a thesis - Institute of Advanced Legal Studies

30 EXPRESS TRUSTS.
where a gift is made by will verbal evidence is admissible to affix
a trust upon the donee. " Where a person," as Lord Cairns said
(Jones v. Badley (1868), L. E. 3 Ch. App. 362), " knowing that a
testator, in making a disposition in his favour, intends it to be
applied for purposes other than his own benefit, either expressly
promises or by silence implies that he will carry the testator's
intention into effect, and the property is left to him upon the faith
of that promise or undertaking, it is in effect a case of a trust, and
in such cases the coiirt will not allow the devisee to set up the
Statute of Frauds, or rather the Statute of Wills by which the
Statute of Frauds is now in this respect superseded, and for this
reason:—The devisee by his conduct has induced the testator to
leave him the property, and as the Lord Justice Turner says in
Russell v. Jackson, no one can doubt that if the devisee had stated
that he would not carry into effect the intentions of the testator
the disposition in his favour would not have been found in the
will." To the same effect are the cases of Russell v. Jackson (1852,
10 Hare, 204), Tee v. Ferris (1856, 2 K. & J. 357), McCormick v.
Grogan (1869, L. E. 4 H. L. 82), and Norris v. Frazer (1873,
L. E. 15 Eq. 318).
Illustration.
A. by his will gives the residue of his property to B. and C.
On his death-bed A. communicates this to B. and C. and exacts
from them a promise to pay an annuity of 300/. a year to X. This
may be proved by verbal evidence, and when proved constitutes a
trust enforceable by X. Norris v. Frazer, supra.
Subject to statutory enactment, a trust need not be in writing,
verbal declarations being sufficient. This follows from the statement
quoted from Lewin in the previous chapter, that "trusts are of
their own nature averrable." Where no statute has modified it that
rule still holds good.
(Fordyce v. Millis (1791), 3 Br. Ch. Ca. 577; Bayley v. Boulcott
(1829), 4 Euss. 347 ; Benboiv v. Townsend (1833), 1 M. & K.
506 ; Kilpin v. Eilpin (1833), ibid. 520 ; Jones v. Lock (1865),
L. E. 1 Ch. App. 25.)
The following are examples of trusts created by word of
mouth :—
Illustrations.
1. A. lends money to B. on mortgage, giving B. verbal directions
to make out the security in the name of C., " as he intended