a thesis - Institute of Advanced Legal Studies

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-