a thesis - Institute of Advanced Legal Studies

ENFORCEABILITY OF EXPRESS TRUSTS. 59
since it was not A.'s intention to constitute himself a trustee, but to
vest the trust in B., and this has not been done, the bank shares
being transferable only in the books of the bank and no transfer
having been made to B. Milroy v. Lord (1862), 4 De Gr. F. & J.
264.
5. A. executes a voluntary settlement containing a recital that
a sum of 2,000/. has been paid to B., and declaring that B. shall
stand possessed thereof upon trust for A. for life, with an ultimate
trust in favour of A.'s next of kin. The recital is untrue, and A.
dies without paying B. A.'s next of kin cannot enforce the trust.
Marler v. Tommas (1873), L. E. 17 Eq. 8.
6. A. voluntarily covenants with trustees to assign a fund to
them upon certain trusts with ultimate remainder to A.'s next of
kin. A. dies without having executed an assignment of the fund.
The fund belongs to A.'s personal representatives, and the next of
kin have no claim upon it. In re D'Angibau (1879), 15 Ch. D.
228.
Imperfect Voluntary Trusts in Wills.—It is sometimes stated
that the Court will enforce a voluntary trust in a will, as if this
were an exception to the general rule that an imperfect voluntary
trust will not be enforced (see, e.g., Underbill, Trusts and Trustees,
6th ed. 34); but it is difficult to imagine a trust created by will in
which the testator does not either transfer, or do all in his power
to transfer, the trust property to the trustee, or make himself or
the person in whose control it is a trustee thereof. The case,
therefore, seems to be covered by Eule (2) stated above.
Imperfect Voluntary Trusts for Charities.—There is a passage
in Snell's Equity (12th ed. 118) which appears to suggest that
if the trust is charitable it will be sustained even though voluntary
and imperfect. The case cited in support of this is Sayer v.
Sayer (1849, 7 Hare, 377; affirmed on appeal as Lines v. Sayer
(1851), 3 Mac. & Gr. 606). In this case A. had power to
appoint stock by her will "signed, sealed and published in
the presence of and attested by two or more witnesses." A.
made an unattested will prior to the Wills Act, 1837, by which
she purported to give the stock to or to the treasurers of certain