a thesis - Institute of Advanced Legal Studies

INVALIDATING CAUSES. 87
Immoral Trusts.—A trust against public morality is likewise
unenforceable. It is for this reason that a trust for illegitimate
children thereafter to be born has been said to be void; though a
trust for illegitimate children in esse or en venire sa mere at the date
of the instrument creating the trust is valid, and it may be that
the trust is valid in favour of all illegitimate children born before
the instrument comes into operation. This was the decision of the
majority of the Court of Appeal in Occleston v. Fullalove (1874,
L. E. 9 Ch. App. 147), though Lord Selborne dissented. In discussing
the rule that future illegitimate children cannot take under
a trust, Lord Justice James in that case (p. 160) says: " If the
expression ' future children' be limited to what I conceive to be its
more accurate meaning—children to come into existence after the will
itself has really come into existence as the last will of the testator,
viz., after his death—then I would at once, for reasons subsequently
given, concede that there is or may be such a rule of law
as that referred to. But if it be extended to apply to children
coming into existence between the date or execution of the will
and the death of the testator, then, in my humble judgment, the
proposition is not one to be assumed as it appears to have been."
.... Lord Justice Mellish, in the same case, draws a distinction
between a trust for future illegitimate children in a deed and one in
a will on the ground that the former operates from the date of its
execution, the latter from the death of the testator. He granted
that in the former case the gift is void as tending to immorality
(p. 171), but held that in the latter it is good as regards children
born or en ventre sa mere before the testator's death, although after
the date of the will. It seems clear that a trust cannot be
effectively made in favour of illegitimate children to be born after
the date when the will comes into operation, namely, the death of
the testator.
Trusts against Public Policy.—Finally, any trust the purpose of
which is contrary to public policy is void. The leading case 011
this subject is Egerton v. Earl Broicnloiv (1853, 4 II. L. C. 1).
The case arose upon the will of the seventh Earl of Bridgewater,
who devised very large real estates to trustees to make a settlement
according to the limitations stated in the will. One of these was
to Lord Alford for the term of ninety-nine years, if he should so
long live ; remainder to trustees to preserve contingent remainders ;
remainder to the use of the heirs male of his body, with remainder