a thesis - Institute of Advanced Legal Studies

24 TRUSTS IN GENERAL.
If, however, the property is incapable of assignment, either
from its nature or on the ground of public policy, or by express
statutory enactment, it cannot be made the subject of a trust. So
it was held in the Buckhurst Peerage (1876, 2 App. Cas. 1) that a
title of honour such as a peerage cannot be made the subject of a
trust, because it is a personal possession and cannot be held by one
person in trust for another. And in Dads v. Duke of Marlborough
(1818,1 Swanst. 74) that the pension granted by the stat. 5 Anne,
c. 4, to the great Duke of Marlborough and his posterity as a
reward for his public services could not be validly assigned upon
trust. The principle on which property is held incapable of being
assigned in cases like the last is explained by Lord Langdale in
Grenfell v. The Dean and Canons of Windsor (1840, 2 Beav. at
p. 549). "There are various cases," he says, "in which public
duties are concerned, in which it may be against public policy, that
the income arising for the performance of those duties should be
assigned; and for this simple reason, because the public is interested,
not only in the performance from time to time of the
duties, but also in the fit state of preparation of the party having
to perform them. Such is the reason in the cases of half pay,
where there is a sort of retainer and where the payments which are
made to officers from time to time are the means by which they,
being liable to be called into public service, are enabled to keep
themselves in a state of preparation for performing their duties.
If, therefore, they were permitted to deprive themselves of their
half pay, they might be rendered unable promptly to enter upon
their duties when called upon, and the public service would be
thereby greatly injured. So also where pension or remuneration
is given for a purpose which tends less directly to the public
benefit, as, for instance, was the case in Da vis v. The Duke of Marlborough.
.... In that case the pension was held inalienable,
because it was considered that one of the objects of giving the
pension, namely, for having a perpetual memorial of national
gratitude for public services, would be entirely lost; and so in the
course of the case Lord Eldon said, in the way of illustration and
in allusion to the pension of a great public officer, that it could
not be aliened because that public officer must not be allowed to
fall into such a situation as to make it difficult for him in consequence
of any pecuniary embarrassment to maintain the dignity
of his office."
Further, the subject of the trust must be property. A mere