a thesis - Institute of Advanced Legal Studies

38 EXPRESS TRUSTS.
L. It. 6 Cli. App. 597), in which James, L. J.,in deciding that no trust
had been created, said: "In hearing case after case cited, I could
not help feeling that the officious kindness of the Court of Chancery
in interposing trusts where in many cases the father of the family
never meant to create trusts must have been a very cruel kindness
indeed. I am satisfied that the testator in this case would have
been shocked to think that any person calling himself a next friend
could file a bill in this court, and, under pretence of benefiting the
children, have taken the administration from the wife. I am
satisfied that no such trust was intended, and that it would be a
violation of the clearest and plainest wishes of the testator if we
decide otherwise."
This view of the meaning of precatory words having been
followed in several other cases (see below), the conflict between the
older and modern authorities was at length settled by the Court of
Appeal in favour of the latter in In re Adams and the Kensington
Vestry (1884, 27 Ch. D. 394), in which Cotton, L. J., said: "I
have no hesitation in saying myself that I think some of the older
authorities went a great deal too far in holding that some particular
words appearing in a will were sufficient to create a trust. ....
Having regard to the later decisions, we must not extend the old
cases in any way or rely upon the mere use of any particular
words, but, considering all the words which are used, we have to
see what is their true effect, and what was the intention of the
testator as expressed in his will."
These opinions have frequently been approved, and the
decisions have been uniformly followed by the Court of Appeal
(see, e.g., In re Diggles, Gregory v. Edmondson (1888), 39 Ch. D.
258; In re Hamilton, Trench v. Hamilton, (1895) 2 Ch. 370 ; Hillv.
Hill, (1897) 1 U. B. 483 ; In re Williams, Williams v. Williams,
(1897) 2 Ch. 18 ; In re ffanbury, Hanburtj v. Fisher, (1904) 1 Ch.
415 ; and In re Ohlfield, Oldfield v. Oldfield, (1904) 1 Ch. 549),
save that in In re Williams Eigby, L. J., who dissented from the
opinion of the majority, said: " In theory I do not think there
ever has been, at any rate for a century, any doubt as to the
principles on which a trust or condition should be deduced, if at
all. .... On these fundamental points there never has been any
real difference, though the application of them to particular cases
has not always been satisfactory. Of course the Court of Appeal
cannot in recent cases have intended in any way to alter the settled
law on the subject, or to have assumed a jurisdiction to deal with