a thesis - Institute of Advanced Legal Studies

RULES DETERMINING INTENTION TO CREATE A TRUST. 43
husband. This creates a trust in favour of the husband. Tweedalc
v. Tweedak (1878), 7 Oh. D. 633.
5. X. by deed assigns property upon trust for A. for life, and
after her decease for B. for life, and after the decease of the survivor
amongst such of the children of A. and B. then living, in
such manner, shares, times, and proportions as A. and B. jointly,
or the survivor of them separately, should appoint, and in case
there should be no such child or children, then upon trust for 0.
for life, and, after his decease, amongst such of his children in such
manner, shares, times, and proportions as he should appoint. This
is a trust in favour of O.'s children, and upon the death of A. and
B. without issue, and failure of C. to exercise his power of appointment,
all his children are entitled as tenants in common. Wilson
v. Duguid (1883), 24 Ch. D. 244.
6. A. bequeaths to her husband a life interest in certain real
property, and gives him " power to dispose of all such property by
will amongst our children." This is a mere power, and not a
trust. In re Weekes' Settlement, (1897) 1 Ch. 289.
ILLUSORY TRUSTS.
An assignment of property to trustees in trust to pay debts,
although at first sight it appears to create a trust, is generally not
enforceable by the creditors unless they are parties to it. The
rule was first laid down in Walwyn v. Coutts (1815, 3 Sim. 14),
where it was held that the creditors could not prevent the
revocation of the deed. This was expressly followed in Garrard v.
Lauderdak (1831, 3 Sim. 1 ; and 2 Euss. & My. 451), and again
in Acton v. Woodgate (1833, 2 My. & K. 492). The rule was
stated in Bell v. Cureton (1835, 2 My. & K. 503) to have been
adopted "to promote the views and intentions of parties"; and
though doubts as to the propriety of the decision were sometimes
expressed in former days (e.g., by Knight Bruce, Y.-C., in
Wilding v. Richards (1845, 1 Coll. Ch. B. 659), and by Sugden,
L. C., in the Irish case of Simmonds v. Palles (1845, 2 Jo. & Lat.
504)), the rule is now established beyond question. "It appears
to me to be too late now to question the principle of Garrard v.
Lauderdak," said James, L. J., in Johns v. James (1878, 8 Ch. D.
744). That case " seems to me to have proceeded upon the plainest