a thesis - Institute of Advanced Legal Studies

RULES DETERMINING INTENTION TO CREATE A TRUST. 39
the question as if it were independent of authority." But, notwithstanding
the Lord Justice's " of course," one cannot help
feeling, when the older cases are compared with the newer, that
the law has been altered, or, to adopt a commonly used phrase,
" the current of authority has been changed."
Precatory trusts are usually found in wills, but the doctrine is
not confined to wills; it extends to instruments inter vivos (Lidiard
v. Lidiard (1860, 28 Beav. 266)—although some doubt as to this
was expressed by Chitty, L. J., in Hill v. Hill (1897, 1 Q. B. at
p. 493)—and there seems to be no reason why the doctrine should
not apply to verbal trusts as well. (See Encyc. Eng. Law,
sub tit. Precatory Trusts, vol. 10, 292.) The old cases on the
subject will be found collected in the notes to Harding v. Glyn,
White & Tudor, L. C. Eq. (7th ed.) vol. ii. 335; in Encyc. Eng.
Law, cited above; and Lewin on Trusts, 10th ed. 140 et seq.; but,
except such of them as decide against the existence of a trust, they
cannot now be relied on.
Illustrations.
1. A. by his will gives his estate to his widow (B.), " to be at
her disposal in any way she may think best for the benefit of
herself and family." This does not constitute a trust in favour of
A.'s children; and a gift under B.'s will to the illegitimate child
of one of A.'s sons is valid. Lamb v. Eames (1871), L. R. 6 Ch.
App. 597.
2. A. by his will gives all the rest, residue, and remainder of his
estate both real and personal to B., her heirs and assigns for ever
" to and for her own proper use and benefit for ever " separately
from her husband, " and the proceeds to be applied by her in the
bringing up and maintenance of" all B.'s children. This does not
constitute a trust in favour of B.'s children. Mackett v. Mackett
(1872), L. E. 14 Eq. 49.
3. A. bequeaths all his property to B. and for her "to do
justice to those relations on my side such as she think worthy of
remuneration, but under no restriction to any stated property, but
quite at liberty to give and distribute what and to who " B. " may
please." This does not create a trust. In re Bond, Cole v.
Hawes (1876), 4 Ch. D. 238.