a thesis - Institute of Advanced Legal Studies

62 EXPRESS TRUSTS.
Mr. Lewin says: " It may be laid down as a clear and undis-
«/ */
puted rule that no one is compellable to undertake a trust."
(Trusts, 10th ed. 209.) It follows that any person appointed a
trustee has a right to disclaim the office.
A disclaimer should be made by deed, for a deed is clear
evidence and admits of no ambiguity ; but a deed is not necessary,
and a verbal disclaimer has been held sufficient (Foster v. Daicber
(1860), 8 W. E. 646), as has also a disclaimer by mere conduct.
(Stacey v. Elph (1833), 1 M. & K 195; In re Gordon (1877),
L. E. 6 Oh. App. 531; In re BirchaU (1889), 40 Ch. D. 436.)
And since the trustee cannot disclaim the office without also disclaiming
the legal estate in the trust property, if his conduct shows
that he has disclaimed the trusteeship, it also shows that the legal
estate is not in him. (In re Birchall, supra.}
The disclaimer must be of the whole trust; a disclaimer of part
only is invalid. It is not competent for any trustee to say : " I will
attend to some of the trusts, and I will not attend to others." So
that even though part of the trust property be in England and
part in a foreign country, and the trustee be resident in the foreign
country, if he accepts the trusts as to the foreign property he
accepts them wholly, or, putting it conversely, if he executes a disclaimer
of the trusteeship so far as it relates to the English property
only, it does not operate as a disclaimer at all. (In re Lord
and Ful/erton's Contract, (1896) 1 Ch. 228.)
A disclaimer ought to be made without delay. If the trustee
allows more than a reasonable length of time to elapse a presumption
arises that he has accepted. It is then a question of fact
whether his acquiescence amounts to an acceptance of the office.
(Lewin, 210, 214.) And the disclaimer must be made before the
trustee has entered on the duties of the office, for a trustee who has
once accepted the trust cannot afterwards renounce it. (Snell,
Equity, 12th ed. 151; Underbill, Trusts and Trustees, 6th
ed. 148.)
Sect. 7 of the Eeal Property Act, 1845, provides that an estate
or interest in any tenements or hereditaments in England of any
tenure may be disclaimed by a married woman by deed; and that
every such disclaimer shall be made conformably to the provisions
of the Fines and Eecoveries Act, 1833. Having regard to the
decision in In re Harkness and Attsopp's Contract (1896, 2 Ch.
358), the Married Women's Property Act, 1882, does not seem to