taking, acquiring, holding, and disposing of any property real and personal of every description as British subjects (s. 2), with the exception that no alien can be the owner of a British ship (s. 13). But in the law of trusts some of these possess special capacities, or are subject to special incapacities, which require consideration. I.—CAPACITY TO CREATE A TRUST. Dealing with the various classes of persons subject to incapacity in the order above mentioned, the law may be stated as follows:— Infants.—An infant is incapable, subject to exceptions stated below, of making an irrevocable disposition of his property, and therefore cannot create an irrevocable trust of it. A disposition, however, whether by way of trust or otherwise, made by an infant is not void, but voidable; i.e., it can be repudiated, but until repudiated is binding. Moreover, if the infant elects to repudiate it he must do so within a reasonable time after he conies of age; otherwise he will be bound. (Edwards v. Carter, (1893) A. C. 360.) There are two exceptions :— 1. By the custom of Kent an infant, whether male or female, not being below the age of fifteen years, seised in fee simple in possession of land subject to the custom of gavelkind, may indefeasibly alienate it by feoffment made for valuable consideration. (Challis, E. P. 3rd ed. 368.) It is said that the custom extends only to sales (Davidson, Free. vol. ii. pt. 1, 245), and if this is correct it does not enable an infant to create a trust. 2. Under the Infant Settlements Act, 1855, an infant can, with the sanction of the Chancery Division of the High Court, make a settlement, subject to certain qualifications, which will be as binding as if the settlor were of full age (s. 1).
CAPACITY OF PARTIES. 17 The sanction of the court is (notwithstanding s. 3 of the act, which required it to be by petition) obtained by summons in chambers under R. S. C. Ord. 55, r. 2 (10). The infant if a male must be of the age of twenty, and if a female of the age of seventeen (s. 4). In the case of a girl infant who marries, a very curious situation is sometimes developed, the practical effect of which is that, although she has theoretically the right of repudiating her settlement, the right cannot be effectively exercised. The result is reached in this way. At common law all personal property of a woman (except her paraphernalia) in her possession in her own right at the date of her marriage, or vesting in her in possession in her own right during it, became by the fact of the marriage the absolute property of her husband. This rule was abrogated by ss. 2 and 5 of the Married Women's Property Act, 1882 ; but s. 19 of that Act provides that nothing in the act contained " shall interfere with or affect any settlement or agreement for a settlement, made or to be made, whether before or after marriage, respecting the property of any married woman." If therefore a man of full age is about to marry a girl under age and a settlement of her property is made without the leave of the court being obtained under the act of 1855, although when she attains twenty-one she can repudiate the settlement, her personal property still remains bound by it. For nothing in the Married Women's Property Act is to " interfere with " the settlement; since therefore she can only claim the property—unless it is settled for her separate use—by virtue of either s. 2 or s. 5 of that act, and neither section can be set up against the settlement, she cannot, notwithstanding the repudiation, get her property. It belongs to the husband, who is bound by the settlement, and it must accordingly be handed to the trustees of the settlement. Hancock v. Hancock (1888, 38 Ch. D. 78), Sterensv. Trcvor-Garrick (1893, 2 Ch. 307), and Buckland v. Buckland (1900, 2 Ch. 534) are the authorities for this construction of the act. It appears to make no difference whether the trust instrument expresses that settlement of the wife's property is made or agreed to be made by husband alone, or by both husband and wife, or by wife alone. In Hancock v. Hancock, where the parties were married before 1883, there was an agreement by the husband alone ; in Stevcns v. Trcvor- Garrick there was an assignment by both ; in Buckland v. Buckland there was a recital that it had been agreed that the wife's property should be settled, followed by a declaration by the wife alone that H.
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: CAPACITY OF PARTIES. 15 CHAPTEE III
Page 31 and 32: CAPACITY OF PARTIES. 19 party to it
Page 33 and 34: CAPACITY OF PARTIES. 21 Lunacy also
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Page 39 and 40: CREATION OF EXPRESS TRUSTS OF LAND.
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CONSTRUCTION OF EXPRESS TRUSTS. 67
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CONSTRUCTION OF EXPEESS TRUSTS. 71
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INVALIDATING CAUSES. 75 CHAPTER XI.
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INVALIDATING CAUSES. 77 Guardian an
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INVALIDATING CAUSES. 79 upon good (
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INVALIDATING CAUSES. 81 ment is not
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INVALIDATING CAUSES. 83 UNLAWFUL PU
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INVALIDATING CAUSES. 85 7. Testator
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INVALIDATING CAUSES. 87 Immoral Tru
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RESULTING TRUSTS. 89 Part IIL—IMP
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RESULTING TRUSTS. 91 to give the tr
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RESULTING TRUSTS. 93 satisfied with
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RESULTING TRUSTS. 95 tion of A.'s e
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RESULTING TRUSTS. 97 or successive,
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RESULTING TRUSTS. 99 4. Copyhold la
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RESULTING TRUSTS. 101 Lastly, if A.
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RESULTING TRUSTS. 103 It does not s
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RESULTING TRUSTS. 105 CHAPTER XV.
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CONSTRUCTIVE TRUSTS. 107 B.—Const
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CONSTRUCTIVE TRUSTS. 109 quences of
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CONSTRUCTIVE TRUSTS. Ill (1857), 8
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CONSTRUCTIVE TRUSTS. 113 40 Ch. D.
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CONSTRUCTIVE TRUSTS. 115 4. A. and
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CONSTRUCTIVE TRUSTS. 117 The follow
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