a thesis - Institute of Advanced Legal Studies

More documents

Recommendations

Info

52 EXPRESS TRUSTS. CHAPTER VIII.—ENFORCEABILITY OF EXPRESS TRUSTS. (1) SUBJECT as hereinafter mentioned, in every case in which an intention to create a trust for valuable consideration is expressed, the trust is enforceable at the instance of any person privy to the consideration. (2) Subject as aforesaid, a voluntary trust is enforceable, provided that:— (a) The settlor has transferred or done all in his power to transfer the trust property to the trustee; or (b) has declared himself, or directed the person in whose control it is, to be a trustee thereof. (3) No other voluntary trust is enforceable. In order to determine whether or not a trust will be enforced by the courts—setting aside any question of fraud, mistake, illegality, or other invalidating cause—it is necessary to distinguish between (1) trusts created, or intended to be created, for valuable consideration, and (2) voluntary trusts ; and in the case of the latter, between (a) perfect voluntary trusts and (b) imperfect voluntary trusts. I.—TRUSTS FOR VALUE. Where there is valuable consideration, and a trust is intended to be created, formalities are of minor importance, since, if the transaction cannot take effect as a perfectly created trust, it may be enforced by a court of equity as a contract. (Lewin, Trusts, 10th ed. 68 ; Underbill, Trusts and Trustees, 6th ed. 35; see Lee v. Lee (1876), 4 Oh. D. 175.) The matter then becomes one
ENFORCEABILITY OF EXPRESS TRUSTS. 53 of contract law, and since (exceptions excepted) no one can sue on a contract unless he is a party to the consideration, no one can enforce the contract to create the trust unless he is a party to the consideration. However, in the ordinary case of a marriage settlement, the children of the contemplated marriage itself are said to be "within the consideration of the marriage," and may enforce any covenant for their benefit contained in the settlement (Pollock, Contracts, 7th ed. 210) ; and the trustees may sue on behalf of the intended beneficiaries instead of the latter suing for themselves. II.——VOLUNTARY TRUSTS. Where no valuable consideration has been given for the creation of the trust, whether it will be enforced by the courts or not depends on whether it has been perfected or not. The rule is stated by Lord Eldon in Ettison v. Ellison (1802, 6 Ves. 656) as follows :—" I take the distinction to be that if you want the assistance of the court to constitute you cestui que trust, and the instrument is voluntary, you shall not have that assistance for the purpose of constituting you cestui que trust: as upon a covenant to transfer stock, &c., if it rests in covenant and is purely voluntary, this court will not execute that voluntary covenant. But if the party has completely transferred stock, &c., though it is voluntary, yet the legal conveyance being effectually made the equitable interest will be enforced by this court." (See also Pulvertoft v. Pulvertoft (1811), 18 Ves. Jun. at p. 99; Petre v. Espinasse (1834), 2 My. & K. 496; Bill v. Cureton (1835), ibid. 503 ; Henry v. Armstrong (1881), 18 Ch. D. 668 ; Paul v. Paul (1882), 20 Ch. D. 742 ; Harding v. Harding (1886), 17 Q. B. D. 442.) " The question, I conceive, must be simply this, whether the relation of trustee and cestui que trust has actually been established or not," said Wigram, V.-C., in Meek v. Kettlewett (1842, 1 Hare, at p. 470). (a) Perfect Voluntary Trusts.—The manner in which the relationship may be constituted, or in other words a perfect trust created, is pointed out by Turner, L. J., in Milroy v. Lord (1862, 4 De Gr. F. & J. at p. 274), where he says: "I take the law of this court to be well settled that, in order to render a voluntary settlement valid and effectual, the settlor must have done every-
Page 2:
UNIVERSITY OF LONDON INSTITUTE OF A
Page 7 and 8:
A THESIS UPON THE DEFINITION, CLASS
Page 9 and 10:
TABLE OF CONTENTS. PAOK INTRODUCTOR
Page 11 and 12:
INTRODUCTORY. THE term "trust" has
Page 13 and 14: Part L—TBUSTS IN GENEBAL. CHAPTEE
Page 15 and 16: DEFINITION OF A TRUST. 3 active or
Page 17 and 18: DEFINITION OF A TEUST. 5 owner. Thi
Page 19 and 20: DEFINITION OF A TEUST. 7 Mr. Justic
Page 21 and 22: DEFINITION OF A TRUST. 9 courts the
Page 23 and 24: DEFINITION OF A TRUST. 11 since the
Page 25 and 26: CLASSIFICATION OF TRUSTS. 13 constr
Page 27 and 28: CAPACITY OF PARTIES. 15 CHAPTEE III
Page 29 and 30: CAPACITY OF PARTIES. 17 The sanctio
Page 31 and 32: CAPACITY OF PARTIES. 19 party to it
Page 33 and 34: CAPACITY OF PARTIES. 21 Lunacy also
Page 35 and 36: THE TRUST PROPERTY. 23 CHAPTER IV.
Page 37 and 38: THE TRUST PROPERTY. 25 expectancy o
Page 39 and 40: CREATION OF EXPRESS TRUSTS OF LAND.
Page 41 and 42: CREATION OF OTHER EXPRESS TRUSTS. 2
Page 49 and 50: RULES DETERMINING INTENTION TO CREA
Page 63: RULES DETERMINING INTENTION TO CREA
Page 67 and 68: ENFOECEABILITY OF EXPRESS TRUSTS. 5
Page 69 and 70: ENFORCEABILITY OF EXPRESS TRUSTS. 5
Page 71 and 72: ENFORCEABILITY OF EXPRESS TRUSTS. 5
Page 73 and 74: DISCLAIMER OF EXPRESS TRUST, 61 CHA
Page 75 and 76: DISCLAIMER OF EXPRESS TRUST. 63 hav
Page 77 and 78: CONSTRUCTION OF EXPRESS TRUSTS. 65
Page 83 and 84: CONSTRUCTION OF EXPEESS TRUSTS. 71
Page 87 and 88: INVALIDATING CAUSES. 75 CHAPTER XI.
Page 89 and 90: INVALIDATING CAUSES. 77 Guardian an
Page 91 and 92: INVALIDATING CAUSES. 79 upon good (
Page 93 and 94: INVALIDATING CAUSES. 81 ment is not
Page 95 and 96: INVALIDATING CAUSES. 83 UNLAWFUL PU
Page 97 and 98: INVALIDATING CAUSES. 85 7. Testator
Page 99 and 100: INVALIDATING CAUSES. 87 Immoral Tru
Page 101 and 102: RESULTING TRUSTS. 89 Part IIL—IMP
Page 103 and 104: RESULTING TRUSTS. 91 to give the tr
Page 105 and 106: RESULTING TRUSTS. 93 satisfied with
Page 107 and 108: RESULTING TRUSTS. 95 tion of A.'s e
Page 109 and 110: RESULTING TRUSTS. 97 or successive,
Page 111 and 112: RESULTING TRUSTS. 99 4. Copyhold la
Page 113 and 114: RESULTING TRUSTS. 101 Lastly, if A.
Page 115 and 116:
RESULTING TRUSTS. 103 It does not s
Page 117 and 118:
RESULTING TRUSTS. 105 CHAPTER XV.
Page 119 and 120:
CONSTRUCTIVE TRUSTS. 107 B.—Const
Page 121 and 122:
CONSTRUCTIVE TRUSTS. 109 quences of
Page 123 and 124:
CONSTRUCTIVE TRUSTS. Ill (1857), 8
Page 125 and 126:
CONSTRUCTIVE TRUSTS. 113 40 Ch. D.
Page 127 and 128:
CONSTRUCTIVE TRUSTS. 115 4. A. and
Page 129 and 130:
CONSTRUCTIVE TRUSTS. 117 The follow
show all

a thesis - Institute of Advanced Legal Studies

Create successful ePaper yourself

Delete template?

Save as template?