a thesis - Institute of Advanced Legal Studies

DISCLAIMER OF EXPRESS TRUST, 61
CHAPTER IX.—DISCLAIMER OF EXPRESS TRUST.
(1) SUBJECT as hereinafter mentioned, every person
appointed a trustee may disclaim the trust either by
writing1 with or without seal or by word of mouth or by
conduct showing an intention to disclaim.
(2) A disclaimer must be of the whole trust, and must
be made within a reasonable period, and before the
trustee has done any act showing an intention to accept
the trust.
(3) Where the trust includes any estate or interest in
land, a married woman must disclaim in manner provided
by sect. 7 of the Real Property Act, 1845.
(4) A disclaimer by one of two or more co-trustees
vests the trust in the other or others, and makes him or
them sole trustee or trustees from the date of the creation
of the trust.
In the reports of Lord Nottingham's time are two cases (Gas.
temp. Finch, 32, 258) in which it was sought to compel trustees to
accept trusts: in Clifton v. Sacheverell the trustee was ordered to
accept on having a full indemnity from the cestui que trust, and in
Hussey v. Mark/mm a similar decree was made on the following
conditions, suggested by the trustee, that the master be directed to
take accounts every year, and to allow costs and charges, and that
the trustee be not chargeable with any money but what he or
others by his orders should actually receive, and be not obliged to
pay for any loss unless it were occasioned by his wilful negligence
or default. (Kerly, History of Equity, 199.)
It is plain, however, that nowadays a trustee is not compellable
to accept a trust unless he has contracted to do so.