a thesis - Institute of Advanced Legal Studies

50 EXPEESS TRUSTS.
whether the settlor himself could have revoked the trust before his
death was expressly left open. (See p. 503 of the report.)
There is a decision of In re Sander's Trusts (1878, 47 L. J. Ch.
667) which conflicts with these, but it seems to be the only case in
conflict with what has been said, and must, having regard to the
weight of authority against it, be considered of doubtful authority.
Illustration.
By deed of " family arrangement" made by A. and B. (father
and son) in 1867, an estate is limited to A. for life, with remainder
to trustees upon trust with consent of A. and B. during their joint
lives, or of the survivor, and after the death of the survivor at the
discretion of the trustees to sell and apply the proceeds in payment
as therein mentioned of all debts owing by A.; and subject thereto
to hold any unsold hereditaments to the uses of a deed of even date
under which A. and B. are successive tenants for life with remainder
to an infant son of B. in tail. A.'s creditors are neither parties to
nor named in the deed, nor is it ever communicated to them.
After A.'s death the trustees sell part of the estate with B.'s consent,
and out of the proceeds pay all A.'s debts except one due to
X. (A.'s sister), of which they are unaware. In 1889 the trustees,
with the concurrence of B. (who is A.'s executor), convey the
unsold property to the uses of the second deed of 1867. B. cannot
revoke the trust, and the infant tenant in tail takes the property
subject to the liability for the debt due to X. Priestley v. Ellis,
(1897) 1 Ch. 489.
(d) When an intention to create a trust otherwise appears.—In
Wilding v. Richards (1845,1 CoU. Ch. E. 655), Knight Bruce, V.-C.,
while admitting that if an instrument in favour of creditors,
though in form a trust, is intended to be a mere instrument of
agency, the intention must have effect given to it, went on to say
that it is not every deed in favour of creditors to which no creditor
is a party that is of that description; the Court in each case must
be guided by the particular circumstances. Again, in Smith v.
Hurst (1852, 10 Hare, 30), Turner, Y.-C., said in cases of deeds
purporting to be executed for the benefit of creditors, and to which
no creditor is a party, the motive of the party executing the deed
may have been either to benefit his creditors or to promote his own
convenience; and the Court there has to examine into the circum-