fyS\ dnruf U fiam *rl(onl Bbtarg Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018806277 CASES ON TRUSTS. CHAPTER I. VOLUNTARY TRUSTS. ANONYMOUS. , 1533. [Reported in Brooke's Abridgment, Feoffments al Uses, pi. 54, March's Translation, 95.] A MAK caDnot sell land to I. S. to the use of the vendor, nor let land to him rendring rent, hahend. to the use of the lessor, for this is con- trary to law and reason, for he hath recompence for it : and by Hales, a man cannot change a use hy a covenant which is executed before, as to covenant to bee seised to the use of W. S. because that W. S. is his cosin ; or because that W. S. before gave to him twenty pound, except the twenty pound was given to have the same land. But otherwise of a consideration, present or future, for the same purpose, as for one hundred pounds paid for the land tempore conventioms, or to bee paid at a future day, or for to marry his daughter, or the like.^ DOCTOR AND STUDENT, Chapter 22, Dialogue II. 1519 (?). Doct. May not a Use be assigned to a Stranger as well as to be re- iserved to the Feoffor, if the Feoffor so appointed it upon his Feoffment? 1 Ward V. Lamtert, Cro. El. 394 ; 2 BoU. Abr. 783 (H.), pi. 7 ; 22 Vin. Abr. Uses (H.), pi. 7, 8. 0. ; Ostom v, Bradshaw, Cro. Jac. 127 ; Crossing v. Scudamore, 1 Vent. 137, accord. " In a special verdict in agreement, the only point was, whether a lease for a year, made upon no other consideration than the reservation of a pepper-com, shall operate as a bargain and sale, and make the lessee capable to take a release 1 Et per Curiam, it shall, for the reservation of a pepper-corn is a sufficient consideration to raise an use." 3 Salk. 387 ; 2 Vent. 35; 2 Mod. 249, S. c — Md. VOL. I. 1 NOTE. [CHAP. i. Stud. Yes, as well, and in like wise to the Feoffee, and that upon a free Gift, without any Bargain or Eecompence, if the Feoffor so will. Doct. What if no Feoffment be made, but that a Man grant to his Feoffee, that from henceforth he shall stand seised to his own use? Is not that Use changed, though there be no Eecompence ? Stud. I think yes, for there was an Use in esse before the Gift, whicli he might as lawfully give away, as he might the Land if he had it ir. possession.^ I>oct. And what if a Man being seised of Land in Fee, grant to another of his mere motion without Bargain or Eecompence, that he from thenceforth shall be seised to the Use of the other ; is not that Grant good ? Stud. I suppose that it is not good ; for, as I take the Law, a Man cannot commence an Use but by Livery of Seisin, or upon a Bargain, as [or?] some other Eecompence. NOTE. [Reported in 1 Anderson, 37, plaeitum 95.2] Note by aU the justices, that if one without any consideration enfeoffs another by deed to have and to hold the land to the feoffee and his heirs to his own use, [and] the feoffee suffers the feoffor to occupy the land for divers years, stiU the right is in the feoffee because there is an express use contained in the deed, which is enough without other con- sideration ; the law is the same when the feoffment is to the use of a stranger and his heirs.' 1 " I say there is no doubt but that if I sell you my use, the use is changed from my person to you : so I understand that if I say to you, ' I give you my use in certain lands,' you have the use by such words ; for the use does not pass as the land does ; for land cannot pass except by lively, but a use passes by bare words." Per yori: Y B 27 H. VIII. fol. 8, pi. 22. —Ed. 2 22 Vin. Abr. Uses (G. 4), pi. 4, s. c. —Ed. 3 Calthrop's Case, Moore, 101, pL 247 ; Steijhenson v. Layton, Owen, 40 ; 1 Leon. 138, pi. 188, s. c. ; Mildmay's Case, 1 Eep. 176 i ; Lloyd v. SpUlet, Barnard. 384, 387, accord. "When the estate was by legal conveyance transferred to a person to uses eauitv made no scruple in enforcing the trustee to observe the uses. The estate being actual! Tufnell V. Constable, 8 Sim. 69 ; Cross v. Sprigg, 6 Hare, 552, contra. — Ed. CHAP. I.] MEEK V. KBTTLEWELL. 43 his said daughter and her children as are thereinbefore declared of his real estate, or as near thereto as the nature of the property and the rules of law would admit ; but if his said daughter should have no child living at her decease, then as to the sum of £100 (part of the said sum of £11,000), in trust for E. L. Dawson, and as to the residue of the said sum of £11,000 in trust for the next of kin of the testator's said daughter Hannah (exclusive of a husband) , in a course of distri- bution aecorduig to the statute. The testator appointed the same trustees the executors of his will. On the nth of March, 1839, the testator died, leaving the defendant, Mary Kettlewell, his widow, and also the said Hannah, his daughter, surviving. The will was proved by the executors, and the £11,000 was duly invested in their names. On the 20th of June, 1839, Hannah, the daughter, married the plain- tiff, J. Meek, the younger. By an indenture, dated the 10th September, 1839, and made between the defendant, Mary Kettlewell, of the first part, and the plaintiff, of the second part, reciting the will of the testator, and his death, and that the said defendant, in the event of the death of the testator's daughter, with- out leaving issue her surviving, would become entitled to the residue of the £11,000 as the next of kin of her said daughter, and reciting that the said defendant had contracted and agreed with the plaintiff to gi-ant and assign the residue of the £11,000 to him, his executors, adminis- trators, and assigns, it was witnessed, that, in pursuance of the said contract, and in consideration of the natural love and affection of the said defendant for the plaintiff, as the husband of her daughter, and in consideration also of the sum of 10s. by the said James Meek, the younger, to the said defendant paid, the receipt whereof was thereby acknowledged, the said defendant, Mary Kettlewell, granted, bargained, sold, assigned, transferred, and set over unto the plaintjff, his execu- tors, administrators, and assigns, all that the said reversionary or ex- pectant estate of her the said defendant of, in, and to the said sum of £11,000, and of and in the interest and proceeds to grow due and paj'a- ble for the same : and also the said sum of £11,000 (after paying thereout the said sum of £100), and every part thereof, and all interest and proceeds thereafter to grow due or become payable for the same, upon trust, as to the said sum of £100 (parcel of the said sum of £11,000), for the said R. L. Dawson, according to the purport of the said will ; as to the sum of £3,000, other parcel of the said sum of £11,000, in trust for the said defendant, her executors, administrators, or assigns, to and for her and their own absolute use and benefit ; and as to the sum of £7,900 (the residue of the said sum of £11,000), m trust for the plaintiff himself, his executors, administrators, and assigns, to and for his and their own absolute use and benefit : and for 44 MEEK V. KETTLEWBLL. [OHAP. I. the better enabling the plaintiff to receive and take the said money and premises, the said defendant constituted him, his executors, adminis- trators, and assigns, her attorney and attorneys irrevocable, in her name to demand, receive, and take the said premises of and from the said trustees, or whom else it should concern to pay or transfer the same, upon the decease of the said Hannah, the daughter of the said testator, without issue her surviving ; and then followed the usual power to the plaintiff to give effectual receipts for the moneys which he should receive, and the common covenants for good title, and for further assurance. On the 21st December, 1839, the plaintiff signed a memorandum on the back of the indenture of the 10th of September, 1839, which was in the following words : — " Memorandum, — That I, the within-named James Meek, the younger, at the request of the within-named Mary KettleweU, and upon condition that the will of my dear wife, Hannah, dated the 23d day of August last past, shall remain valid, unrevoked, unaltered, and uncan- celled, at the time of my said dear wife's death, have agreed, and do hereby agree, to allow and pay to the said Mary KettleweU the further sum of £3,000 out of the within-named sum of £7,900. Witness my hand, this 21st day of December, 1839." On the 7th of January, 1840, Hannah, the plaintiff's wife, died with- out issue, and thereupon defendant, her mother, became under the limitation in the will entitled to the £11,000, subject to the payment of £100 to Dawson. The fund remained standing in the names of the trustees, appointed by the testator. It did not appear that any notice had been given to the trustees, either of the assignment of the 10th of September, or of the subsequent indorsement thereon. The defendant, Mary KettleweU, did not consent to the application of the fund accord- ing to the l^rms expressed by the assignment or the memorandum ; and the trustees declined to act in conformity with those instruments without her sanction. The bill was then filed against the widow and the trustees, praying that the performance of the trusts of the indenture of assignment might be decreed. Mr. J. RusseU and Mr. Keene, for the plaintiff. "^ Mr. Sharpe, Mr. Wilbraham, and Mr. Willcock, for the defendant, Mary KettleweU. Mr. Rohson, for the trustees. Vice-Chancellok. The plaintiff in this case has filed his biU to obtain the benefit of a trust declared in his favor, upon the indenture of assignment of the 10th of September, 1839. It is admitted that this assignment was voluntary, and that the memorandum of the 21st 1 The arguments of counsel, which were stated by the reporter ex relatione, are omitted. — Ed. CHAP. I.] MEEK V. KETTLEWELL. 45 December, 1839, has not in that respect altered the character of the transaction ; and the defendant, Mrs. Kettlewell, insists that she is not bound by it, or by the memorandum, and she claims the fund in the hand of the trustees. In support of the plaintiff's claim, I was referred to the well-known principle recognized and established by the cases of Colman v. Sarrel, Ellison V. EUison,'' and Pulvertoft v. Pulvertoft,^ that where a trust is actually created in favor of a volunteer, a court of equity wiU enforce its execution, although it will not lend its aid to enforce a voluntary agreement. And according to Lord Eldon's decision in JSx parte Pye and Ex parte Dubost, a party may so constitute himself a trustee that a court of equity will execute the trust in favor of a volunteer. " It is clear" (says Lord Eldon in that case) "that this court will not assist a volunteer ; yet, if the act is completed, though voluntary, the court will act upon it. It has been decided that, upon an agreement to transfer stock, this court will not interpose ; but if the party has declared himself to be the trustee of that stock, it becomes the property of the cestui que trust without more, and the court will act upon it." If the limits of the law were to be collected from the facts of the cases I have referred to, they would not perhaps go further than to establish, that where the legal interest in property is transferred or acquired in pursuance and in execution of an antecedent agreement or direction leading the uses or trusts of that property, or as part of the transaction creating the trust, the court will execute the trust though voluntary. There does not, however, appear to be any reason why the doctrine of the court should be so confined, provided the trust is actually created, and the relation of trustee and cestui que trust established between the parties. The language of Lord Eldon in the passage I have cited is not so limited ; and from the late cases of Wheatley v. Purr and Col- linson v. Pattrick « I conclude that Lord Langdale takes a similar view of the subject. The question, I conceive, must be simply this, whether the relation of trustee and cestui que trust has been actually established or not. In the case of a formal declaration of trust by the legal or even bene- ficial owner of property, declaring himself in terms the trustee of that property for a volunteer, many considerations might arise which do not apply to the case now before me. The court in that case might not be bound to look beyond the mere declaration. If the owner of property having the legal interest in himself were to execute an instrument by which he declared himself a trustee for another, and had disclosed that instrument to the cestui que trust, and afterwards acted upon it, that might perhaps be sufficient ; for a court of equity, adverting to what 1 6 Ves. 656. ^ 18 Ves. 84. 3 2 Keen, 123. 46 MEEK V. KETTLEWELL. [CHAP. I. Lord Eldon said in Hx parte Dubost, might not be bound to inquire further into an equitable title so established in evidence. Again, if the equitable owner of property, the legal interest of which was in a trustee, should execute a voluntary assignment of the property, and authorize the assignee to sue for and recover the property from that trustee, and the assignee should give notice thereof to the trustee, and the trustee should accept the notice and act upon it, by paying the dividends or interest of the trust property to the assignee during the life of the assignor and with his consent, it might be difficult for the executor or administrator of the assignor afterwards to contend that the gift of the property was not perfect in equity. But such circumstances do not occur in the present case. There is here no formal declaration of trust. This is the case of a voluntary assignment of which the trustees never had notice, and which was never acted upon ; and the question is, simply, whether the facts which have been established, as against Mrs. Kettlewell, have constituted the relation of trustee and cestui que trust between the plaintiff and the trustees of the fund, or produced the same effect by having estopped her from saying that such is not the case. "Whether bj' the effect of the voluntary assignment of the 10th of Sep- tember, 1839, and the memorandum, the beneficial interest in any part of the fund in question became in equity the property of the plaintiff. Finding the doctrine of the court clearly defined, that where a trust is actually created, the court will act upon it in favor of a volunteer, and that a person may constitute himself a trustee for another, it might perhaps have reasonably been expected, that where the beneficial owner of a fund had done that which unequivocally amounted to a declaration on his part, that an interest in his property should thereby become vested in another, and the person in whom the legal interest was, and also the intended cestui que trust, had notice of that declaration, the court would, as against the partj' making the declaration, have fastened upon it, and held that he had thereby actually created that trust, which, in the case of volunteers, the rule of the court requires and acts upon. It is, however, impossible to say that the reported cases support such a proposition. Without referring to the cases in which parties have ineffectually endeavored to convert an imperfect gift into a trust, the case of Edwards v. Jones shows that the most clear intention to con- fer an interest by a present act may not be sufficient to create a trust in favor of a volunteer, although made by the party in whom the legal interest may be, and communicated by that party to the intended cestui que trust. In that case, the obligee in a bond made an indorsement upon it which purported in terms to be an actual assignment, and at the same time delivered the bond to the intended assignee. The Vice- Chancellor, and afterwards Lord Cottenham, on appeal, held this to^be an imperfect gift, and not a trust. It was decided that the relation of CHAP. I.] MEEK V. KEXTLEWBLL. 47 trustee and cestui que trust was not created by the transaction. I con- sider myself bound by the authority of that case, in the absence of a formal declaration of trust (whatever the effect of such a declaration might be), to hold that the question, whether a trust has been created or not, must be determined upon principles of strict law, and not merely from circumstances which maj"^ fail to place the intention of the parties out of the reach of controversy. The most distinct evidence of inten- tion to pass an interest may not be conclusive. It was said for the plaintiff in this case that, the legal interest being in the executors and trustees under the testator's will, the assignment of 10th September, 1839, under seal, would create a trust, and that the case of a bond, as in Edwards v. Jones, was distinguishable from the present. I confess myself unable to discover the ground for any judi- cial distinction between the cases, where the question is only whether a trust has been actually created. If, in the case now before me, Mrs. KettleweU had assigned her interest in the property for value after her daughter's death, and notice of such assignment had been given to the trustees of the fund, before they had notice of the assignment under which the plaintiff claims, it would have been impossible not to hold that the assignment for value had prevailed over the earlier voluntary assignment. This would have been the case even if the first assign- ment had been for value. But this consequence would not necessarily have followed if the trust was actually created, provided the legal in- terest were not transferred to the assignee for value without notice of the prior trust. For personal property is not within the statute,^ Bill V. Cureton,'^ Jones v. Croucher ; ° ^nd if the trust was once created, the property would belong to the cestui que trust without more, and no pur- chaser with notice of his right could call for the transfer of the legal interest. The cases I have referred to clearly establish this. My con- clusion therefore is, that the relation of trustee and cestui que trust has not been established in this case, unless such an effect is to be attrib- uted to the particular nature of the indenture of 10th September, 1839, as being in form a legal assignment. Now, upon this part of the question, I observe, that the case of Edwards v. Jones is a direct authority that, in such a case, a writing not under seal will not create a trust, however clear the intention of the assignor may be. If, then, the voluntary assignment of the 10th of September, 1839, has given the plaintiff a title to the fund in question, it must be upon the ground that a deed under seal, though voluntary, is binding in equity bj' way of estoppel upon the party who makes it, as between himself and his assignee, although a writing not under seal would not have that effect. A decision founded upon this distinction would give an effect to an instrument under seal, as distinguishable 'i 27Eliz. C.4; 30Eliz. 0. 18, §3. 2 2 Myl. & K. 503. 3 1 Sim. & St. 316. 48 MEEK V. KETTLEWELL. [CHAP. I. from an equally clear intention expressed in a writing not under seal, beyond what I believe a court of equity has ever allowed to it. The case of Colman v. San-el, as reported in Brown, and explained in the subsequent cases, is a direct authority that, for the pui-pose of a case like this, an assignment under seal of that which does not pass at law by the operation of the assignment itself stands upon no better ground than a covenant or agreement to assign. I think the case of HoUoway V. Headington,^ is an authority for the same proposition ; and, unless my experience at the bar entirely misleads me, the learned judge, by whom the latter case was decided, has always held that a voluntary assign- ment in a legal form, unaccompanied by any other acts, is not to be re- garded as effectual to pass an equitable interest. The great experience of that learned judge, as a conveyancer, gives peculiar value to his opinion upon such a subject. The present case is much less favorable to the plaintiff than many of the cases in which claims similar to the present have been rejected ; for, in this case, Mrs. Kettlewell, at the time of the assignment, had nothing but an expectancy in the fund in question (like that of an heir in the lifetime of the ancestor) ; and the cases cited at the bar show that, with respect to such mere expectancies, a deed, unless founded upon value, will not necessarily operate by way of estoppel. It was said that, if, in this case, I should come to the conclusion that the plaintiff has failed to make out a title to the relief he prays, I should, in effect, decide that which was inconsistent with the judgment of Sir "William Grant in Sloane v. Cadogan. If such be the effect of my judgment (I think, however, it is not) , I must shelter myself under the authority of Lord Thurlow in' Colman v. Sarrel ; the repeated appro- bation of that case by Lord Eldon ; the disapprobation of Sloane v. Cadogan manifestly expressed by Sir Edward Sugden in the latest edition of his work ; " the difficulty which in Edwards v. Jones Lord Cot- tenham obviously felt,' in reconciling Sloane v. Cadogan with the other cases upon the authority of which he decided the former cases ; and the opinion of the Vice-Chancellor of England, which I coUect from HoUoway v. Headington, as weU as my belief that that learned judge does not consider a voluntary assignment alone as of any greater effect in equity than a mere agreement. The late case of Dillon v. Coppin " does not impugn the previous cases. In deciding against the plaintiff, I do not mean to express any opinion as to what the effect of a formal declaration of trust, or of the assignment in this case would have been, if Mrs. Kettlewell, at the time of executing it, had had more than a mere expectancy, and if, in 1 8 Sim. 324. 2 Vend. & Pur. vol. iii. p. 297, 10th ed. 8 4 My. & Cr. 647. CHAP. I.] M'pADDEN V. JENKYNS. 49 addition to the facts which here took place, notice of the assignment had been given to the trustees of the fund, and accepted by them. I decide only that a voluntary assignment of a mere expectancy, not com- municated to those in whom the legal interest is, does not create a trust in equity within the principle of the cases relied upon by the plaintiff. Dismissed the bill without costs.^ M'FADDEN v. JENKYNS. In Chanceet, befoke Loed Ltndhuest, C, Jcke 21, 22, Novem- BEE 4, 1842. [Reported in 1 Phillips, 153.] The Loed Chancelloe.^ This was an appeal from a judgment of Vice-Chancellor Wigram, upon a motion for an injunction to stay pro- ceedings at law. The facts stated in support of the motion were shortly these : The testator Thomas Warry had lent a sum of £500 to the defendant Jenkyns, to be returned within a short period. Some time afterwards Warry sent a verbal direction to Jenkyns to hold the £500 in trust for Mrs. M'Fadden. This he assented to, and, upon her applica- tion, paid her a small sum, £10, in respect of this trust. The main question was, whether, assuming the facts to be as stated, this transac- tion was binding upon the estate of Thomas Warry. The executor had brought an action to recover the £500 so lent to Jenkyns. It is obvious that the rights of the parties could not, with reference to this claim, be finally settled in a court of law ; and, if the trust were completed and binding, an injunction ought to be granted. Some points were disposed of by the Vice-Chancellor in this case, which are indeed free from doubt, and appear not to have been con- 1 Affirmed by Lord Lyndhurst, 1 Phill. 342. In Penfold v. Mould, L. E. 4 Eq. 562, SirW. Page Wood, V. C, said, p. 564 : This conclusion is said to be opposed to Meek v. Kettlewell, 1 Hare, 464 ; but Meek v. Kettlewell was founded on the logical consequences of the rule, that a voluntary assignment of an equitable chose in action is a voluntary agreement to pass something infuturo, and that the court will not decree performance of an agreement to assign. Meek v. Kettlewell, 1 Hare, 464, decided that a mere intention to pass an estate cannot be carried ont, unless it be accompanied by an express declaration of trust. That decision has been in effect overraled, and it is now held that any instrument may be a sufficient declaration of trust ; no form being necessary : the only material question being, " Did the grantor, or did he not, mean at once to pass the prop- erty?"— Ed. ^ The statement of facts, being substantially reproduced in the opinion of the court, has been omitted, together with the arguments of counsel. — Ed. VOL. I. 4 50 m'faddbn v. jenkyns. [chap. I. tested in this court, viz. that a declaration by parol is suiHcient to create a trust of personal property ; and that if the testator Thomas "Warry had, in his lifetime, declared himself a trustee of the debt for the plain- tiff, that, in equity, would perfect the gift to the plaintiff as against Thomas Warry and his estate. The distinctions upon this subject are undoubtedly refined, but it does not appear to me that there is any sub- stantial difference between such a case and the present. The testator, in directing Jenkyns to hold the money in trust for the plaintiff, which was assented to and acted upon by Jenkyns, impressed, I think, a trust upon the money which was complete and irrevocable. It was equivalent to a declaration by the testator that the debt was a trust for the plaintiff. The transaction bears no resemblance to an undertaking or agreement to assign. It was in terms a trust, and the aid of the court was not necessary to complete it. Such being the strong inclination of my opinion, and corresponding, as it appears to do, with that of the learned judge in the court below, and with the decision of the Master of the EoUs in the case to which he refers,* I cannot do otherwise upon this motion, and in this stage of the cause, than refuse the application. I must not, however, be understood as pronouncing any conclusive opinion upon the facts of the case. The witness Bartholomew, a pro- fessional gentleman, I believe, swears distinctly and in positive terms as to the direction given by the testator ; but there are some improba- bilities in the case, and it is difficult to say, as the Vice-Chancellor justlj' observes, what may be the result at the hearing of the cause. As the appeal appears to have been encouraged, if not suggested, by the Vice-Chancellor, the motion must be refused without costs.^ 1 Wheatley v. Puit, supra, p. 26. — Ed. ^ In Paterson v. Murphy, 11 Hare, 88, a mortgagee by a certain writing directed his mortgagor to invest £200, part of the mortgage deht, when it became due, in con- sols, and after the decease of the mortgagee to transfer the consols and pay the divi- dends to certain persons named. Before any investment was made, the mortgagee countermanded the instructions, but it was decided by Sir W. P. 'Wood, V. C, that the first writing created an irrevocable trust in favor of the persons therein named. See, to the same efiFect, Vandenberg v. Palmer, 4 K. & J. 204 ; Roberts v. Roberts, 12 Jur. N. s. 971 (reversing s. c. 11 Jur. 992). — Ed. CHAP. I.] KEKEWICH V. MANNING. 61 KEKEWICH V. MANNING. In Chancekt, before Sir James Lewis Knight Bruce and Lord Cranworth, L.JJ., November 6, 15, 1851. [^Reported m 1 De Gex, MacN'aghten, & Gordon, 176.] The Lord Justice Knight Bruce.^ The present case has raised, necessarily or unnecessarily, a question which on several occasions, under different aspects, and in various circumstances, has been brouglit before this court, especially since the time of Lord Hardwicke, — the question, namely, whether an act or intended act of bounty, whether a gift or a promised or intended gift, was in truth a perfect act, a com- pleted gift, resting neither in promise merely, nor merely in unfulfilled intention ; or was incomplete, was imperfect, and rested merely in promise or unfulfilled intention. G-enerally, this question, when arising here, is very material. For as, upon one hand, it is, on legal and equitable principles we appre- hend, clear that a person sui juris, acting freely, fairly, and with suffi- cient knowledge, ought to have and has it in his power to make, in a binding and effectual manner, a voluntary gift of any part of his prop- erty, whether capable or incapable of manual delivery, whether in pos- session or reversionary, and howsoever circumstanced, so, on the other, it is as clear generally, if not universally, that a gratuitously expressed intention, a promise merely voluntary, or to use a familiar phrase, nudum pactum, does not (the matter resting there) bind legally or equi- tably. I have been speaking of transactions without any sealed writ- ing. But though it is true that in cases where such an intention, such a promise, is expressed in a deed, it may bind generally at law as a covenant by reason of the light in which the particular kind of instru- ment called a deed is regarded at law, yet in equity, where at least the covenantor is living, or where specific performance of such a cove- nant is sought, it stands scarcely, or not at all, on a better footing than if it were contained in an instrument unsealed. The rules and the dis- tinction or distinctions between them are, in theory, plain and simple enough, but are sometimes found to be of difficult application practi- cally; nor, considering the position and circumstances, in many in- stances, of property, the administration of which, or the decision of the title to which, belongs to this jurisdiction, ought one to be surprised if he should find here occasionally a case so near the boundary line sepa- rating the two main classes, as to render it no light or easy task to say 1 This judgment containing all that is essential to the understanding of the case, the rest of the report is omitted. — Ed. 52 KEKEWICH V. MANNING. [CHAP, T- to which side of it the case belongs. Such instances have occurred not very unfrequently. To state, however, a simple case : Suppose stock or money to he legally vested in A. as a trustee for B. for life, and, sub- ject to B.'s Ufe-interest, for C. absolutely ; surely it must be competent to C. in B.'s lifetime, with or without the consent of A., to make an effectual gift of C.'s interest to D. by way 9f mere bounty, leaving the legal interest and legal title unchanged and untouched. Surely it would not be consistent with natural equity or with reason or expediency to hold the contrary, C. being sui juris, and acting freely, fairly, and with sufHcient advice and knowledge. If so, can C. do this better or more effectually than by executing an assignment to D. ? It may possibly be thought necessary to the complete vahdity of such a transaction that notice should be given to A. Upon that we do not express an opinion. Suppose the case only varied by the fact that A. and C. are the trus- tees jointly instead of A. being so alone. Does that make any sub- stantial difference as to C.'s power, the mode of making the gift, or the effect of the act, C. not severing nor affecting the legal joint tenancy ? C. would necessarily have notice. Possibly it may be thought material that A. should have notice likewise, but upon that we avoid saying any- thing beyond referring to Meux v. Bell,^ and to Smith v. Smith, men- tioned in Meux v. Bell. It is probably or certainly in some instances the course of this juris- diction to decline acting at the suit of those whom it terms "volun- teers," though within that description a person claiming directly, and merely, under a gratuitous promise, oral or' not under seal, which is nudum pactum, may be thought perhaps hardly to come, for such a per- son has in effect had no promise at all. In effect, no contract has been made with him. But whatever rule there maj' be against " volunteers," it does not apply to the case of one who, in the language of this court, is termed a cestui que trust, claiming against his trustee. For that which is considered by this jurisdiction a trust may certainly be created gratuitously. So that the absence of consideration for its creation is in general absolutely immaterial. To this doctrine Lord Eldon often referred. He did so especially in Ellison v. EUison,^ Pulvertoft v. Pul- vertoft,' and Ux parte Pye ; in which two latter cases his language is sufficient to correct any erroneous notion of his views that some part of his judgment in Ellison v. EUison, narrowly construed, might possibly in some minds create. Ellison V. Ellison is among the valuable and instructive cases, vari- ous in kind and many in number, which we owe to the great learning, great carefulness, and great powers of that most distinguished man. 1 1 Hare, 73. 2 6 Ves. 656. 8 18 Ves. 84. CHAP. I.] KEKEWICH V. MANNING. 63 With reference to the present litigation it is of the utmost importance-. The necessity of sparing time as much as reasonablj' possible, and the recollection that probably every member of this bar is familiar with the report, alone prevent me from reading it now throughout. Let the re- port, however, be considered as read ; and let it be particularly borne in mind that when Mr. Ellison executed the deed of 18th June, 1796, he had an equitable interest, and only an equitable interest, in the prop- erty, wholly personal, but partly movable and partly immovable, which was the subject of the deed ; that the legal interest became afterwards, and probably at his own request, vested in him by means of the inden- ture of 3d July, 1797, which seems not to have taken notice of the deed of 1796, but to have been just such an instrument as would have been proper if the deed of 1796 had never existed ; that the trustee of the property before, and independently of the deed of 1796, was the trustee of the deed of 1796, and the assignor of 1797 ; that whether this trus- tee, who had died before the suit, had notice of the deed of 1796 pre- viously to his execution of the deed of 1797, or perhaps even in Mr. Ellison's lifetime, does not appear clearly, or does not appear at all, and that the deed of 1796 was after Mr. Ellison's death enforced against his residuary legatees ; at the instance, I agree, of plaintiffs, of whom one was Mr. Ellison's executrix. The decision, liowever, seems not to have turned in any degree on that circumstance, but would, it is oiir clear impression, have been the same had the parties to the suit been reversed or had the eldest son been plaintiff alone. The ordering part of the decree which we have had extracted from the registrar's book is thus: "Whereupon, and upon debate of the matter, and hearing the deed of trust dated the 18th June, 1796, read, and what was al- leged by the counsel on both sides, his Lordship doth declare that the trusts of the said deed, bearing date 18th June, 1796, ought to be per- formed and carried into execution, and doth order and decree the same accordingly. And it is further ordered and decreed, that it be referred to Mr. Ord, one of the masters of this court, to appoint a new trustee or trustees of the premises comprised in the said trust-deed, and that the share of the said testator, Nathaniel Ellison, of and in the said collieries, and the stock and effects belonging thereto comprised in the said deed, be assigned to such new trustee or trustees so to be appointed upon the trusts, and for the intents and purposes declared by the said deed con- cerning the same, and such new trustee or trustees is or are to declare the trusts thereof accordingly, and the said master is to settle such as- signment ; and it is ordered that the said master do tax all parties their costs of this suit, and that such costs, when taxed, be paid out of the esftte of the said testator, and any of the parties are to be at liberty to apply to this court, as there shall be occasion." Some years after- wards occurred Pulvertoft v. Pulvertoft and Sx parte Pye. In the 54 KEKE"WICH V. MANNING. [CHAP. I. former of these, Lord Eldon, after saying of Lord Thurlow, "I must take Ms opinion to have been, as I believe it was, that with a mere voluntary settlement this court has nothing to do," used this language : " The distinction is settled, that in the case of a contract merely volun- tary (I do not speak of valuable or meritorious consideration), this court will do nothing ; but if it does not rest in a voluntary agreement, but an actual trust is created, the court does take jurisdiction." And in Bx parte Pye it is said by the same authority: " The other question involves, not only the construction of the French law, and the point whether that has been sufficiently investigated, but further, whether the power of attorne}' amounts here to a declaration of trust. It is clear that this court will not assist a volunteer ; yet if the act is completed, though voluntary, the court will act upon it. It has been decided that, upon an agreement to transfer stock, this court wiU not interpose ; but if the party had declared himself to be the trustee of that stock, it becomes the property of the cestui que trust without more, and the court will act upon it." The case of Cadogan v. Sloane (commonly called Sloane v. Cado- gan) , the nature and effect of which the whole profession knows, from a valuable note in one of Sir Edward Sugden's works, and which we have examined in the registrar's books, is a decision also of great weight. The plaintiff there was the widow and executrix of Mr. "Wil- liam Bromley Cadogan. The defendants were the surviving trustee of the original settlement of 1747, and the executors of Lord Cadogan, of whom that trustee was one. It does not, we believe, appear that in Cadogan v. Sloane any point was, if any could have been, made, as to notice or the absence of notice, or as to the position of the legal title. It is observable, however, that Sir E. Sugden, in arguing the cause, said: "Here Mr. Cadogan did all he could, but that is not enough." Sir E. Sugden was certainly as unlikely as any man could be to omit any view or suggestion possibly favorable to the side on which he was counsel, though I think that I have heard him say that it was the first case that he ever argued in court, and there were other counsel of great consideration upon the same side. Perhaps Cadogan v. Sloane could not have been decided as to the point of gift or trust otherwise than it was, without contravening EUison v. Ellison. In Antrobus v. Smith,^ which was near the time of Cadogan v. Sloane, but we think before it, there were very particular circumstances. The property seems to have been Scotch, and though probably the legal title might have been rightfully and effectually transferred or changed by Mr. Crawford at his pleasure, he seems not to have acted, but seems so to have retained it. Sir W. Grant, who appears to have dismissed the biU on the ground tf at Mr. Crawford was not at his death a trustee for Mr. or Mrs. Antrobus, 1 12 Ves. 39. CHAP. I.] KEKEWIOH V. MANNING. 55 apon the particular facts and in the particular circumstances of the case, did not in our opinion mean to do or to say anything of a nature with which that eminent judge's decision or language in Cadogan v. Sloane was at variance. In our view, Cadogan v. Sloane is entirely consistent with the decision in Antrobus v. Smith ; but, if it is not, we think Cadogan v. Sloane the preferable and more correct decision, — subject only to the question, if any, of notice. In an earlier case, Colman v. Sarrel' (of which the turpis contractus or turpis causa was suflBcient to dispose), the alleged donor, Geoi-ge Davj-, had (as probably Mr. Crawford, in Antrobus v. Smith, had) the power and right of varying and transferring the legal title, but did not do so ; nor did George Davy, we believe, make use of the term " con- fidence " or " trust," or the word "trustee," circumstances to which attention was due, but which perhaps were not of themselves decisive. We do not know certainly that if a man entitled beneficially to the ab- solute interest in stock standing in his name should deliberately and advisedly execute a deed declaring himself a trustee of the stock for certain purposes to take eflect immediately, and should communicate and deliver the deed to the cestuis que frustent, or one of them, this court would decline to enforce the trusts against their author, because he executed the deed, though fairly and advisedly yet voluntarily, that is to say, without consideration. Nor do we know that an instrument may not be eflectual as a declaration of trust, or tantamount to a decla- ration of trust, though it contain not the word " confidence," the word " trust," or the word " trustee." And this we should have said, even if Lord Eldon had not in £Jx parte Pye expressed himself and acted as he did with respect to the French annuity there in question. In the recent case of Edwards v. Jones, however, the subject of the alleged gift, a bond debt, was from its nature incapable of being legally as- signed, incapable of being transferred at law. Notice, certainly, of the assignqient does not appear to have been given to the debtor, though whether that circumstance was material or immaterial the decision seems not to have proceeded upon it, and was against the alleged gift. But Fortescue v. Barnett, decided by Sir John Leach, Wheatley v. Purr,* by Lord Langdale, and Blakeley v. Brady ,^ by Lord Plunkett, have without question followed Cadogan v. Sloane, and, if it could re- quire support, supported it. Having, with my learned brother's concurrence, made these remarks on his behalf as well as my own, I proceed to the particular circum- stances of the case before the court. In the year 1834, a sum of £10,500 three and a half or three and a quarter per cent bank annuities, and a sum of £500 per annum long annuities, were standing in the joint names of Mrs. Elizabeth Kekewich 1 1 Keen, 551. 2 2 Dr. & Walsh, 311. 56 KEKEWICH V. MANNING. [£!HAP. I, and her daughter Miss Susannah Kekewich, in the books of the Bank of England. The property was derived immediately from Mr. Robert Kekewich, the deceased husband of one of the ladies, father of the other. The ladies, under his will, held these sums as trustees for their own benefit ; that is to say, for the benefit of Mrs. E. Kekewich for her life, and subject to her life-interest for the absolute benefit of Miss Kekewich. They had therefore between them as well the whole beneficial as the whole legal interest in the property. In this state of things Miss Keke- wich having attained her majority agreed to marry Sir Henry Maturin Parrington, and in contemplation of that marriage executed a deed of settlement dated the 1st of February, 1834, which was also executed by him. The material parts of this deed were thus : — " Now this indenture witnesseth, that in pursuance and execution of the said agreement, and in consideration of the said intended marriage, she, the said Susannah Kekewich (with the privity, consent, and appro- bation of the said Sir Henry Farrington, her intended husband, testified by his executing these presents) , hath granted, bargained, sold, assigned, transferred, and set over, and by these presents doth grant, bargain, sell, assign, and set over unto the said Charles Kekewich, Samuel Tre- hawke Kekewich, and George Granville Kekewich, their executors, ad- ministrators, and assigns, all that the said capital sum of £10,500 new 3 1 per cent bank annuities, and also all that the said annual sum of £500 long annuities, to which respectively the said Susannah Keke- wich is entitled as aforesaid (subject to such life-interest therein of the said Elizabeth Kekewich as aforesaid), and all and every the funds and securities, or fund and security, upon which the same re- spectively or any part thereof now is, or are, or hereafter shall or may be, placed out or invested, and all dividends, interest, and annual pro- ceeds and other produce of the same respectively, and all the estate, right, title, interest, benefit, property, claim, and demand whatsoever, of her the said Susannah Kekewich, of, in, to, and out of the said funds, stocks, and annuities, and each of them, and the dividends and other produce thereof, and of every part thereof respectively ; to have,, hold, receive, take, and enjoy the said stocks, funds, and annuities, and other the premises hereinbefore assigned or intended so to be, and every part thereof, unto and by them the said Charles Kekewich, Samuel Trehawke Kekewich, and George Granville Kekewich, their executors, administrators, and assigns, subject nevertheless to the life-interest therein respectively of the said Elizabeth Kekewich, as aforesaid, upon the trasts, and to and for the several ends, intents, and purposes here- inafter declared or expressed concerning the same ; and for the more effectually enabling the said Charles Kekewich, Samuel Trehawke CHAP. I.] KEKEWICH V. MANNING. 57 Kekewich, and George Granville Kekewich, and the survivors and sur- vivor of them, and the trustee or trustees of this settlement for the time being, to ask, demand, and receive the said capital, stock, and annuities hereinbefore assigned, and all necessary transfers of the same (from and after the decease of the said Elizabeth Kekewich) , and all interest, dividends, and accumulations thereof, she the said Susannah Kekewich, with the privity and approbation of the said Sir Henry Ma- turin Farrington, her intended husband, testified as aforesaid, hath made, ordained, constituted, and appointed, and by these presents doth absolutely and iiTevocably make, ordain, constitute, and appoint, and the said Sir Henry Maturin Farrington doth also make, ordain, con- stitute, and appoint the said Charles Kekewich, Samuel Trehawke Kekewich, and George Granville Kekewich, and the survivors and sur- vivor of "them, his executors and administrators, and the trustee or trustees of this settlement for the time being, their and each of their true and lawful attorneys and attorney for them and each of them, and in their or either of their names or name, but upon the trusts hereinafter declared, to ask, demand, recover, and receive, by all lawful ways and means whatsoever, from and immediately after the death of the said Elizabeth Kekewich, the said capital, stock, annuities, and premises hereinberore assigned, and all necessary transfers of the same, and aU interest, dividends, proceeds, and produce thereof respectively ; and to give acquittances, releases, and discharges for the same, or any and every part thereof respectively, and upon non-payment or non-transfer of the said capital, funds, dividends, and produce, or any part thereof respectively, in the name or names of the said Sir Henry Maturin Far- rington and Susannah Kekewich or either of them, or of the trustees or trustee of these presents for the time being, but upon the trusts herein- after declared, to commence and prosecute all actions, suits, and pro- ceedings, and use, exercise, and enforce all such or the like powers and remedies for compelling payment and transfer of the said capital, fmids, dividends, and produce res]3ectively as they, the said Susannah Kekewich and Sir Henry Maturin Farrington, or either of them, might or could do or have done if these presents had not been made. And the said Susannah Kekewich doth hereby (with the like privity and approbation of the said Sir Hemy Maturin Farrington, testified as aforesaid) authorize and expressly direct that aU and every the person and persons in whom the said stock and annuities, or any part thereof respectively, shall or may be vested on the decease of the said Elizabeth Kekewich, shall and do forthwith, on the decease of the said Elizabeth Kekewich, transfer and make over the said sum of £10,500 new 3J per cent annuities, and also the said £500 per annum long annuities, and the dividends, interest, and produce thereof, unto the said Charles Keke- wich, Samuel Trehawke Kekewich, and George Granville Kekewich, 58 KEKEWICH V. MANNING. [CHAP. I. and the survivors and survivor of tJiem, or the tnistees or trustee of this settlement for the time being, according to the purport, effect, and true intent and meaning of these presents. And it is hereby expressly agreed and declared, by and between all the said parties hereto, that they, the said Charles Kekewich, Samuel Trehawke Kekewich, and George Granville Kekewich, and their executors, administrators, and assigns, and the trustee or trustees of this settlement for the time being, shall stand possessed of and interested in the said sum of £10,500 new 3^ per cent annuities, and the said annual sum of £500 long annuities (subject nevertheless to the life-estate of the said Elizabeth Kekewich therein as aforesaid), and of and in the produce, interest, dividends, and annual proceeds thereof respectivelj' upon the trusts, and for the ends, intents, and purposes following (that is to say), in trust for the said Susannah Kekewich, her executors, administrators, and assigns, until the said intended marriage, shall take effect and be solemnized." The trusts, after the solemnization of the marriage, were for Susannah Kekewich for her life for her separate use, and after her decease, as to the £500 long annuities, in trust for Sir Henry Farrington for his life, and, after the decease of the survivor, as to the whole of the trust funds, upon such trusts for Elizabeth Bradney (a niece of Susannah Keke- wich) , and the children of the intended marriage, and for the issue of Elizabeth Bradney, and for the issue of the children of the intended marriage, as Susannah Kekewich should appoint, and, in default of appointment, for Elizabeth Bradney and such children equally, as ten- ants in common. The settlement then contained the following proviso : ' ' Provided always, and it is hereby expressly declared by and between the said parties to these presents, that in case there shall be no child or children of the said intended marriage, or, there being such, all of them shall happen to die before his, her, or their share and interest under the pro- visions hereinbefore contained shaU have become vested as aforesaid, then immediately after the decease of the said Susannah Kekewich (notwithstanding all or any of the trusts, powers, provisos and declara- tions hereinbefore expressed and declared) the said capital sum of £10,500 new 3^ per cent annuities, and the said £500 per annum long annuities (subject nevertheless as to the said £500 per annum long an- nuities to the interest therein of the said Sir Henry Maturin Farrington for his life as aforesaid) , and the several di\idends, interest, and an- nual proceeds thereof respectively shall be upon the trusts, and for the ends, intents, and purposes, hereinafter expressed and declared (that is to say), as to, for, and concerning the said £500 long annuities (sub- ject to the interest for life therein of the said Sir Henry Maturin Far- rington as aforesaid) , and also as to the capital sum of £5,000 stock, part of the said capital stock of £10,500 new 3^ per cent annuities, and the CHAP. I.] KEKE-WICH V. MANNING. 69 dividends, interest, and proceeds thereof, the same respectively, imme- diately upon the decease of the said Susannah Kekewich, shall be upon trust for the said Ehzabeth Frances Bradney for her own benefit, and become vested in her on her attaining her age of twenty-one years, but not to be payable or transferable untif after the decease of the said Susannah Kekewich." The residue of the trust funds was in the above events to be held upon such trusts as Susannah Kekewich should by will appoint, and in default of appointment in trust for her next of kin. Soon after the execution of this instrument by Sir Henry Farrington and Miss Kekewich, and the three trustees of it, the intended mar- riage was solemnized. The husband. Sir Henry Farrington, died, however, soon afterwards, and there never was any issue of the marriage. It will have been observed that Mrs. Elizabeth Kekewich was not a party to the deed, but contemporaneously with it, or at least, in Sir Henry Farrington's lifetime, she had notice of it. She survived him several j^ears, and died shortly before the institution of the present suit. Upon her death, the legal title to the bank annuities having remained as I have stated, that legal title became vested, of course, by survivor- ship, in Lady Farrington solely, and so it now continues. But between the deaths of Sir Henry Farrington and Mrs. Elizabeth Kekewich, cer- tain trusts of the bank annuities were for a valuable consideration cre- ated by Lady Farrington, so far as she could, and declared by her, which are at variance with the trusts of the settlement of 1834, and opposed to them. And the question in the cause is, whether against the trusts so created or attempted to be created, after Sir Henry Far- rington's death, whether against the present wishes of Lady Farrington, who now desires to resist and defeat the settlement of 1834, that settle- ment ought to stand and prevail, the legal title, as I have said, having continually and uniformly remained as it was when the settlement of 1834 was made (for the death of Mrs. Elizabeth Kekewich fs as to that nothing) , and the deaUngs of Lady Farrington with the prop- erty having therefore had effect, if at all, only as to the equitable title. The plaintiffs in the cause are the three trustees of the settlement of 1834, with Mr. and Mrs. BaUward. That lady was formerly Miss Brad- ney. She is the person of that name mentioned in the settlement of 1834, and is a granddaughter of Mr. Eobert Kekewich. She has attained majority. The five plaintiffs seek the benefit of the settlement to its full extent ; and I may here at once state that, in the opinion of Lord Cranworth and myself, the suit is constructed at least as favorably and beneficially for each of the plaintiffs as if any one or more of them had been the single plaintiff, or the only plaintiffs, and the others or other 60 KBKBWICH V. MANNING. [CHAP. I. of them had been among the defendants. Lady Farrington is of course one' defendant. The others are the persons claiming under her deal- ings, since Sir Henry Farrington's death, which have been adverted to, and claiming therefore (as she does) against the settlement of 1834. It may be right here to mentidn that it does not appear whether there is or ever was a personal representative of Sir Henry Farrington ; of course, therefore, it cannot be taken that a personal representative of that gentleman is a party to the cause. The defendants resist the plaintiffs' claim, on the ground that, as the defendants insist, the provision, purporting to be made for Mrs. Bail- ward by the deed of 1834, was one merely of a voluntary kind, was nothing more than an intended or a promised gift not perfected, not completed, and ought therefore not to be enforced either at her in- stance, or at that of the trustees of the deed, hy a court of equity. The defendants contend in terms that neither Lady Farrington nor her mother ever became a trustee of the funds for the pm-poses of the settlement of 1834, or at least for the benefit, to any extent or in any event, of Mrs. Bailward. We should perhaps, however, qualify the last remark by sajdng, that though Lady Farrington may possibly die intestate, and though by possibUify her sole next of kin at her death may be Mrs. BaUward (notwithstanding that Lady Farrington, now the widow of a second husband whom she married in 1838, has a child of that marriage living) , we do not recollect that anything was said in the aa-gument specifically as to any part of the contingent trusts provided by the deed to take effect, if there should be no issue of the marriage of 1834, in the event of Lady Farrington's intestacy. It is true, as has been stated, that Mrs. Bailward has attained majority ; but that fact is, as to a portion of those contingent trusts, immaterial. Now, of the two persons in whom the legal title to the funds was at the time of the set- tlement of 1834, and at the time of the marriage that it contemplated, — the two persons in whom the funds were then actually vested at law, and who had then full and absolute power legallyover them, — one was a prin- cipal party to the settlement of 1834, and the other, who, though not a party to it, had contemporaneously or before Sir Henry Farrington's death certainly notice of it, was beneficially interested in the funds, to the extent already mentioned, by a title paramount, and could not therefore have been rightfully or effectually required to make or join in a ti-ansfer of the funds to the trustees of the settlement of 1834, or to affect in any way her legal or equitable title in favor or consequence of that settlement. Why, then, should the gift (if that is the proper term) be considered inchoate only, or incomplete, or as resting merely in promise? What more could have been done that it was within the power or competency of Sir Henry Farrington or Lady Farrington to do or enforce? Was it to depend on the pleasure of the mother whether CHAP. I.] KEKEWICH V. MANNING. 61 the daughter should be able to give away her own property or not? Can a trustee, by saying, " I refuse to accept a trusteeship for the "new claimant to a participation in the beneficial interest whom you, my cestui que trust, have introduced or endeavored to introduce : I object to the claim and oppose it ; I wiU not deal with the legal title, nor shall you," — can a trustee, we repeat, by thus saying and thus acting pre- vent the cestui que trust from making an effectual gift of his interest in the ti-ust property, or any part of it? Surely not. It maybe said, and perhaps truly, that not only did Mrs. E. Kekewich never make or join in a transfer or declare herself a trustee for the purposes of the settlement of 1834, subject or not subject to her life-interest already mentioned, or so subject or not so subject, accept a trusteeship for those purposes, or consent to be a trustee either for the trustees of that settlement in that character or for Mrs. Bailward ; but that no request having any such object was ever made, and that it is un- known and inconjecturable what Mrs. E. Kekewich would have done had any request or application been made to her. This we think immaterial. How the case would have stood if she had not had notice of the settlement in Sir Henry Farrington's lifetime, or if she had not had any beneficial interest in the funds, but had been merely a trustee of them for Lady Farrington, or if before the marriage Lady Farrington had survived her mother, it is altogether unneces- sary for us to pronounce any opinion, and we decline doing so. It has been said that there is not to be found any express declaration, or ex- press direction, or express contract, that the trustees of the funds, namely. Lady Farrington and her mother, should become or hold the funds as trustees of them for the purposes of the settlement of 1834, or for the trustees of it in that character, subject or not subject to Mrs.. E. Kekewich's life-interest. Whether this observation is correct in point of verbal accuracy or not, we think it of no weight, being, as we are, of opinion, upon all the language of the settlement of 1834, taken together, that it is, for every purpose, of equal eflScacy and value with a formal and plain declaration of the most explicit kind on the part of Sir Henry and Lady Farrington, that she and her mother should, subject to the life-interest already mentioned of the latter, stand pos- sessed of the funds in trust for the purposes of that settlement, or for the trustees of it in that character.- We do not attribute essential importance to the danse thus worded : "And the said Susannah Kekewich doth hereby, with the like privity and approbation of the said Sir H. Maturin Farrington (testified as aforesaid) , authorize and expressl}'^ direct that all and every the per- sons and person in whom the said stocks and annuities, or any part thereof, shall or may be vested on the decease of the said Elizabeth Kekewich, shall and do forthwith, on the decease of the said E. Keke- 62 KEKEWICH V. MANNING. [CHAP, I. wich, transfer and make over the said sum of £10,500 new three and a half per cent annuities, and also the said £500 long annuities, and the dividends, interest, and produce thereof, unto the said Charles Keke- wich, Samuel Kekewich, and George Granville Kekewich, and the sur- vivors or survivor of tliem, or the trustees or trustee of this settlement for the time being, according to the purposes, effect, and true intent and meaning of these presents." Certainly, however, that clause as a part of the settlement is not to be disregarded, and must be considered especially unfavorable to a portion of the defendants' argu- ment. We consider the plaintiffs entitled to a decree. But this is on the assumption that we are not precluded by authority from acting on our opinion of what is right. Are we, then, so precluded? The plaintiffs, of course, contend that we are not ; the defendants, that we are. The cases of Ellison v. Ellison,^ Pulvertoft v. Pulvertoft,^ and Ex parte Pye appear to us not merely to contain no doctrine opposed to the plaintiffs, but to be in their favor. Not only do we not question anything said in either of those cases by Lord Eldon, but we are per- suaded that had the present case come before him he would have de- cided it against the defendants. Of Antrobus v. Smith ^ we need say no more than has already been said. As to Wheatley v. Purr * (the report of which has " 1835" for " 1825," and seemingly an incorrect marginal note) , the author of the trust could have transferred the legal title, but appears not to have done so. Lord Langdale nevertheless established the trust. That case, and those of Cadogan v. Sloane, Fortescue v. Barnett, and Blakeley v. Brady,' are in our opinion direct and clear authorities for the plaintiffs. But others cited during the argu- ment are said to be strongly opposed to their title to relief. Whether these authorities, and particularly whether Colman v. Sarrel, Colyear v. Lady Mulgrave,' Ward v. Audland,' HoUoway v. Headington,' Dillon V. Coppin,^ Jeffrys v. Jeffeerys," Godsal v. Webb,i^ James v. Bj-dder,'^ Beatson v. Beatson," Bayley v. Boulcott," Tufnell v. Constable," Gas- kell V. Gaskell," Farquharson v. Cave," Edwards v. Jones, and Meek V. KettleweR, or any one or more of them, ought in our opinion to be considered as contravening or contravened by EUison v. Ellison,^ Cad- ogan V. Sloane, Fortescue v. Barnett, Wheatley v. Puit,* or Blakeley ». Brady,' or as opposed to the plaintiffs' title to relief, we think it un- 1 6 Ves. 656. 2 18 Ves. 84. 8 12 Ves. 39. * 1 Keen, 551. s 2 Dr. & Walsh, 311. « 2 Keen, 81. ' 8 Beav. 201. 8 g Sim. 382. » 4 M. & C. 647. w 1 Cr. & Ph. 138. 11 2 Keen, 99. 12 4 Beav. 600. " 12 Sim. 294. W 4 r„ss_ 345_ ,5 7 ^^_ ^ gjj 739, 16 2Y. &J. 511. "2 Coll. 356. CHAP. I.] KEKEWICH V. MANNING. 63 necessary to say; for assuming that contravention, assuming that opposition, we think nevertheless that Ellison v. Ellison,* Cadogan v. Sloane, Fortescue v, Barnett, Wheatley v. Purr, and Blakeley v. Brady,^ support and are authorities for the plaintiffs' claim ; that we are justi- fied in following those five cases, so far at least as is necessary for the purpose of giving effect to it, circumstanced as it is, and we do so accordingly. In this we are certainly differing from the very able, learned, and careful judge before whom the suit originally came. He, however, in the particular station which judicially he filled with so much advantage to the country, may have considered himself placed in a position with respect to former decisions in which we do not consider ourselves to be. Hitherto it will have been observed that I have treated the plaintiffs as being what are commonly called in equity " volunteers," as persons claiming under a trust created without consideration and by the mere bounty of Lady Farp^ngton. But is the true view of the case so? The plaintiffs, reljing little or not at all on the relationship of Mrs. Bail- ward to Lady Farrington and to her father, insist that the participation of Sir Henry Farrington in the settlement of 1834 precludes any effec- tual contention that Mrs. Bailward is a mere " volunteer." The plain- tiffs say that Sir Henry Farrington stipulated and contracted as much for the provision under which Mr. and Mrs. Bailward claim as for any other part of the provisions of the settlement of 1834 (although she is not proved to have been related to Sir Henrj' Farrington, and although possibly his only acquaintance with her, if any, and his onlj' interest in her, if any, were through his intended wife) ; and that even if, with the consent of Sir Henry Farrington or a personal representative of that gentleman, any part of the trusts or purposes of the deed might have been or could be varied or disappointed, there can without that consent be no such variation, no such disappointment. We think this contention upon the plaintiffs' part not by any means unworthy of attention. How do we know that Sir Henry Farrington did not take a strong interest in the welfare of Mrs. Bailward ? How do we know that he did not believe in the existence of a moral obliga- tion, upon the part of Miss Kekewich, in the circumstances of the case, to make a provision for her niece ? How do we know that he would have concuiTed in any settlement hot making a provision for Mrs. Bail- ward? How do we know that, if he had refused to concur in a settle- ment, the marriage would not have taken place ? How could it be known that he would not survive his wife ? How is it clear that he was indifferent to her state of freedom as to property, after his death, if she should survive him, or to her mariying a second time, or the conse- quences of that step ? 1 6 Ves. 656. 2 2 Dr. & Walsh, 311. 64 PBICB V. PEICE. [chap. I. Were it in our opinion necessary to decide tMs: point, we should probably first deem it prudent to consult carefully various authorities, from Goring v, Nash,! ^^ earlier, down to Davenport v. Bishopp.^ But we do not consider it necessary. We dispose of the cause on the other view of it, — that into which we have more fully entered ; we decide it upon Ellison v. Ellison,' upon Cadogan v. Sloane, and upon principle chiefly, but secondarily also upon Fortescue v. Bar- nett, Wheatley v. Purr, and Blakeley v. Brady,^ in the plaintiffs' favor.® PRICE V. PRICE. In Chancery, BEroitE Sm John Romillt, M. R., Novembee 25, December 2, 1851. [Eeportedin liBeavan, 598.] On the 8th of July, 1849, George Price, the late husband of the plaintiff, being seised in fee-simple of the messuage in question, and in which he and his wife resided, executed a deed-poU in these words : " July 8th, 1849. I hereby certify that I, George Price, colKer, of Whitecroft, in the township of West Dean, and county of Gloucester, for and in consideration of the good- will which I bear towards my wife, Esther Price, also of the same place, have given and granted, and do hereby freely give and grant, to the said Esther Price, in the presence of my uncle, Samuel Price, of the same place, all my land, house, and chattels. And I hereby again declare that I, George Price, have abso- luteljr and of my own accord given and granted the same, without any manner of condition, to the aforesaid Esther Price, and it is her sole and absolute property henceforth and for ever. In witness whereof, I have, this 8th day of July, in the year of our Lord 1849, set my hand and seal." The deed was executed by George Price, and witnessed by William Tanner Sydney and Samuel Price. Upon the execution of the deed, the grantor delivered it into the custody of one of the witnesses attesting the execution. On the 20th of August, 1850, George Price died intestate, nothing further having taken place. 1 3 Atk. 186. 2 2 Y. & C. C. C. 453 ; 1 Ph. 701. 8 6 Ves. 656. ' 2 Dr. & Walsh, 311. 6 Donaldson -o. Donaldson, Kay, 711 ; Gannon v. White, 2 Ir. Eq. 207 ; Stone IJ. Hackett, 12 Gray, 227, accord. Bridge V. Bridge, 16 Beav. 315 (said in Be King, 14 Ch. D. 184, to have been de- cided on a wrong ground), cantra. — Ed. CHAP. I.] PRICE V. PKICE. 65 Esther Price having continued in possession, Emma Price, the heir- ess-at-law of George Price, commenced an action of ejectment against her, and obtained a verdict. Esther Price filed the present bill against Emma Price, the heiress- at-law of George Price, praj'ing to have it declared that the defendant was a trustee of the legal estate in the messuage, for the benefit of the plaintiff; for consequential relief, and for an injunction to restrain execution in the action of ejectment brought by Emma Price, to recover possession of the property, in which the verdict had been obtained. The common injunction had been obtained for want of answer ; and, the answer having been put in, the plaintiff now showed cause against dissolving the injunction, upon the merits confessed by the answer. Mr. Eddis, for the plaintiff. The deed of 1849 did not conve}' the legal interest, but it operated to make the husband a trustee for his wife ; the defendant, who represents him, is equally bound by the trust, and is a trustee for the plaintiff. At law, a husband cannot convey to his wife ; ^ but in equity he may divest himself of his equitable interest, and become a trustee for the separate use of his wife. It was admitted in Walter v. Hodge,'' and appears by the authorities there referi'ed to, that a husband may, in equity, make a gift to his wife, by engaging to hold as a trustee for her separate use ; the only question is, the sufBciency of the evidence to establish the gift. Here the evidence of the deed is distinct, the husband has done all he was capable in law of doing to make the gift effective, and nothing remained to be done. In such a case, the court will hold him to be a trustee. [The Master of the Rolls. If this transaction had been between strangers, would this deed have conveyed the property? "Would the gift have been complete ? *] No ; but the cases of strangers and a husband and wife differ, because by law there can be no conveyance as between husband and wife. Mr. Sandys, for the defendant. This case must proceed on the deed alone, for the answer of the defendant, an infant, contains no admis- sions. The deed is a nullity ; it is an incomplete, defective insti-u- ment ; and the wife, who is a mere volunteer, is not entitled to the assistance of this court, to enforce an instrument legally invalid.^ In this respect, she stands in the same situation as a stranger. The law has now been settled, by a series of cases, that a mere volunteer under an incomijlete gift cannot have the assistance of this coui-t to 1 See Littleton, § 168. " 2 Swan. 92. 8 See 8 & 9 Vict. c. 106, § 2. (1 Oct. 1845.) 4 See Moyse v. Gyles, Free. Ch. 124 ; 2 Vem. 385 ; 1 Eq. Ca. Abr. 293, pi. 2. 66 PRICE V. PKICE. [chap. I. make the gift perfect. If George Price had conveyed the legal es- tate to trustees, in trust for his wife, the thing would have been com- plete. The Master op the Rolls. I wiU consider this case. The Master op the Rolls. It is not disputed that the deed in question was wholly inoperative at law ; but the plaintiff contends that this deed created the husband a trustee for the separate use of his wife, and that the heiress-at-law of the intestate became, on his death and in like manner, a trustee for the plaintiiff. Upon the statement of this case by the counsel for the plaintiff I entertained a strong opinion that the deed did not create anj' trust which this court could enforce ; but, as no cases were then called to my attention, I reserved my judgment, in the apprehension that I might, by acting upon my first impression, do injustice to the plaintiff, and in order that I might be able to examine the later authorities on this subject. This examination has confirmed me in the view I origi- nally entertained, that this deed created no trust that this court can enforce. In this case, it is first to be considered whether the deed would have created a trust enforceable in this court as between strangers ; and, if it would not, whether the circumstance that the transaction is one be- tween husband and wife produces any such relation. As between strangers, I am of opinion that this deed would have been merely inoperative in equitj- as well as at law. The rule of courts of equity with regard to gifts inter vivos is, that they wiU be enforced only when the gift is completed, and when nothing remains to perfect the title of the donee. The cases of trust, however, are not exactly the same ; for if the owner of an estate in fee-simple, having the l^al estate, or one who has stock standing in his name, execute a deed de- claring himself to be a trustee of the estate or of the stock for the benefit of another, and he delivers that instrument to the cestui que trust, and acts upon it, although no conveyance of the legal estate and no transfer of the stock should take place (though I do not know a case precisely in point) , still that would probably be sufficient to create a trust,^ and the observations of Lord Eldon in Ex parte Pye and Du- bost support that doctrine. That case, however, is one of great peculiarity. But, on the other hand, if the transaction purports to be a gift and not a declaration of trust, this court will not convert an imperfect gift into a trust. The case of Edwards v. Jones is distinct on this point. 1 Gray v. Gray, 2 Sim. N. s. 273 ; Steele v. "Waller, 28 Beav. 416 ; "WUlcocks v. Hannyngton, 6 Ir. Ch. 38, accord. See also Drosier v. Brereton, 15 Beav. 221 ; Gee v. Liddell, 35 Beav. 621 ; Craw- ford's Appeal, 61 Pa. 52. — Eb. CHAP. I.] PKICB V. PEICE. 67 The obligee of the bond, in that case, made an indorsement on it in t«rms very similar to the present deed. It was to this effect: "I, Mary Custance, do' hereby assign and transfer the within bond or obligation, and all my right, title, and interest thereto, unto and to the use of my niece, E. E., with full power and authority for the said E. E. to sue for and recover the amount thereof, and all interest now due or hereafter to become due thereon." Both Sir L. Shadwell, originally, and Lord Cottenham, on appeal, held this to be an imperfect gift and not a trust, and that the relation of trustee and cestui que trust was not created. This case was commented upon with approbation, and fol- lowed by Vice-Chancellor Wigram and Lord Lyndhurst, in Meek v. Kettlewell, and I have no doubt but that it correctly states the law relating to these instruments. What is the case here ? The instrument does not profess to be a declaration of trust, but to be a distinct gift. The giver treats it as such, and parts with the deed, which, if he had meant to constitute himself the trustee, he should not have done. It is, in truth, not a declaration of trust, but either a gift of the whole property or nothing. As a gift it is clearly inoperative ; no estate passed, and, in truth, nothing took place, but the execution of the deed, the communication of it to the wife, and the delivery of it to the attesting witness. If I were to decide that this deed would be good as between strangers, I should really be deciding that if a man execute a deed, simply saying, " I hereby give all my estate at A. to another," and nothing further takes place, either to give possession or to transfer the legal estate, this court would compel delivery of the estate. This would, in my opinion, be contrary to the authorities, and I entertain no doubt but that, in such a case, equity would leave the parties to their legal rights, whatever they might be, and would not, in any respect, interfere to assist either party. The observations of Sir J. Wigram are admira- bly accurate and distinct on this head. The next question is this : This was a transaction between husband and wife ; the deed was executed for the benefit of the wife ; it is expressed to be for her sole use. Did this circumstance give to the transaction a different character from that which it would have had if it had been one between strangers ? Was there a good trust created as soon as the deed was executed? In other words, could the wife, during the life of the husband, have maintained a biU in this court, by her next friend, against the husband, to have it declared that he was a trustee of this property, and to have the trusts applied for her separate use ? I am of opinion that no such bill could have been supported. It is true that Lord Thurlow, in Colman v. Sarrel, says : " Whenever you come into equity to raise an interest by way of trust, there must be a valuable consideration, or, at least, what a court of equity calls a meritorious consideration, such 68 WBALE V. OLLIVE. [CHAP. I. as payment of debts, or making a provision for a wife or child." This, if taken literally, is, I think, inaccurately stated, because, if the rela- tion of trustee and cestuis que trust be clearly established, the court will act upon it, although there was no consideration at all ; hut if it be meant by this passage that instruments importing a gift are consid- ered in a different point of view when there is a meritorious considera- tion than where there is none at all, or, in other words, that a voluntary gift by a man to his creditors, or to his wife or child, is to be regarded on different principles from one to a stranger, I am unable to discover on what principle such a proposition can properly rest ; nor can I find it supported by any of the decided cases. On the contrary, the opposite is expressly decided in the case of Jeffreys v. Jeffreys.* In that case, a father; by a voluntary settle- ment, conveyed certain lands to trustees, in trust to pay him an an- nuity for his life, and, after his death, to sell and divide the proceeds amongst his daughters ; and, by the same deed, he covenanted to sur- render certain copyholds to the uses of the settlement, but which he omitted to do. The court executed the trust of the freeholds, that being complete, but dismissed the biU with costs, so far as related to the copyholds. Upon the whole, therefore, I am of opinion that the relation of trus- tee and cestui que trust was not created in this case ; that the transac- tion was an imperfect gift, in regard to which equity will not interfere to assist either side, but wiU. leave the parties as it finds them, and that, consequently, this injunction must be dissolved.^ WEALE V. OLLIVE. In Chancery, before Sir John Eomillt, M. R., June 23, 1853. [Beported in 17 Beavan, 252.] The testator possessed a number of United States bank shares, which were transferable by appearing or by attorney at the bank. Being at Lyons, he in July, 1845, wrote to the defendant, Ollive, his nephew ; and, speaking of the certificates (some of which the defendant had re- ceived from the testator's agents, and the others in a tin box at the Bank 1 Cr. & P. 138. 2 Searle v. Law, 15 Sim. 95 ; Peokham v. Taylor, 31 Beav. 250 ; Lambert ■». Over- ton, 11 W. R. 227 ; 11 L. T. Rep. 503, s. c, accord. Airey v. Hall, 3 Sm. & G. 315 ; Parnell v. Kingston, 3 Sm. & G. 337, coidra.— Ed. CHAP. I.] WEALE V. OLLIVE. 69 of England, and for the latter of which the testator sent his nephew an order to receive), he said : " The whole of the contents of the said box I make a free gift to you, from pure affection, and require no remunera- tion of any kind in return for it." The testator also wrote to Messrs. Barings to transfer the shares to the defendant, " as it was his (the tes- tator's) wish to make him a free gift of the whole amount for his own use, and renounce any claim of expectancy from him for the same from this day, July 16, 1845." Shortly afterwards, a power of attornej' for transferring the shares into the defendant's name was forwarded from England to the testator for his execution, which he accordingly executed arid returned. The shares being very depreciated, the defendant, with the knowledge and appro- val of the testator, did not transfer the shares before the testator's death. The testator died in January, 1847 ; and the defendant, OlUve, now claimed the shares. Mr. a. Palmer and Mr. Gankrien, for the plaintiffs, argued that, as the shares still remained in the testator's name, they now formed part of his personal estate. Mr. Teed and Mr. Schomherg, for the defendant, argued that there had been a valid and effectual gift of the shares made to Ollive, or a sufli- cient declaration of trust in his favor. They cited Ex parte Pj'e, where a testator directed an agent in France to purchase an annuity for his natvural daughter, and the annuity was purchased in the name of the tes- tator, who sent a power of attorney authorizing its transfer, which was not acted on untU after his death. Lord Eldon said that the testator had committed to writing what seemed to him a sufficient declaration, — that he held this part of the estate in trust for the annuitant. Mr. Roupell and Mr. Knight, for other defendants. The Master of the Rolls. I think the case of £Jx parte Fye does not constitute this a declaration of trust. It is clear that the testator did not intend to execute any declaration of trust, but to give the shares to his nephew. He wrote letters, and did everything he could in that way ; but the gift was never completed. In Ex parte Pye, the testator di- rected an annuitj'^ to be purchased for the benefit of a lady, — but she being married and a lunatic, the agent purchased it in the name of the testator, and not of the lady ; and the testator afterwards executed a power of attorney, authorizing its transfer to her. Lord Eldon thought that an annuity having been created expressly for this lady, the testator had by writing constituted a trust fund for her benefit. In this case, if the testator had said that, until the transfer, he would hold the shares for his nephew's benefit, and pay him the dividends, that would have been a sufficient declaration of trust. Here, the intention was not completed : nothing was done to make the gift effectual ; and 70 MILROy V. LOED. [CHAP. I. the case must be governed by the ordinary rule, which is, that the court will not assist a volunteer by making effectual an incomplete gift.' MILEOY V. LOED. In Chanceet, BEroRE Sir J. L. Knight Bruce and Sib G. J. ToENER, L.JJ., June 2, 3, 4, Jult 26, 1862. {^Reported in 4 Be Gex, Fisher, <& Jones, 264.] This was an appeal by the defendant Otto, the personal representa- tive of Medley, from a decree of 'Vice-Chancellor Stuart. The bin was filed by Andrew Row M'Taggart Milroy and Eleanor Rainey, his wife, formerly E. E. Dudgeon, for the purpose of having new trustees appointed of a voluntary settlement made by the late Thomas Medley, and for recovering fifty shares of the Bank of Louisiana, which formed the subject of the settlement, and thirteen North American fire insurance shares, which were purchased with the income of the bank shares, together with the dividends upon all the above-mentioned shares, so far as they had not been paid over to the plaintiffs or one of them ; and the bill also prayed that the defend- ant Samuel Lord, the trustee named in the settlement, might be de- creed to make compensation to the plaintiffs and other the parties entitled under the settlement in respect of his having given up the cer- tificates for the shares to the defendant Otto, the executor of Thomas Medley. The settlement in question was made by a deed-poll, dated the 2d April, 1852, which was as follows : — "Know all men by these presents, that I, Thomas Medley, of the city of New Orleans, on account of the love and affection I have for my niece, Eleanor Rainey Dudgeon, daughter of Daniel Dudgeon, of Eng- land, and in consideration of one dollar to me in hand paid, have con- veyed, transferred, set over, and delivered, and by these presents do convey, transfer, set over, and deliver, unto Samuel Lord, of the city and county of New York, fifty shares of the capital stock of the Bank of Louisiana, now standing in my name in the books of the said bank, together with the certificate or scrip thereof, numbered 3,457, and dated the 6th March, 1852, under the corporate seal of the said bank, signed by W. W. Montgomery, president, and attested by E. M. Davis, cash- 1 DUlon V. Coppin, 4 My. & Cr. 647 ; Beech v. Keep, 18 Beav. 285 ; Lambert v. Orerton, 11 L. T. Eep. 503 ; Moore v. Moore, L. R. 18 Eq. 474 (semble) ; Heaitley u. Nicholson, L. R. 19 Eq. 233 ; Pennington v. Gitting, 2 Gill & J. 208, accord. Kiddill V. Parnell, 3 Sm. & G. 428, contra. Conf. Antrobus v. Smith, 12 Ves. 39. Ed. CHAP. I.] MILROY V. LOED. 71 ier, and the dividends and profits thereof, to have and to hold to the said Samuel Lord and his legal representatives upon the trusts and con- ditions following, to wit, in trust to collect and receive the dividends and profits of the said stock, and apply them to the use and benefit of _ the said Eleanor Eainey Dudgeon, if I be living until the time of the mar- riage of the said Eleanor, and upon the further trust in case I die before the marriage of the said Eleanor, leaving her surviving me, then to trans- fer the said shares of stock, or the proceeds thereof, to the said Eleanor, for her own use and benefit ; and upon the further trust in case the said Eleanor should during my lifetime marry, with my previous consent and approbation, then to apply the said dividends and profits to the use of the said Eleanor for Ufe, and after her death to convey and transfer the said stocks or the proceeds thereof to her issue, if she leave any her surviving, and in default of such issue to convey and transfer the said stock or its proceeds to my next of kin ; and upon the further trust if the said Eleanor shall have died before me without having married, or shall during my lifetime marry without my consent, then to reconvey and retransfer the said stock or its proceeds to me ; and upon the further trust, on my direction at any time during my lifetime, or in his discre- tion after my death, to convert the said stock into money by sale thereof, and after such conversion to invest the proceeds thereof in his discretion in other stocks or upon a bond or mortgage at interest, to be held on the like trusts and subject to the like powers of conversion as the stock hereby transferred, and the dividends and profits thereof; re- serving to myself the power at anytime in writing, by will or otherwise, to direct and compel the said Samuel Lord to transfer the said stock or the proceeds thereof to the said Eleanor, for her own use and benefit absolutely, and also reserving to myself the power, in case of the death of the said Samuel Lord before me, of appointing another or other trustee or trustees in his place and stead. And I, the said Samuel Lord, do consent and agree to accept this transfer ; and I hereby cove- nant and agree to and with the said Thomas Medley and the said Elea- nor Eainey Dudgeon, severally and respectively, and their several and respective legal representatives, that I will observe, perform, fulfil, and keep the trusts and conditions hereinbefore declared." This deed-poU was under the hand and seal both of Thomas Medley and of the defendant, Samuel Lord. At the time of the execution of the deed-poll, Samuel Lord held a power of attorney from Thomas Med- ley, whereby Medley empowered him " to take possession, charge, and control of all his goods, chattels, books of account, evidences of debt, choses in action, and claims of every kind, to buy and to sell and to transfer the stock of any incorporated company now belonging to him, or which might thereafter belong to him, and to collect and receive the dividends," and gave him general authority to act on his behalf. Soon 72 MILEOY V. LORD. [CHAP. I. after the execution of the deed-poll, Thomas Medley delivered to the defendant Lord the scrip for one hundred and sixty-two shares which he then held in the Bank of Louisiana, including the scrip for the fifty shares comprised in the deed of settlement. About the same time. Medley gave to the defendant Lord a further power of attorney, author- izing him to receive the dividends then due and payable, and which might thereafter become due and payable on all or any shares of the capital stock of the Bank of Louisiana then standing, or which might thereafter be placed in his name in the books of the said Bank of Louisiana, and to give receipts, discharges, and acquittances for the same, with power to the said attorney to substitute an attorney or at- torneys under him for all or any of the purposes aforesaid, and to do all lawful acts requisite for affecting the premises. According to the constitution of the Bank of Louisiana, the shares in the bank were transferable in the books of the company, and all trans- fers were to be made by the proprietor or his lawful attorney, the cer- tificates of stock being surrendered at the time the transfer was made ; but it was to be collected from the evidence in the cause that, where a transfer was made by power of attornej^, the power of attorney had to be left with the bank. No transfer was ever made into the name of the defendant Lord of the fifty shares comprised in the settlement ; but the dividends upon the shares, appeared to have been received by Lord, and remitted by him to the plaintiff Mrs. Milroy, then Eleanor Rainey Dudgeon, sometimes directly and sometimes thi'ough the medium of the settlor, by whom they were paid over to her, except as to one divi- dend, which appeared not to have been so paid over. The thirteen North American fire insurance shares were purchased, as it appeared, on the suggestion of Thomas Medley, out of the dividends of the bank shares and a bonus declared by the bank upon their shares ; and the dividends upon the fire insurance shares were, as it appeared, paid to Mrs. Milroy, then Eleanor Rainey Dudgeon, along with the dividends upon the bank shares ; but these insurance shares were purchased in the name of Thomas Medley. In the year 1855, the plaintiffs intermarried, with the consent and approbation of Thomas Medley. In the month of November in that year Thomas Medley died, having by his will bequeathed to the plain- tiff E. R. MUroy a legacy of £4,000, and appointed the defendant J. A. Otto to be his executor, who duly proved his will. After his death, the defendant Lord deUvered to Otto the certificates both for the fifty Louisiana Bank shares and for the thirteen North American fire insurance shares. The plaintiff E. R. Miboy was the niece of Thomas Medley. She was educated at his expense, and lived with him after she was grown up until the summer of the year 1852, in the spring of which year he married the daughter of the defendant Samuel Lord. CHAP. I.] MILEOY V. LORD. 73 The settlement which the bill sought to enforce was made in conse- quence of that marriage and of the plaintiff E. R. MUroj' then ceasing to live with the settlor, and as a provision for her ; and she was told by Thomas Medley that he had made the settlement on that account and for that purpose. The Vice-Chancellor Stuart, at the hearing of the cause, and of a petition presented in it and under the tnistee act, made a decree de- claring that the fifty shares in the Bank of Louisiana were bound by the trusts declared by the deed-poll of the 2d April, 1852, and that the thirteen shares in the North American Fire Insurance Company, in the bill mentioned, belonged to the plaintiffs in right of the plaintiff Elea- nor Eainey MUroy, the same having been purchased before her mar- riage with moneys belonging to her. The decree proceeded to appoint a new trustee, and to order the defendant Otto, an executor of the will of the settlor, to transfer the fifty shares in the Bank of Louisiana into the joint names of Lord and the new trustee, to be held by them upon the trusts of the said deed-poll, and also to transfer the thirteen shares in the North American Fire Insurance Company into the name of the plaintiff Andrew Row M'Taggart Milroy, for his own use. It was fur- ther ordered that the amount of the dividends accrued since the decease of Medley upon the fifty shares in the Bank of Louisiana, up to the time of the transfer, should be paid by Otto to Lord and the new trustee, to be also held by them upon the trusts of the deed-poll ; and that the amount of the dividends accrued since the decease of Medley upon the thirteen shares should be paid to the plaintiff" Andrew Row M'Tag- gart Milroy, for his own use. The costs of the suit were ordered out of Medley's estate. The defendant Otto appealed from this decree. Mr. Oraig and Mr. Charles Hall, for the plaintiffs, in support of the decree. The settlement must be regulated, not by the law of Louisi- ana, but by that of New York, where it was made, and was to be car- ried into execution. Addison on Contracts ; ^ Guepratte v. Young.^ The law of New York is the same as our own on this subject. Story, Eq. Jur.* What took place amounted to a good declaration of trust. AU was done that the settlor could do. Mc parte Pye ; Fortes- cue V. Barnett ; Edwards v. Jones ; Blakely v. Brady ; * M'Fadden v. Jenkyns ; Parnell v. Kingston ; ' Kekewich v. Manning. If not, we have a remedy against the settlor's assets ; for he was bound not to do anything in derogation of his own deed. Wilhamson v. Codrington ; * Deering v. Farrington ; ' Ward v. Audland ; ' Aulton v. Atkins"; ' Par- 1 Page 1034. 2 4 De G. & Sm. 217, 228. « Sects. 433, 706a, 787, 793a, 973, 987, 1040, 6th ed. « 2 Dru. & "Walsh, 311. « 3 Sm. & Giff. 337. 6 1 Ves. 511. ' 6 Tin. Ah. 380, pi. 20, Gov. C. 8 16 M. & W. 862. 9 18 0. B. 249. 74 MILROY V. LORD. [CHAP. I. nell V. Hingston ; ^ Dillon v. Coppin ; " Saltern v. Melhuish.^ The set- tlor must have supposed that Lord would transfer the shares under the power of attorney ; and this is enough to constitute a trust. It was a breach of trust to deliver up the certificates of the shares ; and we are entitled, at all events, to relief as to them. Barton v. Gainer.^ Mr. Cotton {Mr. Bacon with him) , for the appellant. There is noth- ing but an incomplete gift, which, being voluntary, the court will not complete. There was neither effectual assignment nor declaration of trust. In Kekewich v. Manning, Blakely v. Brady, and Fortescue v. Barnett, the assignments were held complete, because the settlor had made them as complete as he could ; here the settlor might have trans- ferred the shares. An incomplete assignment is not a declaration of trust ; and the delivery of the certificates does not help the ease. Dil- lon V. Coppin ; ^ Searle v. Law ; ^ Bridge v. Bridge ; ' Woodford v. Charnley.' The cases of Airey v. Hall ^ and Parnell v. Hingston are against the current of authority. The remedy against the assets is not open on these pleadings, if there were anj', but there is not ; for there is no covenant, as there was in the cases where such a remedy has been given. What the plaintiff's ask is, that the court should imply a cove- nant for further assurance. Mr. Malins and Mr. Kekewich, for Lord. Mr. Craiff, in reply, referred to Donaldson v. Donaldson.'" Judgment reserved. July 26. The Loed Justice Knight Bruce. This is an appeal by the defendant Mr. Otto, the personal representative of Mr. Medley (the testator in the cause) , against the decree in this suit pronounced by one of the learned vice-chancellors, on the 8th of March last. — a decree declaring and establishing against Mr. Otto, as Mr. Medley's executor, a title in the plaintiffs to an interest in fifty shares in the Bank of Louisiana, and to an interest also in thirteen shares in the North American Fire Insurance Company. [His Lordship here read the ma- terial parts of the decree.] It is insisted by Mr. Otto that neither of the plaintiffs had or has any interest recognizable by a court of justice in either set of shares or any part of them. The state of circum- stances in which we find one set of shares is not exactly the same as that in which the other is placed. First, then, with regard to the bank shares. They ai-e claimed by the plaintiffs, under and by force of the instrument of the 2d of AprU, 1852, 1 3 Sm. & Gifr. 337, 345. 2 4 Myl. & Cr. 647, » 1 Amb. 247. « 3 H. & N. 387. 4Myl. &Cr.647.669. " 15 Sim. 95. 7 16 Beav. 315. 8 33 Beay. 96. ° 3 Sm. & Giff. 315. 10 gay, 711. 671. CHAP. I.] MILROY V. LOED. 75 executed by Mr. Medley and the defendant Mr. Lord, which, set forth in the bill, is mentioned also in the decree. They stood in Mr. Med- ley's name before and at the time of his execution of that instrument, and continued so to stand until his death. He was during the wJiole time, and when he died, the legal proprietor of them, and, unless so far, if at all, as the beneficial title was aflTected by that instrument, the absolute proprietor of them beneficially likewise. He might, however, have affected the legal title. It was in his power to make a transfer of the shares so as to confer the legal proprietorship on another person or other persons. But, as I have said, no such thing was done. The in- strument, however, of the 2d April, 1852, was not founded on valua- ble consideration. It was merely gratuitous and voluntary ; and the principal question for our decision is, whether, in such a state of things, it is the duty of this court to enforce it specifically against Mr. Med- ley's executor, either on the ground that by it Mr. Medley constituted himself a trustee of the shares for the purposes mentioned concerning them in the instrument, or on the ground of contract or otherwise. It seems plain enough that the law of Louisiana, if applicable to the case, does not assist the plaintifis, and that the laws and rules governing the courts at New York, where the instrument appears to have been exe- cuted, are, for any purpose now material, substantially the same as the laws and rules governing the courts here. I am of opinion that, ac- cording to our law, the instrument of the 2d April, 1852, was not suffi- cient to constitute, and did not constitute, Mr. Medley a trustee of the bank shares (and, in sajdng this, I do not forget the design appearing on the face of it, that Mr. Lord should become a trustee under it for the purposes which it mentions) ; nor do I think that, voluntary as the in- strument was, it contained a contract specifically enforceable against Mr. Medley or his estate. The transaction or intended transaction left by him imperfect and incomplete he might have perfected and com- pleted by a transfer. And, thinking the plaintifl's' case not helped by any of the circumstances stated respectively in the two answers of Mr. Lord or by any of the authorities mentioned in the report by Messrs. De Gex, Macnaghten, & Gordon, of the cause of Kekewich v. Man- ning (decided some years ago in this court), or by that decision, I find mj'self, though almost or altogether with regret, unable to agree with the decree as to the bank shares ; and I believe my learned brother's view to be, in effect so far, the same as mine. But though not satisfied that the instrument, if a deed, contained a covenant on Mr. Medley's part, I do not wish to prevent or prejudice any action which the plain- tiffs may wish to bring in their own names or the name of Mr. Lord against Mr. Otto. Then, with respect to the fire insurance shares. As to these I have some doubt, — a doubt immaterial, because, as it has been very agreeable to me to find, my learned brother is, as to them, of 76 MILKOY V. LOKD. [CHAP. I. opinion with the decree in favor of the plaintiffs. That being so, I have not the least objection to the addition in the plaintiffs' favor as to the certificates of the fire insurance shares, which my learned brother pro- poses, and will state. The circumstances are such that we need not, I think, alter, and I am not for altering, what the decree has done as to the costs of the suit, although, in the opinion of both of us, the plaintiffs' case partiaUy faUs, and though I doubt, as I have said, with regard to the fire insurance shares. And I am for dealing with the costs of the appeal in the same way. The Lord Justice Tdbner, after stating the facts of the case nearly in the same terms as above, proceeded as follows : — Under the circumstances of this case, it would be difficult not to feel a strong disposition to give effect to this settlement to the fullest ex- tent, and certainly 1 have spared no pains to find the means of doing so, consistently with what I apprehend to be the law of the court ; but, after fuU and anxious consideration, I find myself unable to do so. 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- thing wliich, according to the nature of the property comprised in the set- tlement, was necessary to be done in order to transfer the property, and render the settlement binding upon him. He may, of course, do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual ; and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds in trust for those pur- poses ; and, if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol ; but, in order to render the settlement binding, one or other of these modes must, as I understand the law of this court, be resorted to, for there is no equity in this court to perfect an imperfect gift. The cases, I think, go further to this ex- tent that, if the settlement is intended to be effectuated by one of the modes to which I have referred, the court will not give effect to it by appljing another of those modes. If it is intended to take effect by transfer, the court will not hold the intended transfer to operate as a declaration of trust; for then every imperfect instrument would be made effectual by being converted into a perfect trust. These are the principles by which, as I conceive, this case must be tried. Applying, then, these principles to the case, there is not here any transfer either of the one class of shares or of the other to the objects of the settlement ; and the question, therefore, must be, whether a vahd and effectual tmst in favor of those objects was created in the defend- ant Samuel Lord, or settlor himself, as to all or any of these shares. Now, it is plain that it was not the purpose of this settlement, or the intention of the settlor, to constitute himself a trustee of the bank CHAP. I.] MILEOY V. LOED. 77 shares. The intention was that the trust should be vested in the de- fendant Samuel Lord ; and I think, therefore, that we should not be justified in holding that, by the settlement or by any parol declaration made by the settlor, he himself became a trustee of these shares for the purposes of the settlement. By doing so, we should be converting the settlement or the parol declaration to a purpose wholly different from that which was intended to be effected by it, and, as I have said, creating a perfect trust out of an imperfect transaction. His Honor the Vice-Chancellor seems to have considered that the case Ex parte Pye warranted the conclusion that the settlor himself became a trustee by virtue of the power of attorney which he had given to the defendant Samuel Lord ; but in Ex parte Pye the power of attorney was given by the settlor for the express purpose of enabling the annuity to be transferred to the object of the settlor's bounty. The settlor had, it appears, alreadj' directed the annuity to be purchased for the benefit of that object, and had even paid over the money for the purpose of its being applied to the purchase of the annuity ; and then, when the annu- ity was, from the necessity of the case, purchased in the settlor's name, all that possibly could be wanted was to show that the original purpose was not changed, and that the annuity, though purchased in the settlor's name, was still intended for the benefit of the same object of the set- tlor's bounty ; and the power of attorney proved, beyond all doubt, that this was the case. These facts appear to me wholly to distinguish this case from the case of Ex parte' Vye. In my opinion, therefore, this decree cannot be supported upon the authority of Ex parte Pye ; and there does not appear to me to be any sufficient ground to warrant us in holding that the settlor himself became a trustee of these bank shares for the purposes of this settlement. The more difficult question is, whether the defendant Samuel Lord did not become a trustee of these shares. Upon this question I have felt considerable doubt ; but, in the result, I have come to the conclusion that no perfect trust was ever created in him. The shares, it is clear, were never legally vested in him ; and the only ground on which he can be held to have become a trustee of them is, that he held a power of attorney under which he might have transferred them into his own name ; but he held that power of attorney as the agent of the settlor ; and if he had been sued by the plaintiffs as trustee of the settlement for an account under the trust, and to compel him to transfer the shares into his own name as trustee, I think he might well have said : These shares are not vested in me ; I have no power over them, except as the agent of the settlor ; and without his express directions I cannot be justified in making the proposed transfer, in converting an intended into an actual settlement. A court of equity could not, I think, decree the agent of the settlor to make the transfer, unless it could decree the set- , 78 MILROY V. LOED. [CHAP; I. tlor himself to do so ; and it is plain that no such decree could have been made against the settlor. In my opinion, therefore, this decree cannot be maintained as to the fifty Louisiana Bank shares. As to the thirteen North American fire insurance shares, the case seems to me to stand upon a different footing. Although the plaintiffs' case fails as to the capital of the bank shares, there can, I think, be no doubt that the settlor made a perfect gift to Mrs. Mikoy, then Miss Dud- geon, of the dividends upon these shares, so far as they were handed over or treated by him as belonging to her ; and these insurance shares were purchased with dividends which were so handed over or treated. It seems to me, upon the evidence, that these shares were purchased with the money of Mrs. Milroy, then Miss Dudgeon, and that the purchase having been made in Thomas Medley's name, there would be a result- ing trust for Miss Dudgeon. I think, therefore, that as to these shares the decree is right, — the value of the shares being, as I presume, un- der £200, so that the case does not fall within the ordinary rule of the court as to the wife's equity for a settlement. The case being thus disposed of as to the title to the shares, I see no ground for the claim to compensation raised by this bill. The certifi- cates for the shares would follow the legal title, and as to the fifty bank shares would therefore belong to the defendant J. A. Otto, and as to the thirteen insurance shares the plaintiffs recovering those shares must recover the certificates also ; but this not being provided for by the de- cree, a direction for the delivery of these certificates should, I think, be added. Upon the hearing of this appeal, it was contended for the plaintifls that, so far as they might fail in recovering any of the shares in ques- tion, they were entitled to recover the value of them against the estate of Thomas Medley. I am not sure that this point can properly be con- sidered to be open upon these pleadings ; but, whether it be so or not, I agree with my learned brother that the plaintiffs' claim in this respect cannot be maintained. There is no express covenant in the settlement ; and whatever might be done as to implying a covenant to do no act in derogation of the settlement, it would, I think, be going too far to im- ply a covenant to perfect it. If there be a breach of any implied cove- nant by the delivery of the certificates to the defendant J. A. Otto, the plaintiffs' remedy sounds in damages, and they may pursue that remedy at law ; for which purpose, if the plaintiffs desire it, there may be in- serted in the decree a direction that they be at liberty to use the name of the defendant Lord, —of course upon the usual terms of indemnify- ing him^ I have not adverted to the point which was raised as to this case bemg governed by the Spanish law ; for I think that, if that law was more favorable to the plaintiffs, the onus was upon them to allege and prove it. As to the costs of the suit, my learned brother being of CHAP. I.] GILBEBT V. OVERTON. 79 opinion that they ought to be paid out of the settlor's estate, I do not dissent. The decree must be altered accordingly, as to the several points to which I have referred. GILBERTS. OVERTON. In Chancery, before Sir William Page Wood, V. C, JuLT 1, 2, 5, 1864. [Eeported in 2 Hemmi'ng & Miller, 110.] Vice-Chancelloe Sir W. Page Wood.^ The biU in this case was filed by the children of Henry Gilbert, who claim a fifth share in cer- tain leaseholds under a voluntary settlement executed in 1789. It is not disputed that the plaintiffs are entitled to the relief they ask, unless the settlement is to be regarded as an incomplete voluntary settlement which this court will not carry into effect. The origin of the title was this : The settlor held an agreement for a lease for ninety-nine years. As to the terms of this instrument I have no information except what is contained in the recitals in a sub- sequent conveyance and in the Master's report in a former suit. Whether, under the terms of the agreement and the circumstances at the time, the settlor was entitled to claim an immediate lease at the date of the voluntary settlement does not appear. In fact, he did not obtain a lease before executing the settlement. By the terms of that settlement the settlor assigned to trustees the said plot of land and all his interest therein, to hold for the residue of the term of ninety-nine years, by the agreement agreed, or intended to be granted, upon trusts to pay the rents and perform the covenants, and then for the settlor for life with limitations over, under which the plaintiffs would be entitled to the share they claim. Shortly after executing the settlement, the settlor took a conveyance to himself of the legal estate, and, after having done so, made his will in September, 1803, by which he recited the settlement, and, purport- ing to act under a power in the settlement, gave the property, as to five of the houses, to his son Henry, and as to the remainder, to his son William. This was invalid as an appointment, because the power was not exclusive, and the testator had other children. , After the death of the testator, a bill was filed by Henry and Wil- liam against the executors. There were grandchildren of the testator then living, but they were not parties to the suit. The other children, who were defendants, asserted that the appointment to Henry and 1 All that is material to this understanding of this case being contained in the judg- ment of the court, the rest of the report is omitted. — Ed. 80 GILBERT V. OVEKTON. [CHAP. I, William was invalid, and a reference was made to the Master, who reported against the validity of the appointment, and found that the property was subject to the settlement, and that the testator had made no disposition under the power. The decree founded on this report recited that the defendants were put to their election, and had elected to give up their interests under the settlement (those being life interests not affecting the claims of grandchildren) , and to take under the will. Henry died in 1863, and this bill is filed by his children. In the mean time Hemy became bankrupt, and his assignees put up for sale his life-interest, and sold it as such ; but, of course, the purchaser took a conveyance of all that the assignees could pass to him. The convey- ance recites the settlement, the lease, the wUl, and the election of the children, and that the assignees had sold such interest as they had, and conveys all their interest accordingly. Under this deed the present defendant claims. It is now insisted on behalf of the defendant that the voluntary set- tlement is invalid, on the ground that no legal interest passed, and for this contention the authority of Bridge v. Bridge ' is rehed on. It appears to me that there are several reasons for upholding the settlement. In the first place, it contains a declaration of trust, and that is all that is wanted to make any settlement efl'ectual. The set- tlor conveys his equitable interest, and directs the trustees to hold it upon the trusts thereby declared. Then he goes on to declare upon what trusts they are to hold. It is an exploded idea that in a volun- tary instrument such a declaration of trust is insuflScient. Such a declaration as I find here is just as good as if the testator had declared that he himself would stand possessed upon these trusts. In the second place, there is another consideration which takes the case out of the scope of Bridge v. Bridge. In the inception of the ti-ansaction there is nothing to show that the settlor had the power of obtaining a lease before the time when he did so after the execution of the settlement. All that appears is, that no lease had been granted at the date of the settlement, and the court will take judicial notice of the fact that leases are not ordinarily granted under building agreements immediately, but are made dependent on the fulfilment of certain con- ditions. There is, therefore, nothing to show that the settlor did not, by the settlement, do all that it was in his power to do to pass the property. If this were not sufficient, it would be impossible to make a voluntary settlement of property of this description. The whole docti-ine of the court declining to assist voluntary settle- ments arose, in the first instance, in a great measure, out of two classes of cases : one, where the settlor retained possession and was considered to have reserved a hcus pcenitentice ; and the other, where a settlor had 1 16 Beav. 315. CHAP. I.] GILBEBT V. OVEETON. 81 made an incomplete conveyance, and the volunteers came here to have it perfected. In this last class of cases, the court said that volunteers had no equity to claim such assistance against the legal estate. At the same time, where trusts had been actually executed, and adminis- tration only was asked, the court always gave its assistance just as if the settlor had declared himself a trustee. On both the grounds I have stated I am of opinion that in this par-, ticular case the trustees were entitled to have the settlement carried into execution, and could have obtained a lease in a suit for specific performance against the person bound by the agreement. i"he circum- stance that the settlor afterwards got in the legal estate did not dis- place the trusts which had been once effectually created, and" such a circumstance was held by Lord Eldon, in Ellison v. Ellison, not to be a bar to claims which had once arisen. To this I may add, that, in this case, there is nothing to show that the settlor did not do every- thing which it was possible for him to do in order to obtain a binding trust. I do not wish to say more as to Bridge v. Bridge than this : that the points there dealt with will require much consideration. A man who convej's his equitable interest may well be considered to do all that can be required, and it would be a great extension of the estabhshed doc- trine on these subjects to hold that, if a legal estate is discovered, per- haps many years afterwards, to have been outstanding at the date of a voluntary settlement, the settlement itself is to be deprived of effect. Where a settlor by a voluntary instrument conveys all his interest, it may well be held that, if that interest proves to be merelj^ equitable, the assignee becomes entitled to claim a convej^ance of the legal estate from the person in whom it may be vested. There is, further, in this case, the strong point that not only is the settlement recognized by the testator in his wUl, but that his son Henry accepted the estate under the settlement and the will. In the for- mer suit, the court declared the property subject to the settlement in the presence of those in whom the legal estate was vested ; it put other pai-ties to their election in respect of it, and from that time to the pi'esent, a period of more than fifty years, ever3'body treated it as a valid settlement. I am of opinion, therefore, that the plaintiffs are entitled to have the trusts carried into effect, and to an account of rents from the death of Henry.^ Declare plaintiffs entitled to one-fifth of the premises from the death of Henry Gilbert. Account of rents in case parties differ. Plaintiffs to have a vesting order as to one-fifth at their own expense. Defend- ants to pay costs of suit. 1 Bridge V. Bridge, 16 Beav. 315 (said in Be King, 14 Ch. D. 184, to have been de- cided on a wrong ground), contra. — Ed. VflT.. T. fi 32 IN THE MATTER OP WAY'S TKUSTS. [CHAP. I. IN THE MATTER OF WAY'S TRUSTS. In Chancery, before Sir G. J. Turner -and Sir J. L. Knight Bruce, L.JJ., November 18, 1864. [SepoHed in 2De Gex, Jones, tfc SmUh, 365.] This was an appeal by the Attorney-General from an order made by the Master of the Rolls, who decided that a voluntary settlement of the 11th of May, 1852, was ineffectual. At the time of the date of the voluntary settlement a sum of £2,500 old South Sea annuities (afterwards converted into reduced £3 per cent annuities) was standing in the names of the trustees of a deed dated the 18th of November, 1820, upon ti-ust for Susannah Mary "Way during her life, and after her death (subject to certain life-interests which determined in her lifetime) upon trust for Dame Catherine Chol- meley absolutely. By a voluntary settlement dated the 11th May, 1852, and expressed to be made between Lady Cholmeley of the one part, and certain per- sons therein named as trustees of the other part, Lady Cholmeley as- signed the fund to these trustees upon certain trusts, for the benefit of her two sisters, the daughters of George Way, during their lives, and after the death of the survivor of such daughters, upon trust to assign the fund to the owner for the time being of the mansion-house called Denham Place, in the county of Bucks, and to the rector for the time being of the church of Denham for certain charitable purposes. This settlement, which contained no power of revocation, was for- mally signed, sealed, and delivered by Ladj' Cholmeley in the presence of, and her execution thereof was attested by, her then solicitor, Mr. Thomas Sismey, who had prepared the deed by her instructions, and had on a previous occasion read over the draft to her, and explained its contents to her. Lady Cholmeley kept the deed in her own posses- sion, and the fact of its execution was never communicated to the trus- tees of the deed of 1820, or to the trustees nominated in the voluntary settlement, or to any person beneficially interested under that settle- ment, or, so far as appeared, to any other person. On the 15th of April, 1863, Susannah Mary Way, the surviving ten- ant for life, died. Thereupon Mr. Sismey wrote to Lady Cholmeley to inform her that the fund might then be transferred to the trustees of the settlement of 1852, and to inquire whether those trustees were still living. In answer. Lady Cholmeley, on the 12th of May, 1863, wrote to Mr. Sismey as follows : — "The deed of 1852 I destroyed, having made a codicil to my will CHAP. I,} IN THK MATTER OF WAX's TRUSTS. 83 concerning the £2,500 you mention ; I believe the trastees are still liv- ing, but have to lament mj sisters, Miss Anne and Charlotte Wa^^ who are both dead." In reply, Mr. Sismey wrote to Lady Cholmeley as follows : — " I fear the destruction of the deed of 1852 does not render it inop- erative, and that it must be treated as still in existence ; and, if I am correct in the view I take of the matter, the trust fund must be paid over to the trustees of that deed." Lady Cholmeley, on the 29th of May, 1863, rejoined as follows : — " I regret having delayed replying to your note of the 13th instant. The only difference I have made between the deed of 1852 and the cod- icil to my will is, that the latter leaves the stock between all the chil- dren of the late Eev. George "Way and Mrs. George Way. There were three sons, the eldest has departed this life, leaving a son and two little daughters. I should be glad to know the view you take with regard to dealing with the £2,500, as I do not seem to understand it." Nothing further passed between Lady Cholmelej' and Mr. Sismey on the subject of the voluntary settlement, until her death, which took place on the 2d of February, 1864. She left a codicil, dated the 2d of March, 1857, by which she specifically bequeathed the fund in question to all the children of her late brother George Way who should be living at her decease, to be divided between them in equal shares. In consequence of the doubt whether the fund passed under the vol- untary settlement or under the codicil, the trustees of the deed of 1820 transferred the fund into court under the Trastee ReUef Act. The children of George Way who were living at the time of Lady Chol- meley's death petitioned for transfer of the fund to them ; and the Master of the Rolls made an order accordingly. From this order the Attorney-General, as representing the charitable gifts under the settle- ment of 1852, appealed. 77ie Attorney- General (Sir H. Palmer) and Mr. T. H. Terrell, in sup- port of the appeal. The judgment of the Master of the Rolls pro- ceeded on the ground that no notice of the assignment was given to the trustees. We submit that notice is not necessary to make an as- signment complete, but only to exclude the title of third parties. The question as to the validity of a voluntary assignment of a chose in action has been put upon this : Has the assignor done all he could to make a complete assignment? We say that here the assignor has done all that was necessary on her part : the giving of notice is an act usually done by the assignee, and seldom or never by the assignor ; and a notice given at any time before a fund is dealt with is sufficient, unless some other assignee has given prior notice. Loveridge v. Cooper.-' 1 3 Euss. 30, 58. 84 IN THE MATTEK OF WAY'S TEUSTS. [CHAP. I. The present case is governed by Sloane v. Cadogan and Fortescue v. Bar- nett. Meek v. Kettlewell, if at variance with those cases, is overruled by Kekewich v. Manning, which is supported by Blakeley v. Brady ; ^ it may, however, be distinguished on the ground that the subject-matter there was a possibility, which is not the subject of assignment but only of contract, so that a valuable consideration is necessary to the validity of any dealing with it by act inter vivos. The Master of the Eolls fol- lowed his own decisions in Bridge v. Bridge^ and Beech v. Keep,' which, as we submit, are at variance with Sloane v. Cadogan and Keke- wich V. Manning. The retention of the deed by Ladj' Cholmeley does not affect its validity', Fletcher v. Fletcher ; *, and, if it was once effectual, its destruction is of course immaterial. Donaldson v. Donaldson^ is in our favor. Mr. Hohhome and Mr. W. W. Karslake for the respondents. In the circumstances of this case, there would have been no equity against Lady Cholmeley herself to enforce the settlement had she been still alive. All the circumstances must be considered to see whether the settlor intended the transaction to be binding at once. Cecil v. Butcher.' In all the cases where voluntary assignments of choses in action have been upheld, the transaction was intended to be complete as between the grantor and the grantee. Here Lady Cholmeley intended the ar- rangement to be purely private between herself and her solicitor, and to be incomplete until the death of the surviving tenant for life. The retainer of the deed by the settlor, coupled with the fact of its subse- quent destruction and the absence of notice to tlie trustees of the deed of 1820, or to any beneficiary or trustee under the voluntary settlement, is conclusive evidence that she intended to reserve a power of revoca- tion, or at any rate a control over the property. In such circumstances, the court has relieved against, or refused to act on a voluntary settle- ment. Naldred v. Gilliam,' recognized in Cotton v. King,^ Boughton v. Boughton,^ and Doe d. Garnons v. Knight ; i" and expressly followed in Uniacke v. Giles." As to the cases cited on the other side, in Fletcher V. Fletcher the question was, whether the legal liability created by the, covenant could be enforced against the estate ; in Blakeley v. Brady there was a power of attorney ; in Fortescue v. Barnett the deed was delivered to the trustees, and in Donaldson v. Donaldson ^^ to the bene- ficiaries ; in Sloane v. Cadogan and Kekewich v. Manning it was held 1 2 Drury & "Walsh, 1 Bligh N. E. 497. ^ 5 Madd. Ch. 351. ' 1 Dow, 1. * A gift, accompanied by a delivery of the instrument, was held to pass the equitable interest in an obligation, in the following cases ; — Notes : Jones v. Deyer, 16 Ala. 221, 225 (semhle) ; "Wing v. Merchant, 57 Me. 383 ; Hale v. Eice, 124 Mass. 292 ; Westerlo v. De Witt, 36 N. Y. 340 (semhle) ; Mack V. Mack, 3 Hun, 323 ; Branson v. Brunson, Meigs, 630. But see Thompson v. Dorsey, 4 Md. Ch. 149, contra. Bonds : Hunt v. Hunt, 119 Mass. 474 ; Gilchrist v. Stevenson, 9 Barb. 9 ; Hunter V. Hunter, 19 Barb. 631 ; Hackney v. Vrooman, 62 Barb. 650 ; Pringle v. Pringle, 59 Pa. 281 ; Elam v. Keen, 4 Leigh, 333 ; Lee v. Boak, 11 Grat. 182 (semlle), accord. But see Johnson v. Spies, 5 Hun, 468 {semhle), contra. Policies of Insurance ; Lemon v. Phcenix Co., 38 Conn. 294 ; Otiss. Beckwith, 49 111. 121 ; N. Y. Co. v. Flack, 3 Md. 341 ; Crittenden v. Phoenix Co., 41 Mich. 442 ; Bond v. Bunting, 78 Pa. 210. Depositor's PASS-Booits : Camp's Appeal, 36 Conn. 88 ; Hill v. Stevenson, 63 Me. 364 ; Kimball v. Leland, 110 Mass. 325 ; Foss v. Lowell Bank, 111 Mass. 285 ; Davis V. Ney, 125 Mass. 590 ; Penfield v. Thayer, 2 E. D. Sm. 305. Murray v. Cannon, 41 Md. 466, contra. Lottery Ticket : Grangiac v. Arden, 10 Johns. 293. In Bowring v. King, 37 Ala. 606 (Note), Hitch v. Davis, 3 Md. Ch. 266 (Note), Cox 1). Hill, 6 Md. 274 (Bond), Montgomery v. Miller, 3 Redf. 154 (Note), there being no delivery, it was held that the gift passed no interest, either legal or equitable. In Fairly v. McLean, 11 Ired. 158, Brickhouse v. Brickhouse, 11 Ired. 404, Overton V. Sawyer, 7 Jones (N. Ca.), 6, the donor of unindorsed negotiable paper was held enti- tled to maintain trover against the donee for the instrument. But see Barton v. Gainer, 3 H. & N. 387 (Bond) ; Witt v. Amis, 1 B. & S. 109 (Policy of insurance), contra. As to gifts of obligations mortis causa, see 2 Ames, Cases on Bills and Notes, 700, 701. — Ed. ' See supra, p. 79, n. 1. — Ed. CHAP. I.] WrfTANS V. PEEBLES. Ill adjudged void, and that a deed of the same premises, by said Corbet to the defendant Burdick, be also declared void, and the plaintiffs be adjudged entitled to said premises, and that they be entitled to recover the same, and the rents and profits thereof. The court, which tried the action without a jury, found the following facts, viz. : — 1. That on the 15th day of March, 1851, Catharine M. Peebles re- ceived, by gift from her father, William Steele, a conveyance of the land and premises described in the complaint, the purchase-money thereof having been paid by said Steele, and the conveyance made by one Hughson and wife, the owner of the same. 2. That on the 28th day of June, 1851, the said Catharine made a voluntary conveyance of the same premises to said Corbet Peebles, and that no consideration was paid by the said Corbet or received by the said Catharine therefor. 3. That at the time of the said conveyances and for ten years pre- vious thereto, the said Catharine was the wife of the said Corbet, and that there was no issue of the marriage of the said Corbet and the said Catharine. 4. That the plaintiffs in this action are the only heirs-at-law of the said Catharine, being the issue of the said Catharine by a former marriage. 5. That said conveyance by said Catharine to said Corbet was not made or procured by any undue influence on the part of the said Corbet. 6. That said conveyance was made by said Catharine in pursuance of a request made by her father at the time the property was given to her, and her verbal promise to him to convey the same to her husband after her father's decease. And the court found the following con- clusions of law : — 1. That said conveyance by said Catharine to said Corbet was a good and valid conve3'ance, and vested in him a perfect title at law, notwithstanding she was, at the time of such conveyance, the wife of the said Corbet. 2. That even if such conveyance was not a valid conveyance at law, the same was good and might be sustained in equity. Judgment was thereupon given for the defendants, and the same was affirmed at General Term, and the plaintiffs now appeal to this court. This case was decided at the Steuben Special Term, in 1859, when a very elaborate and able opinion was delivered bj' the learned justice who tried the action, sustaining the conclusions of law at which he arrived. The onl}- reported decision to which his attention was called, maintaining a contrary doctrine, was that of Graham v. Van Wyck,^ a Special Term decision by Mr. Justice Barculo. The learned justice 1 14 Barb. 531. 112 "WINANS V. PEEBLES. [CHAP. I. did not regard this as an autiioritative decision, and proceeded to dis- cuss, with much learning and force, the two questions involved, and arrived at the conclusion that the conveyance from the wife direct to the husband could be maintained at law and also in equity. The gen- eral term of the Supreme Court would seem to have concurred in those views. Both the points presented and passed upon in the court below arose and were considered by this court in the case of White v. Wager,' decided in September, 1862, the report of which was pubUshed in 1863. '^ The points adjudicated received an ample and careful discussion, and nothing can be added to the force of the conclusions then reached. Thej' there held that a deed executed by a married woman to her hus- band, under circumstances very similar to those presented in the case at bar, was wholly ineffectual and void, and that the defective convey- ance, being wholly without consideration, a court of equity would not interfere to sustain it. The doctrine of that case is decisive of the present one, and the judgment appealed from must be reversed, and a new trial ordered, costs to abide the event. On another trial, it will be competent for the defendant Peebles to seek to establish the validity of the deed by the application to the case of the principle of equity, upon proof that it was not voluntary, but given upon consideration. It will be competent for him to show that he is entitled to equitable relief, to the extent of the consideration paid by him, and of the value of the improvements made by him upon said premises. 1 Story Eq. Jur. §§ 64, 693, 694, 700, 700 a, 797. Judgment reversed ; new trial ordered, without prejudice to the equities of respondent, for his advances toward the land and improve- ments made upon faith of his title.' 1 25 N. Y. 328. 2 In Hunt V. Johnson, 44 N. Y. 27, Hunt, C, said, p. 35 : "In "White v. Wager, the question of the equitable interposition of the court did not and could not arise. The action was to recover damages for breach of warranty of title." — Ed. 3 Kinnaman v. Pyle, 44 Ind. 275 ; White v. Wager, 25 N. Y. 328 {semble), accord. Bee Hunt v. Johnson, 44 N. Y. 27, 35-37 ; Townshend v. Townshend, 1 Abb. N. 0. Bl. — Ed. CHAP. I.] KAY V. SIMMONS. 113 MARIAJSnSTA RAT v. JOSIAH SIMMONS, Administrator. Ik the Supreme CotiRT, Rhode Island, December 27, 1875. ^Reported in 11 Shade Island Reports, 266.] Bill in equity to establisli a trust. Durfee, C. J. Thie principal question in this case is whether the plaintiff is beneficially entitled to a sum of money which was formerly on deposit in the Fall River Savings Bank. The deposit was made by the late Levi Bosworth, in his own name, as trustee, for the plaintiff, — the account contained in the bank-book which was furnished to Bos- worth being headed as follows, to wit : "Dr. Fall River Savings Bank in account with Levi Bosworth, trustee for Marianna Ray, Prov. Cr." The first deposit of $484 is credited as cash, under the date of April 6, 1868. The account is also credited with cash, October 31, 1868, $50, and January 8, 1872, $70, and with divers dividends. All the divi- dends were credited as they accrued, except one of $25.66, which was paid to Bosworth, October 12, 1870. And this was the only money withdrawn from the deposit by him previous to his death, which occurred September 15, 1872. The plaintiff, Marianna Ray, is the daughter of Ruth M. Bosworth, the widow of Levi Bosworth, by a former husband. She lived in the family of Levi Bosworth for several years previous to his death. Levi Bosworth had no children. Mrs. Bosworth testifies that he treated the plaintiff as his daughter. She also testifies that the first she knew of the bank-book, Mr. Bosworth brought it home and threw it in the plaintiff's lap. The plaintiff opened and read it, and said she was much obliged for the present. Bosworth said nothing in reply. She, Mrs. Bosworth, put the book in a box where she kept her own bank-book, a bank-book of her daughter, and bank-books belonging to her husband. She says he carried the book to Fall River three times to have the interest entered, and gave it to the plaintiff on his return. He was a man of few words, and would do things without explanation. "When he made the last deposit of $70 and gave the plaintiff notice of it, she, Mrs. Bosworth, said to him : " I don't know about your making such presents ! " to which he replied, "I shouldn't think you need trouble yourself about it ; if anything happens to her, you will hold it." The plaintiff claims to be entitled to the deposit, as money held in trust for her by Levi Bosworth. The defendant, as administrator on Bosworth's estate, resists the claim. His answer to her bill avers on information and belief that Bosworth made the deposit in his name as trustee for his own convenience, and because he had another deposit in VOL. I. 8 114 KAY V. SIMMONS. |CHAP. I. his own name to as large an amount as the bank would receive on any one account, and therefore, to induce the bank to receive the further de- posit, he put it in Ms name as trustee, as is a very common practice in such cases, always retaining the book under his own control. In sup- port of this awrment, the defendant testified that Bosworth told him, when he was building his house, that he had money deposited in the Fall River Sa^angs Bank, in his own name, to as large an amount as he could deposit in his own name, and in another person's name, but did not say in whose name. He also testified to conduct and admis- sions, on the part of the plaintiff and her mother, at variance with the plaintiff's present claim. We, however, refrain from reciting this tes- timony, because, in view of the explanations given by Mrs. Bosworth,, we are not prepared to believe that her testimony is substantially incorrect. The defendant contends that the plaintiff is not entitled to relief, be- cause there was no effectual trust, inasmuch as Bosworth, by retaining the book, always kept and intended to keep control over the deposit for his own use, and did in fact so control it by receiving the dividend which was paid to him October 12, 1870. We think, however, the trust was completely constituted. Levi Bos- worth deposited the money in the bank to himself as trustee. The bank, receiving it, credited it to him as trustee, and from time to time credited to him as trustee the dividends accruing thereon. It gave him a bank-book in which these credits were entered. Bosworth more- over communicated to the plaintiff the fact that he had made the deposit to himself as her trustee by letting her have the book. It is urged that the book was returned to him by her, and retained by him. But the book was given by the bank to him as trustee, and as trustee he would properly retain it. All was done which the plaintiff could ask, unless she desired to have the money paid or transferred to her, which would be not constituting the trust, but carrying into effect and discharging it. Bosworth might have declared himself more explicitly ; but, sup- posing his object was to create a trust and make himself the trustee, we can think of no act necessar}' to effect his purpose which he has left undone. When the trust is voluntary, courts of equity do not enforce it, so long as it remains inchoate or incomplete ; but when once the trust has been constituted, they do not refuse relief because it is voluntary. Stone et al. v. King et als.^ A person need use no particular form of words to create a trust, or to make himself a trustee. It is enough if, having the property, he conveys it to another in trust, or, the prop- erty being personal, if he unequivocally declares, either orally or in writing, that he holds it in prcesenti in ti-ust, or as a trustee for another. 1 7 R. I. 358. CHAP. I.] RAY V. SIMMONS. 115 Ex parte Pye ; Milroy v. Lord ; Kichardsoii *. Richardson ; Kekewich v. Manning ; Morgan v. Malleson ; Penfold v. Mould ; ^ Wheatle}- v. Purr ; M'Fadden v. Jenkyns ; Thorpe u. Owen.^ And the creation of the trust, if otherwise unequivocal, is not affected by the settlor's retention of the instrument of trust, especially where he is himself the trustee. Exton V. Scott ; * Fletcher v. Fletcher ; * Carson's Adm'r v. Phelps ; ' Souverbye et ux. V. Arden et als. ; ° Bunn v. Winthrop et ah.'' In Wheatley v. Purr, the settlor instructed her bankers, with whom she had a deposit of £3,000, to place £2,000 in the joint names of the plaintiffs and her own, as trustee for the plaintiffs. The sum of £2,000 was entered by the bankers in their books to the account of the settlor as trustee for the plaintiffs, and a promissory' note given for it payable to the settlor trustee for the plaintiffs, or order, fourteen days after sight. A receipt for this note was signed by the settlor and given to the bankers. The trust was held to be effectually created. In our opinion, the case is not distinguishable from the case at bar. Indeed, the case at bar is stronger, in that notice of the trust was communicated to the cestui que trust. And see Millspaugh v. Putnam ; * Howard, Adm'r, v. Savings Bank.' The counsel for the defendant calls our attention to the declaration made by Mr. Bosworth, while his house was building. The declaration was casually made, and may have been misunderstood. But, supposing it was correctl}' understood, we do not think we can allow it to alter our decision. The trust, except in so far as it was increased by sub- sequent deposits, was, in our opinion, created before the declaration was made ; and no such declaration made after the creation of the trust could have any legitimate effect on it. The same is true in regard to the withdrawal of the dividend. It may be remarked, also, that the dividend withdrawn was more than replaced bj' the seventy dollars afterwards deposited. The counsel for the defendant also calls our attention to the cases of Brabrook v. Boston Five Cents Savings Bank,'" and Clark v. Clark." These are cases in which A. deposited money in a savings bank in his own name as trustee for B., but alwaj's retained the bank-book, and never communicated to B. any notice of the deposit. Thej' are cases at law. The court i-uled that B. was not entitled to the deposit, being neither partj' nor privy to the transaction. In one of the cases, the court found, as a fact affirmatively proved, that no actual gift or trust was intended. We do not think the cases are precedents which should govern the decision of the case at bar. 1 L. B. 4 Eq. 562. = 5 Beav. 224. » 6 Sim. 31. * 4 Hare, 67. ^ 14 Am. Law Reg. n. s. 100. 6 1 Johns. Ch. 240. ' 1 Johns. Ch. 329. ^ jg Abb. Pr. 380. 9 40 Vt. 597. "> 104 Mass. 228. " 108 Mass. 522. 116 RAY V. SIMMONS. [CHAP. I. The bill is against the defendant, as administrator on the estate of Levi Bosworth. It alleges that the defendant, as administrator, has withdrawn the deposit and now has it in his possession, and refuses to pay it to the plaintiff. The answer alleges that the defendant was appointed administrator in Massachusetts, and as such withdrew the deposit ; but does not deny that he now holds it as administrator in this State, but avers that he now holds the same as a part of the estate of the decedent. From this we presume that he holds it as adminis- trator in this State. In this view, we think that the defendant may be held to account directly with the plaintiff, and will decree accordingly. Decree, January 22, 1876, ordering the respondent to pay to the complainant the whole deposit, with interest, in the Fall Eiver Savings Bank, standing in the name of Levi Bosworth, trustee.* L. ^ G. M. Salisbury, for complainant. Tillinghast ^ Ely, for respondent. 1 Millspaugh v. Putnam, 16 Abb. Pr. 380 ; O'Brien ; 11 E. I. 419, accord. The trust is none the less effectually created although the depositor retains the pass- book in his possession, and gives no notice of the deposit to the cestui que trust during his lifetime. Minor ■». Rogers, 40 Conn. 512 ; Witzel v. Chapiu, 3 Bradf. 386 ; Smith u. Lee, 2 Th. & C. 591 ; Martin v. Funk, 75 N. Y. 134. The decisions to the con- trary in Stone v. Bishop, 4 Cliff. 593, Clark u. Clark, 108 Mass. 522, Cummings o. Bramhall, 120 Mass. 554, seem not to have been well considered, but to have been founded upon a misconception of the case of Brabrook v. Boston Bank, 104 Mass. 228, which case, like Field v. Lonsdale, 13 Beav. 78, Powers v. Provident Inst., 124 Mass. 377, Jewett o. Shattuck, 124 Mass. 590, and "Weber v. Weber (N. Y. S. Ct. 1879), 21 Alb. L. J. 51, is to be supported upon the ground that there was no intention to create a trust in that case, the ostensible deposit in trust being made diverse intuitu. A deposit in a bank by A. in the name of B. is a complete gift to B., if so in- tended by A.: Stapleton v. Stapleton, 14 Sim. 186 ; Mews v. Mews, 15 Beav. 529, 533, 534 (semble) ; Gardner v. Merritt, 32 Md. 78 ; Blasdel v. Locke, 52 N. H. 238 ; even though B. has no knowledge of the deposit before A.'s death ; Howard v. Windham Bank, 40 Vt. 597. But a contrary intention may be shown. Broderick v. Waltham Bank, 109 Mass. 149. See also Taylor v. Henry, 48 Md. 550. The same principle ap- plies to a policy of life insurance taken out by A. in B.'s name : Lemon v. Phoenix Co., 38 Conn. 294 ; or to stock entered by A. in B.'s name upon the books of the com- pany : Kilpin v. Kilpin, 1 M. & K. 520 ; Adams v. Brackett, 5 Met. 280. — Ed. CHAP, n.] HAKDINa V. GLYN. 117 CHAPTER II. THE LANGUAGE NECESSARY TO THE CREATION OE A TRUST. HARDING V. GLYN. In Chancery, before Hon. John Veeney, M. R., June 7, 1739. [Keportedin 1 Atkyns, 469.] Nicholas Harding in 1701 made his will, and thereby gave "to Elizabeth, his wife, all his estate, leases, and interest in his house in Hatton Garden, and all the goods, furniture, and chattels therein at the time of his death, and also all his plate, linen, jewels, and other wearing-apparel, but did desire her at or before her death to give such leases, house, furniture, goods and chattels, plate and jewels, unto and amongst such of his own relations as she should think most deserving and approve of," and made his wife executrix, and died the 23d of January, 1736, without issue. Elizabeth, his widow, made her will on the 12th of June, 1737, " and thereby gave aU her estate, right, title, and interest to Henry Swindell in the house in Hatton Garden, which her husband had bequeathed to her in manner aforesaid ; and after giving several legacies, bequeathed the residue of her personal estate to the defendant Glyn and two other persons, and made them executors," and soon after died, without hav- ing given at or before her death the goods in the said house, or without having disposed of any of her husband's jewels, to his relations. The plaintiffs insisting that Elizabeth Harding had no property in the said furniture and jewels but for life, with a limited power of dis- posing of the same to her husband's relations, which she has not done, brought their bill in order that they might be distributed amongst his relations, according to the rule of distribution of intestates' effects. Master of the Rolls. The first question is. If this is vested ab- solutely in the wife? And the second. If it is to be considered as undisposed of, after her death, who are entitled to it? As to the first, it is clear the wife was intended to take onlj- bene- ficially during her life ; there are no technical words in a will, but the manifest intent of the testator is to take place, and the words " will- ing" or "desiring" have been frequently construed to amount to a 118 HAEDIJSG V, GLYJf. j[.CBAP. JL trust, Eacles et ux. v. England et ux. ; ^ and the only doubt arises upon the persons who are to take after her. Where the uncertainty is such that it is impossible for the court to determine what persons are meant, it is very strong for the court to construe it only as a recommendation to tihe first devisee, and make it absolute as to him ; but here the word ' ' relations " is a legal description, and this is a devise to such relations, and operates as a trust in the wife, by way of power of naming and apportioning, and her non-per- formance of the power shall not make the devise void, but the power shall devolve on the court ; and though this is not to pass by vulue of the statute of distributions, yet that is a good rule for the court to go by. And therefore I think it ought to be divided among such of the relations of the testator Nicholas Harding, who were his next of kin at her death ; and do order that so much of the said household goods in Hatton Garden, and other personal estate of the said testator Nicholas Harding, devised by his will to the said Elizabeth Harding, his wife, which she did not dispose of according to the power given her therebj', in case the same remains in specie, or the value thereof, be delivered to the next of kin of the said testator Nicholas Harding, to be divided equally amongst them, to take place from the time of the death of the said Elizabeth Harding.^ 1 2 Vem, 466. 2 In the following case the language was held to he mandatory, and therefore to create a trust: Brown v. Higgs, 8 Ves. 561. ("I authorize and empower my nephew John Brown to receive the rent," &c., " and to dispose of it in the following manner, that is to say, to take jEIOO of it every year to his sole and saparate use, and to employ the remainder ... to such children of my nephew Samuel Brown as my said nephew John Brown shall think most deserving, and that will make the best use of it") Birch ». "Wadfi, 3 V. & B. 198 ("It is my Will and Desire that the other third Part of the Principal of my Estate and Effects he left entirely to the Disposal of my dear and loving Wife among such of her Eelations as she may think proper after the Death of my aforesaid Sisters ") ; Prevost V. Clark, 2 Mad. 458 ("Convinced of the high sense of honor, the prohity and affection of my Son in Law, Edward Clarke, 1 entreat him, should he not be blessed with children by my Daughter, and survivor, that he will leave at his de- cease to my Children and Grandchildren the share of my property I have bestowed upon her") ; Forbes «. Ball, 3 Mer. 437 ( " I give to my dear wife, Ann Cotterel, the sum of £500; and it is my will and desire that my said wife, Ann Cotterel, may dispose of the same amongst her relations, as she by will may think proper") ; Salusbury v. Denton, 3 K. & J. 529 (" The remainder of said moiety to be at her disposal among my relations, in such proportions as she may be pleased to direct "), — the language was held to be mandatory, and therefore to constitute a trust. In Brown v. Higgs, mpra. Lord Eldon said, p. 570 : "It is perfectly clear that, where there is a mere power of disposing, and that power is not executed, this court CHAP, n.] HAKliAND », TEIGa. 119 HARLAND v. TRIGG. Is Chancery, befoee Loed Thtjelow, C, , 1782. [Meported in 1 Brown's Chancery Cases, 142.] Richard Harland, being seised in fee of the manor of Sutton, in the county of York, and having four sons, Philip, John, Richard, (the plaintiflf), and Francis, by his will in 1747 deraed the said manor (with other lands) to Philip, the eldest son, for life, with remainder to his first and other sons in taU male, remainder to John, the second son, for life, remainder to the plaintiff for life, remainder to Richard for life, with like remainders to their several first and other sons, and with further remainders over. Richard, the father, died in 1750 ; Philip en- tered, and, being himself also possessed of leasehold estates in Sutton, some for lives and others for years, by his will, made in the year 1764, gave his leasehold estate for lives to the trustees of his father's will, to the same uses to which the lands devised by the father's will were lim- ited, so far as by law he could ; and then followed this clause : " And all other my leasehold estates in the parish or township of Sutton I give to my brother John Harland, for ever, hoping he will continue them in the family." PhiUp died in 1766. John entered on the estate, and died in 1772,. having made his will and given these lease- hold estates to his widow, whom he made executrix, and who since married the defendant Trigg. Richard, the third son, filed this bill, insisting the devise in Philip's will subjected these estates to the same uses as those declared by the father's will, that he was, therefore, enti- tled to the next estate in remainder, and praying that it might be so declared. Mr. Aitomey- General, Mr. Madocks, Mr. Ainge, and Mr. Spranger contended that John had an estate only for life ; they argued that a tion of that trust fails by the death of the trustee, or by accident, this Court will execute the trust. One question, therefore, is, whether John Brown had a tl'ust to execute, or a power, and a mere power. But there are not only a mere trust and a mere power, hut there is also known to this court a power which the party to whom it is given is intrusted and required to execute ; and with regard to that species of power the court consider it as partaking so much of the nature and qualities of a trust, that if the person who has that duty imposed upon him does not discharge it, the court Aviil, to a certain extent, discharge the duty in his room alid place. Upon that prin- ciple, the case of Harding v. Glyn proceeded. But that case cannot be got rid of by saying it is a singular case, and that it is difficult to reconcile all subsequent cases with it ; for that case has been treated as a clear authority, probably for the whole, certainly by my own experience for a very considerable part, of the time elapsed since that judgment was pronounced." See also Barrough v. Philcox, 5 M. & Cr. 73, and conf. Marlborough v. Godolphin, 2 Yes. 61. — Ed. 120 HAKLAND V. TRIGG. [CHAP. U. request in a will is sufficient to raise a trust, and is equivalent to a de- vise ; for this they cited Harding v. Glyn. The case upon the will of Wortley Montague, in the House of Lords,i Richardson v. Chap- man, also in the House of Lords,^ and contended that, here, the inten- tion must be that the estates should go to the uses in the father's will. LoKD Chancbllok. I have no doubt but a requisition made with a clear object will amount to a trust. In the case of the Duchess of Buckingham's will, the words were very gentle, but had a distinct ob- ject. But where the words are not clear as to their object, they can- not raise a trust. "Where this testator had a leasehold estate, which he meant should go to the family, he has used apt words ; therefore, where he has not used such words, he had a different intent. Mr. Mansfield and Mr. Lloyd, for the defendant, argued that by the word " family " he had not pointed out any particular branch of the fam- ily ; although " relations " is a well-known technical word, " family" is not ; the devise would have been satisfied by giving it to anj^ branch of the family. They further observed that, in the former devise, he had given the lands he meant to go together, to trustees, in accurate language, and that, if he had intended these estates to be under the same trust, he would have used the same words. Mr. Attorney- General, in replj^ insisted here was a manifest at- tention to the object contended for by the plaintiffs, from the circum- stance of the testator's passing by his daughters and giving it to John Harland. This showed that by ' ' family " he did not mean children, and said that, if the subject of the devise had been personal property, as the goods in his house, it would have been sufficient to have made those goods heirlooms. LoKD Chancellor. I think every will ought to be construed accord- ing to the intent of the testator, where it can be collected. In order to make a title, the plaintiff states that the father had settled his es- tates in strict settlement, and insists that I shall understand this devise as giving the leasehold estates to the same uses, as nearly as their nature wUl admit. The testator gives other estates to trustees, subject to charges, to the uses in that settlement ; he, therefore, understood how to make his estates liable to those uses, and intended something different here. The argument is, that there will be part of the will in- effectual, the words " hoping that he will continue them in the family : " the answer is, that the words are precatorj', not imperative. Another argument made use of is, that, if this was furniture, the devise would carry it : but, if so, it would be on this ground that he recollected that the house would pass, and meant the furniture should remain attached to it under all its limitations. That case has peculiarities tliat do not 1 Earl of Butei). Stuart, 5 Brown's Pari. Cases, 534. [1 vol. 476, Toml.edit.] CHAP. II.] HARLAND V. TRIGG. 121 occur here. It would be a great deal too much to tie this up as a strict settlement. I had a doubt whether^ the familj' could not claim some interest in the subject, but when I come to consider, I take the rule of law to be this : that two things must concur to constitute these devises, — the terms and the object. Hoping is in contradistinction to a direct devise ; but whenever there are annexed to such words pre- cise and direct objects, the law has connected the whole together, and ' held the words sufficient to raise a trust : but then the objects must be distinct ; where there is a choice, it must be in the power of the devisee to dispose of it either way. If he had sold these leaseholds, the family could not have taken them from the vendee, or if he had given them to any one part of the family, the others could have no remedy. The will does not import a devise, as the words do not clearly demonstrate an object. I am therefore of opinion that the biU must be dismissed.^ ^ In the following cases the language was held to be precatory merely, and therefore to create no trust : Meredith ■». Heneage, 1 Sim. 542 ("I have devised and bequeathed the whole of my said real and personal estate, hereinbefore particularly set forth, unto my said dear Wife . . . unfettered and nnlimited, in full confidence and with the firmest persuasion that, in her future disposition and distribution thereof, she will distinguish the heirs of my late Father, by devising and bequeathing the Whole of my said estate, together and entire, to such of my said Father's heirs as she may think best deserves her preference " ) . Benson v. Whittam, 5 Sim. 22 ("The residue of said dividends to my Brother, Arthur Benson, to enable him to assist such of the Children of my deceased Brother, Francis Benson, as he the said Arthur Benson shall find deserving of encourage- ment"). Johnston v. Rowlands, 2 De G. & Sm. 356 ("As to the sum of $2,000 ... I give the same to my said wife, to be disposed of by her will in such way as she shall think proper ; but I recommend her to dispose of one half thereof to her own relations, and the other half among such of my relations as she shall think proper "). Williams v. Williams, 1 Sim. N. s. 358 ("It is my wish that you [the testator's wife] should enjoy everything in my power to give, using your judgment as to whom to dispose of it amongst your children when you can no longer enjoy it yourself ; but I should be unhappy if I thought it possible that any one, not of your family, should be the better for what, I feel confident, you will so well direct the disposal of"). Green v. Marsden, 1 Drew. 646 (Bequest of stock to a wife. "And I beg and request that at her death she will give and bequeath the same in such shares as she shall think proper, unto such members of her own family as she shall think most de- serving of the same "). Reeves v. Baker, 18 Beav. 372 ("The residue of my property ... to my beloved wife, Mary Rees, her heirs and assigns forever, being fully satisfied that ... she will dispose of the same, by will or otherwise, in a fair and equitable manner, to our united relations, bearing in mind that my relations are generally in better worldly circum- stances than hers are "). Howorth V. Dewell, 29 Beav. 18 ("All the residue ... I do give, devise, and be- queath unto my dear wife, with power for her to dispose of the same unto and amongst all mj' children, or to any one or more of them, for such estate or estates, either in fee-simple or in tail, term of life or other interest, temporai-y or lasting, or in such other shares, 122 WYNNE V. HAWKINS. [CHAP. It. WYNNE V. HAWKINS. In Chancery, before Lord Thdrlow, C, , 1782. [Reported in 1 Brown's Chancery Cases, 179.] The plaintiff is the onlj' surviving child of William Wynne, who was the only son of John Wynne. John Wynne, by will dated in 1773, gave some pecuniary legacies, and then went on as follows : " And as I have lately received the melancholj' account of the death of my dear son William Wj'nne, at Bengal, who has left a widow and two small children, and I am informed he died worth five times the fortune I shall leave behind me, which will be a handsome provision ; and as I shall leave behind me, over and above the said legacies, only sufficient for a decent maintenance for my loving wife Mary WjTine, by whose prudence and economy I have saved the greatest part of the fortune I shall die possessed of, not doubting but that she will dispose of what shall be left at her death to our two grandchildren : all the rest and residue of my personal estate, goods, chattels, moneys in the stocks, plate, jew- els, watches., and household furniture, and whatever else I shall be possessed of at the time of mj' decease, I give and bequeath to my londng wife Mary, hereby constituting and appointing her sole execu- trix." The testator died in September, 1775. The wife died intes- tate, July, 1781, and this bill was filed by the surviving grandchild, against her personal representative, for an account of, and to be paid such part of the estate of the grandfather, as remained undisposed of by the wife during her life. And the question was, whether these words made an absolute devise to the wife, or operated as a remainder over. Mr. Mansfield, for the plaintiffs. The words " not doubting" are as strong as those made use of in an}' of the cases, such as " request" or ' ' desire ; " they express a thorough confidence. He cited 9 Mod. 122, not doubting she would be kind to his children. No objection was made to the force of the words " not doubting." The words in the Institute are peto, rogo, mando, Jidei tuce eommitlo, and have always been held compulsorJ^ Mr. Hardinge, on the same side, cited Harland v. Tri^ ; Harding v. Glyn ; Eales v. England ; i Trott v. Vernon.^ There is no case where proportions, or interest ... as my said wife shall, in her discretion, see most fittiug and proper"). In re Pinckard's Trust, 27 L. J. Ch. 422. See Wright v. Atkyns, Cooper, 121, 122 ; T. & E. 143 ; 17 Ves. 255 ; 19 Ves. 299 ; 1 V. & B. 313 ; Sugd. Law of Prop. 376, s. c. — Ed. 1 2 Vern. 466 ; s. o. Preo. Ch. 200. CSBA^. U.'\ WyKNE V. HA^WKINB. J.23 the word "desire" has not been held imperative, though there have been cases where the decree has been contrary, on account of the un- certainty of the person intended. The cases 2 Vern. 559, 10 Mod. 404, are too strong to argue from. That of Harland v. Trigg is quite out of the reason of this case ; hoping he will continue them in the family is quite uncertain as to tlie persons. 2 Eq. Abr. 291. Mr. Attorney- General, for the defendants, cited Bland v. Bland, in 1745, and Birkhead v. Coward.^ LoED Chancellor. If a bill had been filed in the lifetime of the wife, could I have ordered this money to be laid out, and that she should receive the interest for her life, and then it should go over? These are equivocal words, the intent of which is to be gathered from the context. If the intention is clear what was to be given, and to whom, I should think the words ' ' not doubting " would be strong enough. But where, in point of context, it is uncertain what property was to be given, and to whom, the words are not sufficient, because it is doubt- ful what is the confidence which the testator has reposed ; and, where that does not appear, the scale leans to the presumption that he meant to give the whole to the first taker. Here he looked upon the provision made by the father of the grandchildren as an ample provision, and meant this fortune to pass through the pleasure of his wife, leaving it to her to use what she pleased, and consequently to make the residue such as she chose. If he had meant imperatively, he might easily have used such words as would have eflected his intention ; but it is impos- sible, upon any rule of construction, to make these words an order upon her to pass the property over. Bill dismissed.'' 1 2 Vera. 116. 2 Atty.-Gen. v. HaU, Fitzg. 314 ; 8 Yin. Abr. 456, s. c. ; Bland «. Bland, 2 Cox, 349 ; Sprange v. Barnard, 2 Bro. C. C. 585 ; Pushman v. FiUiter, 3 Ves. Jr. 7 ; Cowman v. Harrison, 10 Hare, 234, accord. In Cowman v. Harrison, supra, Wigram, V. C, said, p. 239 : " The next question is, whether, as a precatory gift, it is good. The rule as to such gifts is, that there must be a certainty of subject ; and the foundation of that rule stands on very solid grounds. The right of a donee to spend the subject-matter of the gift is inconsistent with the nature of a trust ; and the court therefore collects in that case that there can be no intention to impose a trust. The disposition is such that, if a trust were raised, it could not be enforced ; and the' court, therefore, will not impute to the testator an in- tention to raise it. Independently of principle, I think the authorities referred to by the defendants decide the question, and that the case falls completely within the class of cases in which the testator makes a gift of so much as shall be left at the decease of a person to whom he has given the use of the thing referred to." — Ed. 124 PIEESON V. GABNET. [CHAP. II. PETER PIERSON, Esq., Residuaey Legatee of JOHN GARNET, V. RACHEL GARNET, Spinster, only Sistek and Heir-at- Law op JOHN GARNET, and others. In Chancery, before Sir Lloyd Kenyon, M. R., February 10, March 6, 1786. [Seported in 2 Browns Chancery Cases, 38.] John Garnet, late Lord Bishop of Clogher, by his will dated 12th October, 1780, gave his personal propertj^ to Samuel Salt, Esq., in trust, to pay to several of the defendants annuities stipulated in his said will, and went on as follows: "And, subject to the said annuities, it is my will that the said Samuel Salt, his executors, administrators, and assigns, shall and do pay, or permit and suffer, my kinsman, Peter Pierson, of the Inner Temple, London, Esq., to receive the whole of the residue of the proceeds, interest, and profit of the said fund so to be placed out at interest, after the payment of the said annuities, for and during the term of his natural hfe, with the full benefit of the said annuities, if they or any of them shall cease during his life ; and, from and after the death of the said annuitants, I bequeath the said residue to the said Peter Pierson, his executors, administrators, and assigns : and it is my dying request to the said Peter Pierson, that, if he shall die without leaving issue living at his death, that the said Peter Pier- son do dispose of what fortune he shall receive under this vay will to and among the descendants of my late aunt, Anne Coppinger, his grandmother, in such manner and proportion as he shall think proper." The principal question^ was, whether the terms used in the recited clause were recommendatorj' only, or imperative, and raised a trust for the descendants of Anne Coppinger. There were three accessory questions. The reporter did not hear the opening for either the plaintiff or de- fendant, but understands that it was argued by Mr. Ambler, Mr. Scott, and Mr. Clifford, for the plaintiff; Mr. Price, Mr. Selwyn, Mr. Robin- son, and Mr. Graham, for the defendants, to the general effect fol- lowing : — With respect to the first and most material question, the plaintiffs counsel contended that the words were merely recommendatory. Mr. Ambler and Mr. Scott attempted to argue upon the intei-pretation of these words, as being equivalent to peto, rogo, fidei Iucb committo ; insist- ing that the words " djdng request " amounted only to an earnest wish CHAP, n.] PIERSON V. GARNET. 125 of the testator, but nothing further ; that they were not strong enough to raise a trust according to the notions of the civil law. His Honor seeming inclined to lay out of the case the civil law, wished it to be argued upon the principles laid down in former cases. The counsel, in consequence of this, contended that the rule laid down and adhered to by the court was, that there must be a certainty of the gift and of the object to whom it is given. As to the gift itself, it was sufficiently marked ; but as to the objects, there could be no certainty whatsoever. It was difficult to decide whom the testator meant by de- scendants ; whether those that were Uving at the time of making his win, at his own death, or those born after, or those who should be in esse at the death of Peter Pierson : it was so difficult to determine who the particular persons intended were, that it would be impossible to decide the question. ■ His Honor seemed inclined to defer the question as prima facie, there seemed to be no occasion to go into it, until Peter Pierson should be dead without issue ; but, being much pressed to decide, hy the sug- gestions of plaintiffs counsel, of the disagreeable situation in which the plaintiff stood, not knowing how to treat this property, or how to settle or dispose of it, without the direction of this court, his Honor waived his opinion, and consented to determine it. Mr. Scott said that the will itself afforded an argument in favor of the plaintiff ; that the interest and dividends of the residue, after payment of the annui- ties, were given to Peter Pierson for his natural life ; and then, after all the annuitants were dead, the capital was given to him absolutely. The counsel cited the cases of Harland v. Trigg and "Wynne v. Haw- kins. In Harland v. Trigg the word ' ' famUy " was said to be a word of uncertainty ; so is the word " descendants ; " as to Wynne v. Hawkins, the words " not doubting" were held insufficient to create a trust. With respect to Nowlan v. Nelligan,^ the property was not given to the holder of the fortune, but to the executors themselves. They also cited Hob. 33, 2Eq. Abr. 291, Bland z?. Bland, 1745, LeMaitrew. Bannister, Nov. 26, 1770, where the testatrix gave her fortune to Captain Eoach, and, if- he should die without issue, then she recommended it to him to do justice to her daughter, if he should think her worthy of it ; but, if an}' unforseen accident should make the whole acceptable or service- able to him, he may dispose of it if he should think fit. It was held not to be an imperative bequest. In the present case, if Peter Pierson is not to have the absolute disposal, the bequest is nugatory ; though it is given to him, his executors, administrators, and assigns, it is im- possible for him to use it as his own. The apparent clause upon the will is so absolute that the court cannot force a trust upon the legatee. Mr. Price, Mr. Selwyn, Mr. BoUnson, and Mr. Graham, for the de- 1 1 Bro. C. C. 489. 126 PIERSON V. GAEBTET. [CHAP. II. fendants, insisted that tHs case was totally diffeient from all the author- ities cited ; in all of them the power was in the first taker. If the- matter were res integra, it might be very proper to resort to the Roman code ; but in the present state of judicial decisions, such a reference was totally unnecessary. That the words used here are sufficiently strong to create a trust, appears from the cases of Eales v. England,' Harding v. Glyn, Buggins v. Yeates.^ With regard to the uncertainty of the objects, the descendants are undoubtedly all those who shall be living at the death of Peter Pierson, without issue, as in the case of Baldwin and Carver.^ They may divide the property among them ; the power left to Peter Pierson is apparent, and he maj' execute it without diiHcultj'. With respect to the absolute gift to Peter Pierson, the preceding clause only gives it to him for life,, and is a mark of the intention to control this property. Mr. Ambler, in reply. Then as to the words, whether thej- are suffi- ciently imperative to raise a trust. In order that they should be mf- flcient for that purpose, the intention must appear either by the words^ themselves, bj' the object to which the testator applied them, or upon the face of the will. There has been no case determined on these words, "it is my djing request." The word "request" denotes freewill in the person taking the legacj^ It is rather a stronger word than ' ' desire," but still leaves it in the breast of the party taking to do the act or not. It would be extraordinarj- if such words should be construed as if he had raised an express trust. The cases upon the subject are Harland v. Trigg, Wynne v. Hawkins, Bland v. Bland, The Countess of Bridge water v. The Duke of Bolton.* As to the purposes of such a trust, they will make a difference in the construction ; for, where such words occur, and the purpose is for the paj-ment of debts, it is held a trust, the object making it so. In such a case, even the word "recommend" will constitute a trust; but the objects here are the descendants of Mrs. Coppinger, who are very numerous, many of them unknown to the: testator, and of whom many more may be born during Mr. Pierson's lifetime. They are not objects of the testator's bounty ; he has left it in Mr. Pierson's discretion what proportion he will give to each. This leads to the consideration whether it appears, from the whole will, to be the testator's intention to raise a trust. In CunlifFe v. Cunliffe,' before the commissioners in 1770, it was a devise of a sugar-house to the testator's nephew, Ellis CunlifTe, and, in case his nephew should die without issue, the testator recommended it to him to give it to his brother. The court was of opinion that it 1 2 Vern. 466 ; Preo. Ch. 200. 2 9 Mod. 122. 8 Cowp. 309. 4 1 salk. 326. GHAP. n.] PrEKSOK V. GAEHET. 127 was not sufficient to raise a trust. It is true, it has been said, that in that case the question turned upon the word " recommend ; " but I saj^, it was upon the general circumstances of the case ; for the word " rec- ommend " would have been sufficient had the trust been for the paj- ment of debts. Bland v. Bland, in 1745, shows that wherever the first gift is of the absolute property, such a recommendation following it shall not raise a trust. In that case, Lady Bland gave the estate in question to Sir John Bland, and earnestly requested that, in case he should die with- out issue, he would dispose of the estate, or of so much thereof as he should die seised of, so that the estate might be enjoj^ed by her daughter. It was held to be no trust, inasmuch as the words, " so much as he should die seised of," showed he might dispose of the whole ; and that it was like the case of Attorney-General v. Hall.^ In both these cases the whole was given absolutely ; and, in this case, the whole is given absolutely and emphatically to Pierson. It is not doubtful that he meant to give the whole ; for he has mentioned his executors, adminis- trators, and assigns. Nothing remained in the testator to be given over. In The Countess of Bridgewater v. The Duke of Bolton, the devise was to the devisee, to be given by him to his children, if he should think proper : it was held to be a fee in the devisee. In the present case, it was highly improbable that the testator meant a trust. Mr. Pierson appears to be the sole, or at least the chief, object of his bounty. He was with him in Ireland, and had been abroad with him, and the testator had taken him from the profession of the law ; but, if Mr. Pierson should have no children, it was then the testator's wish that he should dispose of it among the descendants of Anne Cop- pinger, many of whom the testator could not know, and many might be born during Mr. Pierson's lifetime. The Lord Chancellor, in v. , laid great stress on the testa- tor's having given legacies to the persons for whom the trust was to be raised. In this case, the testator has not directed Mr. Pierson to give any specific sum to any of them. Here is no trust in Mr. Pierson, in case he should have children. It is extraordinary there should be a trust if he had not, and none if he had. The construction will make the testator act absurdly ; for, having a regard to Mr. Pierson, he will have given him no power to make a settlement. Upon the death of the annuitants, on this construction, the trust in Salt will expire ; but a new trust will commence in Mr. Pierson, in case of his dying without issue. Another reason against this operating as a trust is the uncer- tainty and impracticability of the devise. I do not mean an un- certainty in the words, which are jiist as certain as "family" or " relations ; " but an uncertainty in point of execution as a trust. It 1 Fitg. 3U. 128 PIEKSON V. GARNET. [CHAP. n. is from this sort of uncertainty that the court has always said the word " relations " shall mean next of kin. In this case, the persons will be equally numerous and uncertain ; it, therefore, could not be intended as a certain trust. The word " family " has been held, in Harland v. Trigg, to mean nobody. In Wynne v. Hawkins, Lord Thurlow said he had decided that case upon the uncertainty of the object. There is no case where the word has been " descendants," except one,* where its signification was laid down by the additional words, "living near Seven Oaks in Kent." So, in General Honeywood's case,^ the words were relations " who should claim within two years." With respect to the impracticabilitj' of the devise, it is sufficient to show that it may be impracticable. Who are the objects ? The descendants living at the making of the will, at the death of the bishop, or of Mr. Pierson ? If at the making of the will, or the death of the bishop, are they to be entitled upon surviving Mr. Pierson? In order to be construed a trust, it must be such a one as Mr. Pierson could execute without the assistance of a court of equity : yet here Mr. Pierson is expected to find out all the descendants, and to give something to every one of them. If he cannot execute the trust, it never could be intended as such. Suppose Mr. Pierson should make no disposition, is the whole world to be searched over for descendants of Anne Coppinger? There is another difficulty : he is under the necessitj"^ of giving something to every one ; if he does not, the whole will be A'oid. Menzey v. Walker.' If it was among the descendants of his grandfather, it would be the same thing. In Eales v. England,* the first taker had only aa estate for life given to him. In Harding v. Glynn, it was cleai-lj' a power ; it was to give it to such of his relations as she should approve. Nowlan V. Nelligan is not like this ; the property was given to the trustees, not to the tenant for life. Master of the Rolls. As to the first question arising upon this will, namely, whether the clause is to be considered as imperative upon Pierson, so as to create a trust, if it is one of those duties of imperfect obligation (as the civilians term them) which bind the moral character of men, but where courts of justice cannot interfere, it will not entitle me to do it, or to go bej^ond those rules which have bound courts of justice. It is better to go upon the principles by which others have decided, than to var3^ from them by spelling out little circumstances in a case, as the ground of determination. The principles appear to he those which are recognized hy Lord Thurlow in the cases of Harland V. Trigg and Wynne v. Hawkins, that where the property to be given is certain, and the objects to whom it is given are certain, there a trust is to be created. And it would be a lamentable case if this 1 Crossley v. Clare, 11 April, 1761. = Ambler, 708. Fide 1 Bro. C. C. 33. CHAP, n.] PIEESON V. GAKNET. 129 court were to raise a distinction upon slight words, such as peto, rogo, fidei tuce eommendo, and such expressions of the civil law ; and if the decisions of cases were to turn upon such grounds, property would be very vague. The principles were not first laid down by Lord Thurlow, but extracted by him, with great wisdom, from those on which preced- ing chancellors have decided questions of this nature. I wish to refer to a case which I have not heard cited, Richardson v. Chapman, which was first heard before Lord Northington, and afterwards in the House of Lords. ^ It is accurately stated in 1 Burn's Ecclesiastical Law, tit. Bishops, which says that in this court a request in a wUl is, at this day, imperative; "but there ought to be a particular person named and pointed out." Let us see whether this rule be supported by the cases, or whether it be impugned by any. It is suflBcient to refer to Harland v. Trigg and Wynne v. Hawkins. With respect to the other cases cited, there is one very apposite to the question ; it is Palmer v. Scribb,^ where similar terms to those used in this case were held too general to amount to a devise. Though this book is not a book of the first authority, I must be guided by such cases as stand in point there ; and particularly by a case which contains so much sense as induces me to rely upon it, in conjunction with the other authorities. With respect to the authorities cited on the other side. Bland v. Bland falls within the rule. The property was not certain, being the whole of what he should be seised of at his death, and leaving him an absolute control over the property during his life. The case of Cunliflfe v. Cunliffe breaks in upon my opinion ; and, I admit, the decree I shall pronounce is in contradiction to it. It would be absurd to lay a stress upon " recommend" in the one case, and not upon " it is my dying request" in the other. The ground upon which I get rid of that case is, that the Lords Commissioners, in delivering their opinion, rested upon Bland v. Bland, and upon Pynsent v. Pynsent. This latter is not found, but, upon the note we have of Bland v. Bland, we may say that case was not like Cunliffe v. Cunliffe. Certainty of the property, though one of the sine qua nons, was wanting. As to Glynn v. Harding, it goes the whole length of the present case. The reasons are not f\A\y reported by Atkyns, but the words were, " I desire," and they were held imper- ative. Therefore, where the circumstances, of certainty of the prop- erty, and of the object to whom it is given, concur, all the cases warrant me in saying it is a trust, except Cunliffe v. Cunliffe, which cannot be relied upon, for the reasons mentioned. In Le Maitre v. Bannister, the words were, "to do justice to A. and her children; but, if anj' cir- cumstances should occur to make it necessary, the devisee was to be at liberty to dispose of it." There, one of the circumstances was want- ing ; for the devisee could dispose during his life. Mr. Ambler has I 5 Bro, I'arL Cas.'SlOO. 3 2 Eq. Abr. 291. VOL. I. 9 130 PIERSON V. GAENET. [CHAP. 11. pressed the difficulty and impracticability of carrj-ing the trust into execution. That argument has no weight with me ; because, if an express trust had been raised, it must have been executed, though it would have been attended with all the same difficulties and impractica- bilities stated in this case. However arduous the trust was, the court must have carried it into execution. The argument that, being once given, it cannot be given over, upon the reason that a fee cannot be mounted upon a fee, is begging the question ; for words creating a fee have, in innumerable cases, been cut down, by subsequent words, to an inferior estate. I think no stress can be laid on the words " exec- utors, administrators, and assigns ; " it would be equally reasonable to lay stress upon the former express estate for life. These reasons and authorities induce me to pronounce that the words are imperative, and create a trust in favor of the descendants of Anne Coppinger.^ 1 Affirmed by Lord Thurlow, 2 Bro. C. C. 226, who delivered the following opln- ion : " I see no great reason to doubt the propriety of the rule laid down by the Master of the Rolls. Where the object and the person are both certain, the rule must be ad- hered to. Harland v. Trigg. The only question in Cunliffe v. Cunliffe was, whether it fell within the rule. Where the words 'peto, rogo, opto, des,' &c., occur, they make a designation of the object, and the property must be applied according to that des- ignation. In this case, the devisee only takes an estate for life in the produce of the fund. The intention of the testator was, that, if he had children, he should take an absolute power of disposal ; if not, it should go to the descendants of his aunt. If the word used had been ' relations,' it would go to those within the Statute of Distribution (Green v. Howard, 1 Bro. C. C. 31, and notes) ; but, under these words, it would go only to such relations as are descendants, which is still more limited. The decree is right ; for the devisee may obtain an absolute power, and then there will be an end to it." In the following cases the language was held to be mandatory, and therefore to create a trust : — Burrell v. BurreU, Amb. 660 ; Mason v. Linbury, cited in Amb. 4 and 2 Ves. 67 (" I give to my brother, Robert Mason, £2,000, which I desire him, at his death, to give to his sou and his children, and to the children of his late daughter, as he should think fit"). Massey v. Sherman, Amb. 520 (Devise of copyhold to his wife in fee, "not doubt- ing but that my wife will dispose of the same to and amongst my children, as she shall please "). Richardson v. Chapman, 7 Bro. P. C. (Toml. ed.) 318. Parsons v. Baker, 18 Ves. 476 (Devise to a nephew, " not doubting, in case he should have no child or children of his own body, hut that he will dispose and give my said real estate to the female descendants of my sister, Deborah Parsons, of Kemerton, widow, in such part or parts and in such manner as he shall think fit, in preference to any descendant on his own female line "). WaLsh V. Wallinger, 2 Russ. & M. 78 (Devise of residue " unto his said wife, to and for her own use and benefit and disposal, trusting that she would thereout provide for and maintain his family, and particularly his eldest son ; and, at her decease, give and bequeath the same to her children by him, in such manner as she should appoint "). Gully V. Cregoe, 24 Beav. 185 (Devise to a wife, " for her own sole use and ben- CHAP, n.] MALIM V. KEIGHLEY. 131 MALIM V. KEIGHLEY. In Chancery, before Sir Eichard Pepper Arden, M. R., June 7, 1794. [Reported in 2 yesey, Jr., 333.] Thomas Lowe, by his will, gave £1,000 stock in trust to pay the interest and dividends to his daughter Anne Malim for life, for her separate use, and after her decease the principal among her children ; if no children, to sink into the residue. He gave £500 stock to Eliza- beth Thompson, and a similar sum to Sarah Lowe, two other daugh- ters ; and declared trusts, in failure of which those sums should sink into the residue. Then he gave all the rest and residue of his estate and effects whatsoever and wheresoever in trust, as to one-third for his daughter Lucy Rawlin, for her separate use for Hfe ; after her decease for her husband for hfe, and after his decease for the children ; as to another third, for Elizabeth Thompson, for her separate use for life, and after her decease for her children, with a proviso that, if she should survive her husband, and marry again, she might, by writing under her hand and seal, executed before such marriage in the presence of two witnesses, direct the interest, &c., to be paid, after her de- cease, to such husband for life ; as to the other third, for Sarah Lowe and her children in the same manner, and with a similar power in casie of her marriage ; and, in case either of these daughters should leave no chiMren, the share of such daughter was to go to the other two daugh- ters in the same manner, as their respective funds. "And, in case the whole of the residue of my personal estate shall become vested in any one of my said daughters, then I do give and bequeath the same after the expu-ation and determination of the seve- ral trusts beforementioned, unto such surviving daughter, her execu- tors and administrators, hereby recommending it to such daughter to dispose of the same after her own death, and the determination of the several trusts aforesaid, unto and among the children of my said daughter Anne Malim and my nephew John Lowe, of Feny Bridge, — desiring that his reputed daughter Emilia, though born be- fore maiTiage, may be considered as one of his children." The whole residue became vested in the testator's daughter Sarah, of the same fauly, justly, and equitably amongst my two daughters and their chil- dren "). Shoveltoni). Shovelton, SZBeav. 143 (Bequest of residue "unto my said dear wife, to and for her own absolute use and benefit, in the fullest confidence that she will dis- pose of the same for the benefit of her children, according to the best exercise of her judgment, and as family circumstances may require at her hands "). — Ed. 182 MALIM V. KEIGHLEY. [CHAP. U. who married Keighley ; and the question was whether, after her decease without issue and intestate, a trust arose for the children of Anne Malim and John Lowe. Mr. Lloyd, for the children of Malim and Lowe, plaintiffs. This was detei-mined in Pierson v. Garnet, which overturned Cunliflfe v. CunlifiFe.^ Mr. Graham and Mr. Abbott, for the defendant. There was no occa- sion to get rid of Cunliffe v. Cunliffe, in order to make that decision ; and what the Master of the EoUs saj's upon the word " recommend " is extra-judicial. There is a marked distinction between that word and " desire " or " request." The argument on this point always begins by saying, whether the clause is recommendatory or imperative. The court must go on the distinction between the words, which sometimes may be very fine. "Recommend" does not imply volition, but advice. Ux vi termini, it leaves the party to decide. The person recommending may be extremely indifferent about it. The testator could not mean by this recommendation the same thing as when he created a power by express words. The word comes from the French ; but if from the Latin, commendo, it means " I divest myself of all discretion, and put it entirely into your hands." From Le Maitre v. Bannister, 26th No- vember, 1770, it is plain the word " recommend " will admit a qualifica- tion, and does not absolutely impose an obligation. It has tacitly in it the qualification that the caution of the party in that case added ; and, if the party can give it that sense, the court maj% Suppose, in Pierson v. Garnet, where the word was " request," the will had gone on to say, " if he shall so please.'' Bull v. Vardy^ shows it is extremely impor- tant to show the effect of the particular words used. Mastek of the Eolls (Sir Eichakd Pepper Arden). I think, with Lord Kenyon, that Cunliffe v. Cunliffe is overruled ; that he meant to say he differed from the Lords Commissioners, and that he should be of the same opinion if the word had been " recommend." The question is, whether there is any difference between " recommend" and " it is my dying request," — whether the former is not equal to the latter. If I was deciding upon the weight of the words, I rather think " recommend" is stronger than " desire." A great stress is laid upon the word " dying; " but every request by will is a dying request. I will lay down the rule as broad as this : wherever any person gives prop- erty, aud points out the object, the property, and the way in which it shall go, that does create a ti-ust, unless he shows clearly that his desire expressed is to be controlled by the party, aud that he shall have an option to defeat it. The word " recommend" proves desire, and does not prove discretion. If a testator shows his desire that a thing shall be done, unless there are plain, express M'ords or necessary implication that he does not mean to take away the discretion, but intends to leave CHAP. II.] GIBBS V. EXJMSEY. 133 it to be defeated, the party shall be considered as acting under a trust. I will not criticise upon the words. " Recommend" is a request, and more. If I request a man to do anything, I recommend it; and vice versa. I do not know how to distinguish them ; therefore de- clare that the residue of the personal estate upon the death of Sarah Keighley without issue, and intestate, became a trust for the children of Anne Malim and John Lowe, in equal shares and proportions.* GIBBS V. EUMSEY. In Chancery, before Sir William Grant, M. R., Decem- ber 3, 6, 1813. [Beported m 2 Vesey & Beames, 294.] Ann Clarke, by her will, dated the 12th of December, 1809, having given to her executors her household goods, watches, trinkets, plate, and wearing-apparel, to be disposed of to such persons and in such proportions as they, or the survivor of them, should in their or his discretion think proper, devised and bequeathed her freehold, copyhold, 1 Affirmed by Lord Loughborough, 2 Ves. Jr. 529. In the following cases the language was held to be mandatory, and therefor? to cre- ate a trust, or power in the natare of a trust : Eeles v. England, 2 Vern. 466 ; Free. Ch. 200, s. c. (Bequest of £300 to E. H., " but my will and desire is that he will give the said £300 unto his daughter Susan at the time of his death, or sooner, if there be occasion for her better advancement and preferment "). Clifton V. Lombe, Amb. 519 (" In consideration that Lady Lombe has promised to give what I shall give her to her and my children at her death, I give her," &c.). Bute V. Stuart, 1 Bro. P. C. (Toml. ed.) 476 ; Tibbits v. Tibbits, 19 Ves. 656 ; Jac. 317, s. c. (Devise to a son, " And I do hereby recommend to my said son to continue his cousins J. T. and R. T. in the occupation of their respective farms in the county of Warwick, as heretofore, aud so long as they continue to manage the same in a good and hnsbandlike manner, and to duly pay the rents "). Horwood V. West, 1 S. & S. 387 (Testator gave everything by will to his wife, and recommended her by her wiU to give what she should die possessed of to certain persons named). Baker v. Mosley, 12 Jur. 740 (Bequest to A., " trusting that he would preserve the same, so that after his decease it might go to and be equally divided between his then present son and three daughters by his late wife Alice "). Ford V. Fowler, 3 Beav. 146 (Bequest to a daughter, " And I recommend to my said daughter and her said husband that they do forthwith settle and assure the said sum, together with such sum of money of his own as the said husband shall choose, for the benefit of my said daughter and her children "). Wace V. Mallard, 21 L. J. Ch. 355 (Testator gave his entire property to his wife, " in full confidence that she will, in every respect, appropriate and apply the same unto and for the benefit of all my children "). See Nowlan v. Nelligan, 1 Bro. C. C. 489, — Ed. 134 GIBBS V. EUMSEY. [CHAP. II. and personal estate to Henry and James Eumsey, their heirs, execu- tors, administrators, and assigns, upon trust to sell ; and out of the money to arise by such sale, together with all her ready money, &c., and all other her estate and effects, she bequeathed several legacies ; and among them £100 to each of her trustees for their care and trouble; and giving all her books to Henry Eumsey, to be retained by him, and divided amongst such of her friends as he should think proper, pro- ceeded thus : — " I give and bequeath all the rest and residue of the moneys arising from the sale of my said estates, and all the residue of my personal estate after payment of my debts, legacies, and funeral expenses, and the expenses of proving this mj will, unto ray said trustees and execu- tors (the said Henry Rumsej' and James Eumsey) , to be disposed of unto such person and persons and in such manner and form and in such sum and sums of money as they in their discretion shall think proper and expedient. And I do hereby declare my will and mind to be, that in case my said freehold, copyhold, and leasehold and personal estates hereinbefore mentioned shall fall short or not be sufficient for payment of all the said several legacies and bequests, sum and sums of money by me hereby given and bequeathed, that what shall fall short shaU be proportionably abated out of each legacy or sum of money herebj' given and bequeathed." And she appointed Henry and James Eumsey her executors. The personal estate being insufficient to pay the debts, the real estate had been sold ; and the questions were : 1st, Whether the executors, or the heir-at-law, or the next of kin of the testatrix were entitled to a sum of £1,095 8s. Ad., the surplus arising from the sale of the real estate ; 2d, Who was entitled to the sum of £530, the amount of the charitable legacies admitted to be void by the statute.^ Mr. Leach and Mr. Cullen, for the heir-at-law, contended that this could not be distinguished from Morice v. The Bishop of Durham ; the residuary clause creating a trust, the subject being the produce of real estate, must, according to Ackroyd v. Smithson,^ belong to the heir. Mr. Roupell, for the next of kin, observing that the executors throughout this will are clothed with the character of trustees, argued that the residue was personal estate ; that there was a partial intes- tacy; and therefore the next of kin were entitled, according to the Statute of Distribution. Mr. Richards and Mr. Stephen, for the executors. The case of Morice V. The Bishop of Durham was clearly a trust ; and the bishop in his answer disclaimed any beneficial interest. These defendants are trus- tees for the specific object alone of pajdng the debts and legacies. In effect the residue is absolutely given to them. The term " discretion" CHAP. H.] GIBBS V. KUMSEY. 136 imports merely such disposition as they themselves shall think fit ; ex- cluding the discretion of any other person. Considered as a power, it may be exercised in their own favor ; and if not exercised, the property belongs to them ; in either way excluding both the heir-at-law and next of kin. This is not to be distinguished from the case in Rolle,^ a devise to B. to dispose of at his will and pleasure ; which words pass a fee.^ A general power of disposition implies the absolute interest, as neces- sary to the exercise of the power. The word "trustees" in the residuary clause is merely descriptio personarum, not of their character. In principle this case is analogous to Rogers v. Rogers ' and Dormer v. Bertie.* The Master op the Rolls. It is clear that such part of the real estate as is given to charitable purposes belongs to the heir-at-law, and does not go either to the next of kin or the residuary legatee. The question then is as to what is not otherwise disposed of than by the residuary clause, which turns upon the point whether there is any trust imposed by that clause : if thero is, they cannot take beneficially, though the trust may be of so indefinite a nature that the court cannot carry it into execution. This testatrix, having created a trust to sell, gives manj^ particular legacies, and among them £100 to each of her two trustees for their care and trouble in the execution of the trusts of the wUl. That is undoubtedly sufficient to exclude any claim as execu- tors ; ° but they claim, not in that character, but under a direct dis- position to them as residuary legatees. The first words of the residuary clause amount clearly to an absolute gift to them ; as the mere circumstance of giving them the description of trustees and executors cannot make them trustees as to that part of her property expressly bequeathed to them. Then do the subsequent words import trust ? The testatrix has very frequently in the course of her will used the words " in trust ; " but those words are not introduced here : "to be disposed of unto such person and persons, and in such manner and form, and in such sum and sums of money, as they in their discretion shall think proper and expedient." I see nothing here but a purely arbitrary power of disposition accord- ing to a discretion which no court can either direct or control. It is not to be contended that, if the words were "to be disposed of ac- cording to their discretion," that would have qualified the preceding gift; then the efl'ect must be produced, if at all, by the interposed words, " to such person or persons, and in such manner and form, and in such sum and sums of money ; " but those are words perpetually 1 1 EoU. 834, 1. 12, E. Mo. 57 ; Bend. pi. 9. 2 See Comyns's Digest, tit. Devise, N. 4. » 3 P. Wms. 193. * Pr. Ch. 94. 5 Langham v. Sandford, 17 Ves. 435, and the references in the note (a), 443. 136 GIBBS V, EUMSEr. [OHAP. D. occurring in general powers of appointment ; and it was never con- ceived tliat such words, instead of conferring a power, raised a trust. If that were so, tliere would be no such thing as good general powers of appointment. They would be all void trusts ; for, if trusts at all, they must be void from the uncertainty of the objects. In the case of Morice v. The Bishop of Durham, there was an express trust to pay debts and legacies, and dispose of the residue, as therein mentioned ; and that was treated by the Lord Chancellor, as it had been here, as a case of express trust ; and the Lord Chancellor very clearly states the distinction between express trust for an indefinite purpose and those cases where, from the indefinite nature of the purpose, the court concludes that a proper trust could not be intended, — though words may have been used which, had the objects been definite, would by con- struction import a trust. His Lordship observes that the principle of cases of the latter description has never been held in this court applica- ble to a case where the testator himself has expressly said he gives his property upon trust. Supposing this testatrix, after this gift to the executors, had requested them to give the residue to such persons and in such manner as they may think proper and expedient, there would have been no trust, not- withstanding the words, on account of the uncertainty of the object. It is said the testatrix meant the executors to give this property to some- body, and not to enjoy it themselves ; but that might be said in every case of a bequest to give to objects not distinctly specified, and in every case of a general power of appointment. It would be necessary to show that these executors not only cannot enjoy it themselves, but have no right to appoint it to others ; as, whether they have the absolute prop- erty or only a power to appoint the residue, still the claim of the heir or next of kin is premature, until it shall be seen whether any appointment will be made. It was insinuated in the argument that this was proba- bly a secret trust for charity. If that were so, it would be void ; but there is nothing in the case entitling me to form such a conclusion. Therefore, neither the heir nor the next of kin have a right to call upon the executors to account for this residue.'' 1 In the following cases the words were held to create no trust, nor power in the nature of a trust : — Robinson'!). Dusgate, 2Vem. 181 (Bequest of £200, " to be at the disposal of his wife, in and by her last will and testament, to whom she shall think fit to give the same "). Maskelyne v. Maskelyne, Amb. 750 (Legacy to a brother, "to he disposed of by him by his will as he shall see fit "). Ex parte Payne, 2 Y. & C. Ex. 636. Southouse V. Bate, 16 Beav. 132 (Bequest of income to B. W., "And at her death that she might leave it to her children, or whom she might choose)." Shenbpj-rl «. TTnttirlDre. 9. .Tnbns & TT 7RR CHAP, n.} EAIKES V. WABD. 137 RAISES V. WARD. In Chanceet, before Sir James Wigeam, V. C, March 2, 7, 1842. [Exported m 1 Hare, 445.] The will of George Raikes, dated the 15th of November, 1838, was as follows : "I give to my dear wife Marianne aU my moneys, securi- ties for money, goods, chattels, and personal estate whatsoever, to the intent that she may dispose of the same for the benefit of herself and our children, in such manner as she may deem most advantageous. And I make and appoint my said wife sole executrix of this my wiU." The testator died, leaving his widow (the said Marianne) and eleven of their cliildren surviving. The bill was filed by the widow, for a decla- ration of the respective interests or herself and children in the personal estate of the testator, under the will. The children were defendants. Mr. Temple and Mr. G. L. Russell, for the widow, argued that she was entitled absolutely to the entire residuary personal estate.^ Mr. Boteler and Mr. Faher, for the defendants, contended that the bequest created a trust for the children. The authorities cited were Sprange v. Barnard,^ Andrews v. Partington,* Cooper v. Thornton,* Robinson v. Tickell,^ Hammond v. Neame,^ Hamley v. Gilbert,' Curtis V. Rippon,' Chambers v. Atkins,' Benson v. Whittam," Blakeney v. Blakeney,^^ Taylor v. Bacon, ^^ Wetherell v. Wilson," Woods v. Woods," Hadow V. Hadow,^^ Jubber v. Jubber,^' and 2 Roper, Tr. Legacies, 373. Vice-Chanoellor, after stating the facts. The plaintiff seeks the direction of the court, but submits that she is entitled to the property absolut-ely. The defendants insist that the plaintiff, either wholly or to some extent, is a trustee for them. In support of the plaintiff's case, it was argued, first, that the bequest to a person, the better to enable him to accomplish a given act or dis- Ralston v. Telfair, 2 Dev. Eq. 255 (Kesiduary bequest, "to be disposed of as my executors think proper "). In Buckley v. Bristow, 10 Jur. N. s. 1095, Sir "W. P. Wood, V. C, said (p. 1097) : " Lord Cottenham does not appear to have been altogether satisfied with Gibbs v. Rum- sey ; and I apprehend no case would be decided according to it, where the gift is not precisely and distinctly in the words there mentioned." — Ed. 1 The particular grounds which were the foundation of the arguments are distin- guished in the judgment. 2 2 Bro. C. 0. 588. " 3 Bro. C. C. 60. * 3 Bro. C. C. 186. 6 8 Ves. 142. 6 1 Swanst. 35. ' Jac. 354. 8 5 Madd. 434. 9 1 Sim. & Stu. 382. i" 5 Sim. 22. 11 6 Sim. 52. »2 g gi„_ iqC. i* 1 Keen, 80. w 1 M. & Cr. 401. 15 9 Sim. 438. 18 9 Sim. 503. 138 BAIKES V. -WAED. [CHAP. n. charge a given duty, vests the property in that person absolutely ; and, secondly, that a bequest to a person in terms which, according to the language of the reported cases, are precatory only, in behalf of certain objects of the testator's favor, does not create a trust, unless the amount of the fund to which the precatory words apply is also certain ; and that, where the legatee has power to dispose of the fund at pleas- ure, to an extent not defined by the will, no trust is created, but the property vests absolutely in the legatee. And it was said that the case before the court falls within the scope of both of the above principles. On the part of the children, it has been argued that the words of this will are not within the scope of the cases upon which the former proiJosition depends. The will, it was said, clearly creates a trust in favor of the children of the testator, unless the latter proposition, re- lied upon by the plaintiff, prevents the court from executing it. And, with respect to the latter proposition, the defendants have argued that the relation in which the testator, the plaintiff, and their children stand to each other, is such that, according to the decided cases, the court has the power to measure the extent of the plaintiff's obligations to her children, and that this power reduces the interest of the children to that certainty which the court requires. Of the reported cases which bear on the case before me, the first which I shall mention is Burrell v. Burrell,^ where the gift was to the wife of the testator, " to the end she might give his children such fortunes as she should think proper, or they best deserve." The wife made an appointment b}^ will ; and one of the children being dissatis- fied with it, filed his bill, insisting that the appointment was illusory. Lord Camden gave his judgment at large, and decided that the appoint- ment was not illusory. From this case, it is clear that the bequest was not, at that day, thought to be an absolute gift to the wife ; for, if that had been so, there would have been no question of illusory ap- pointment. In the case of Brown v. Casamajor,^ the bequest was of a sum of £7,000 to a father, " the better to enable him to provide for his younger children." The father consented to the order which was made for securing the capital, with liberty to the children to apply ; and afterwards, upon petition, the interest was ordered to be paid to the father for his life. From the language of the Lord Chancellor iii that case, it is clear, at that time, it was considered that the relatiou of parent and child was such that the court could, as between them, measure the extent of the trust. The case of Hanley v. Gilbert,' shows that, where the maintenance of the objects of the testator's favor is one of the purposes of the gift, that is a benefit which is capable of being measured. Thurston v. Essington,* also, does not exclude main- tenance as a well-constituted trust. The words of the gift in Broad v. CHAP, n.] RAIKES V. WARD. 139 Bevan^ were very indefinite. "I give and bequeath to my daughter Ann, now living with me, the sum of £5 a year for her life, payable half-yearly by my executor. I also order and direct mj^ son Joseph to take care of and provide for my said daughter during her life." And the testator made his son residuary legatee and executor. In that case, it was held that the daughter had a beneficial interest, and a reference was directed to the Master. I have a note of an unreported case of Roberts V. Smith, which was before Sir J. Leach, where the residuarj- real and personal estate was given to trustees, as to half, for the wife for her life, for the support of herself and the education of her children. The point, I believe, was not decided by the court ; but Mr. Bell advised that a trust was created for the benefit of the children. Wetherell v. Wilson '^ is a very strong case. The interest of a fund was directed to be paid to the husband, in order the better to enable him to maintain the children of the marriage until their shares should become assign- able to them. The husband assigned all his property to trustees for the benefit of his creditors ; and it was held that there was a trust for the children, and, therefore, that the interest of the fund did not pass under the assignment. This, I presume, was on the ground that the court could measure the extent of the obligation which was imposed upon the husband by the words of the instrument. In all these cases, the court, without laying down any positive rule, has referred* it to the Master to inquire of the extent and manner in which the intended gift should be applied for the benefit of the parties indicated. It is true that the court has, in these cases, very commonly ordered the fund to be paid to the legatee. But, upon that point, the Lord Chancellor, in the case of Woods v. Woods,' made important observa- tions. The testator, after directing a sale of his property (if neces- sary) to pay his debts, said, " If sold, all overflush to my wife, towards her support, and her family, if any there be." The point argued upon demurrer was that the wife took absolutely. In that case the Lord Chancellor said, " It is clear that, if the contemplated event took place, a trust as between the widow and the children would be created. The cases which were cited to support the demurrer have no application to this point. They only decide that, where a gift is made to a person, and a trust created in that person, the court may safely and properly pay over the fund to the individual who is such trustee ; but they are far from deciding that the person to whom the paj'ment is so to be made in that character shall not be accountable for the fund to those for whose benefit the trust is created." " Now, I have already stated it to be my clear opinion that, in a certain event, — the event, namely, of a sale, — the widow would take the property subject to a trust, and that that trust would be not only for the eldest son, but also for the 1 1 Rus3. 511, n. (a). ^ i geen, 80. » 1 Myl. & Cr. 401. 140 BAIKES V. "WAED. [CHAP, n. Other members of the family." The Lord Chancellor, therefore, only said it was true that, where the fund was given to the parent to provide for the children, the fund might be safely paid to the parent ; ^ but he decided that a trust was created for the benefit of the children. In addition to those I have mentioned, there are the cases of Cham- bers V. Atkins,^ Foley v. Parry,' Hadow v. Hadow,* Jubber v. Jubber.^ I cannot but consider these authorities as raising a formidable obstacle to the plaintiflTs claim to an absolute interest in the property of the testator. At the same time, I have no hesitation in stating, that, to whatever extent the widow or family of Mr. Raikes maj' have an in- terest in his estate, after satisfying the paramount claims of creditors, the court will not deprive the widow of the honest exercise of the dis- cretion which the testator has vested in her, or refuse its assistance to inquire into or to sanction anj' reasonable arrangements which she may desire to make. Further than this I cannot go in the present state of the cause. ° "When the proper time for distributing the estate shall have arrived, it may perhaps deserve consideration (although I mean not to express any opinion upon the point) how far the late statute 1 Will. IV. c. 46, may have enlarged the power of Mrs. Raikes as between her and her children, supposing she should be held a trustee for them. The only decree I now can make is the usual decree for an account, in order to clear the fund.' 1 Cooper V. Thornton, 3 Bro. C. C. 96, 186 ; Robinson v. Tickell, 8 Ves. 142 ; Curtis V. Rippon, 5 Mad. 434 ; Jones v. Greatwood, 16 Beav. 527 ; Briggs v. Sharp, L. R. 20 Eq. 317, accord. — Ed. 2 1 Sim. & Stu. 382. » 5 Sim. 138. Affirmed on appeal, 2 Myl. & K. 138. < 9 Sim. 438. ' 6 g gim. 503. ^ The bill was filed solely to obtain the declaration of the court upon the above point ; and, after the argument, it appeared that the accounts had not been taken, and it was admitted that some debts remained unpaid. His Honor said, that, without lay- ing it down as a general rule, in no case could the court safely declare the rights of the parties until the fund was cleared in respect of which the declaration was to be made ; yet, in this case, although he had expressed his opinion on the point on which the par- ties desired his judgment, he would make no declaration until the fund was ascer- tained. " In the foUowiug cases it was held that the donee took beneficially, subject to an obligation in favor of a third person. Haraley v. Gilbert, Jac. 354 (Gift to A. upon trust to pay certain moneys to a niece, which moneys " should be laid ont and expended by her, at her discretion, for or to- wards the education of her son, F. G. H., and that she should not at any time there- after be liable and subject to account to her said son, or to any other person whatever, for,"&c.) Foley V. Parry, 2 M. & K. 138 ; 5 Sim. 138, s. c. (Residuary bequest to testator's wife for life, remainder to a grand-nephew, "W. W. F. " It is mv Darticular wish and CHAP, n.] BAIKE3 V. WARD. 141 superintend and take care of Ms education, so as to fit him for any respectable profession or employment "). Berkeley v. Swinburne, 6 Sim. 613 (Devise to trustees in trust for a sister's children, the trusts to vest upon the majority or marriage of each, the income to be paid to the sister (or guardian of the children) prior to the vesting, "to be applied in and towards the maintenance and education of such child or children respectively, or otherwise for their respective use and benefit "). Camden v. Benson, 4 L. J. Ch. N. s. 256 (Bequest of income to testator's wife dur- ing her life, "in support of herself and three children"). Woods V. Woods, 1 M. & Cr. 401 (Devise to a wife for the payment of debts, "all overflush to my wife, towards her support and her family, if any there be "). Hadow V. Hadow, 9 Sim. 438 (Devise to trustees upon trust to pay to testator's sons at twenty-one, and in the mean time to pay the income to " my said dear wife J. H., to be by her applied, or, in case of her death, to be applied by my said trustees . . . for and towards the maintenance, education, and advancement in life of my said sons ... in such manner as she or they shall think proper "). Gilbert v. Bennett, 10 Sim. 871 (Devise to trustees upon trust to pay the income "unto my said wife for the education and advancing in life of anychUdren she may have born by me . . . and after her death, the whole of the said property ... to be divided equally . . . among my said children "). Page V. Way, 3 Beav. 20 (Settlement by F . J., upon trust to receive and pay income " unto or for the maintenance and support of the said F. J., his wife and children ; or otherwise, if the trustees should so think proper, permit the same rents, &c. , to be re- ceived by the said F. J. during the term of his natural life "). Wood V. Richardson, 4 Beav. 174 (Devise to a wife, "absolutely and at her own disposal, for the maintenance of herself and bringing up of my children "). Leach 1). Leach, 13 Sim. 304 (Bequest of leaseholds to J. 0., upon trust to pay an annuity of £200 to testator's daughter E. , the wife of T. L., for life, afterwards to T. L., " to enable him to maintain and educate all and every the child and children of the said E., and for their advancement in life until the youngest should attain twenty-one ; " and in case of T. L.'s death, upon trust for J. 0., "to apply the same in Uke manner as T. L. was thereby directed to do "). Longmore v. Elcum, 2 Y. & C. C. C. 363 (Devise to A. in trust to permit testator's wife to receive the income "for her own use and benefit, and for the maintenance and education of my dear children so long as she, my said wife, shall continue my widow and unmarried"). Bowden v. Laing, 14 Sim. 113 (Bequest of income of certain property to testator's wife for life, " for the maintenance of herself and children"). Conolly V. Farrell, 8 Beav. 347 (Bequest to testator's wife for the use of his wife and daughter, subject to the trust "that his wife and daughter should live together, and that his wife shall take charge and see to the maintenance and support of his daughter during her minority, with the instruction of C"), Costabadie v. Costabadie, 6 Hare, 410. Crockett v. Crockett, 2 Phill. 553 ("All and every part of my property shall be at the disposal of my most true and lawful wife C. C. , for herself and children "). Leigh V. Leigh, 12 Jur. 907 (Residuary devise upon trust to pay the income "unto my said wife so long as she shall continue my widow, for the purpose of enabling her to bring up, educate, and maintain my children "). Brown v. Paull, 1 Sim. N. s. 92 (Devise to trustees upon trust for his children when they should attain twenty-one, and in the mean time " to pay unto my said wife, or otherwise apply the rents and proceeds ... for or towards their respective main- tenance, education, and advancement"). Hart V. Tribe, 18 Beav. 215 ; 1 De G., J. & S. 418, s. c. (Bequest of £4,000 to a 142 EAIKES V. WAED. [CHAP. II. wife "to be used for her own and the children's benefit, as she shall in her judgment and conscience think fit"). Carr v. Living, 28 Beav. 6ii ; 33 Beav. 474, s. c. (Bequest of income to a wife for life, "for the maintenance and support of herself, and maintenance, education, cloth- ing, and support of such child or children," &c.). Scott V. Key, 35 Beav. 291 (Bequest to a wife, "to be at her sole and entire disposal for the maintenance of herself and such child or children as he might have by her "). Dixon V. Dixon, W. N. (1876), 225 (Testator gave annuities to his son and daugh- ters, " for their own use and support of their children "). Cockrill V. Armstrong, 31 Ark. 580 (Bequest to sons, "having full confidence in my sons aforesaid, and in their disposition to deal fairly, justly, and liberally, I leave it to them to make proper and suitable provision for their sisters "). Bristol V. Austin, 40 Conn. 438 (" I give all my estate ... to my beloved wife L,, for her life, to be used in the support of herself and my children," with power to sell, &c.). Hunter v. Stembridge, 12 Ga. 192 (Devise to a son and bequest of negro woman to a wife, " and I allow my son H. to give her a support off my plantation dm'ing her life- time.") Heard v. Sill, 26 Ga. 302 ; Cole v. Littlefield, 35 Me. 439 (Bequest of income to a wife, "to be appropriated to the use of my beloved wife for her own and our children's support," &c.). Tolsou V. Tolson, 10 Gill & J. 159 (Devise to sons, "I request my seven sous above named to take care of their brother J. T.," &c.). Chase v. Chase, 2 All. 101 (Devise upon trust to pay the income to a son, "for the support of himself and his family and the education of his children "). Warner v. Bates, 98 Mass. 274 (Bequest of income to husband for life, " in the full confidence that he will, as he has heretofore done, continue to give and afford my children such protection, comfort, and support as they or either of them may stand in need of"). Lucas V. Loekhart, 18 Miss. 466 (Devise to a wife during widowhood, "During . . . widowhood she is to have the entire use, profits, and control of my estate, and to her discretion do I intrust the education and maintenance of my children during that time." After the wife's death the children were to be supported out of annual profits of testator's estate). Eriekson v. "Willard, 1 N. H. 217 (Devise to J. W., "I desire that the said J. W. should, at his discretion, appropriate a part of the income of my estate aforesaid, not exceeding $50 a year, to the support of M. E."). Ward V. Peloubet, 2 Stockt. 304 ; Little v. Bennett, 5 Jones Eq. (N. C.) 156. Conf. Crockett v. Crockett, 5 Hare, 326 ("My last desire is, that all . . . my property shall be at the disposal of my . . . wife C. C, for herself and children"). But see 2 Phill. 553, s. c. Loring v. Loring, 100 Mass. 340 (" I give to my wife my personal property for her benefit and support and the support of my son, whilst she remains unmarried "), in which cases it was held that the donee took property in trust for herself and others in equal shares. See also Godfrey v. Godfrey, 2 N. E. 16, and conf. Chambers v. Atkins, 1 S. & S. 382. In 'Wetherell v. Wilson, 1 Keen, 80 (Bequest of income to a husband, "in order the better to enable him to support, maintain, and educate " testator's children), it was held that the husband took no beneficial interest whatever. In the following cases it was held that the donee acquired the property subject to a moral but not legal obligation towards third persons : CHAP, n.1 EAIKES V. WARD. 143 him to assist such of the children of my deceased brother B. as he, the said A., may iind deserving of encouragement "). Thorp V. Owen, 2 Hare, 607 ("I desire everything to remain in its present position during the lifetime of my wife, for her use and benefit. ... I give the above devise to my wife that she may support herself and her children according to her discretion, and for that purpose "). Macnab v. Whitbread, 17 Beav. 299 (Devise to a wife " absoWtely, and forever, in the full assurance and confidence and hope that she would bring up his children in the fear of God, and educate and provide for them, the same as it would have his intention, should it have pleased God to spare his life "). Byne v. Blackburn, 26 Beav. 41 (Bequest of income to a son-in-law during his life, "nevertheless to be by him applied for or towards the maintenance, education, or bene- fit " of the daughter's children). Fox V. Fox, 27 Beav. 301 (Residuary devise to a wife, " to and for her own use and benefit, absolutely, having full confidence in her sufficient and judicious provision for my dear children "). Mackett v. Mackett, L. R. 14 Eq. 49 (Bequest to a wife, "to and for her own proper use and benefit forever . . . and the proceeds to be applied by her in the bringing up and maintenance of the said J. M., and all other the children of the said S. M."). Greene v. Greene, 3 Ir. R. Eq. 90, 629 (Bequest to a wife, "well knowing her sense of justice, and love to her famUy, and feeling perfect confidence that she will manage the same to the best advantage for the benefit of her children "). M'Alinden v. M'Alinden, 11 Ir. R. Eq. 219 (Devise to a wife, " to be used by her in such ways and means as she may consider best for her own benefit and that of my three children " ) . See also Brown v. Casamajor, 4 Ves. 498. Harper v. Phelps, 21 Conn. 257. Spooner v. Lovejoy, 108 Mass. 529 (Residuary devise to a vrife, " to her own use, and to be disposed of at her decease, according to the terms of any will that she may leave. She is, of course, to charge herself with the education and support of our daughters E., E., and M., so long as they shall remain unmarried "). Paisley's Appeal, 70 Pa. 153 (Bequest of income to wife for Ufe, "for her support and the support and education of my children under the direction of my executors "). Biddle's Appeal, 80 Pa. 258 (Bequest of income to a wife during widowhood and mi- nority of testator's children, " to be used and applied by her to the maintenance, support, and education of my children who may be under age, but without being called upon to give any account of the manner in which she may have applied it, as it is my wish that she shall have the absolute control of its use and disposition so long as she shall remain my widow "). Lesesne v. Witte, 5 S. C. N. s. 450 (" I devise all my estate to my beloved wife, feeling entire confidence that she will use it judiciously for the benefit of herself and our children "). Ehett V. Mason, 18 Graft. 541 ("I devise all my estate ... to my beloved wife B. C. M., for her maintenance and support, and for the maintenance and support of onr children during her life and widowhood "). — Ed. 144 KNIGHT V. B0T7GHT0N. [CHAP. H KNIGHT V. BOUGHTON. In the Hocse dr Lords, Mat 1, 9, 15, 22, 23, 26, 30, 1843, Sep- tember 4, 1844. [Reported in 11 Olark & Finnelly, 513.J September 4, 1844. The Lord Chancellor.^ The question in this appeal, which was argued before your Lordships in the last session, arose upon the will of the late Richard Payne Knight. He had suc- ceeded to a large real estate and to considerable personal property under the will of his grandfather, Richard Knight. These, with other real estates and other personal property, he bequeathed " to his brother Thomas Andrew Knight, should he be living at the time of his (the tes- tator's) decease, and if not to his son Thomas Andrew Knight the younger ; and in case he should die before the testator, to his eldest son or next descendant in 'the direct male line ; and in case he should leave no such descendant in the direct male line, then to the next male issue of the testator's said brother, and his next descendant in the direct male line ; " but," he adds, " in case no such issue or descendant of my said brother or nephew shall be living at the time of my decease, to the next descendant in the direct male line of my late grandfather, Richard Knight, of Downton, according to the purport of his will, tinder which I have inherited these estates, which his industry and abili- ties had acquired, and of which he had, therefore, the best right to dispose." This property so bequeathed was given in fee. The will, in a subsequent part of it, contained this clause : " I trust to the liberality of my successors to reward any others of my old ser- vants and tenants, according to their deserts ; and to their justice, in continuing the estates in the male succession, according to the will of the founder of the family, my above-named grandfather, Richard Knight." The question is, whether, by the words " I trust to the justice of my successors in continuing the estates in the male succession," &c., a trust was created ;' or whether the testator intended to leave a discre- tion in the persons whom he calls his successors with respect to the dis- posal of their property. The law upon questions of this nature is well laid down by Lord Alvanley, in Malim v. Keighley. " Wherever," he says, " any person gives property, and points out the object, the prop- erty, and the way in which it shall go, that does create a trust, unless * All that is material to the understanding of the case being contained in the judg- ment of the court, the rest of the case is omitted. — Ed. CHAP. II.] KNIGHT V. B0U6HT0N. 145 he shows clearly that his desire expressed is to be controlled by the party, and that he shall have an option to defeat it." I have shared the doubt expressed by the Master of the Rolls, in his judgment in this case ; ^ but I have come to the conclusion, upon con- sidering the whole of the will, that the testator had no intention to create a trust ; that no trust has in fact been created ; and that it was in the discretion of the devisee, Thomas Andrew Knight, to dispose of the property as he should think proper. I do not think that the testator intended to control his successors in the disposal of the property, but to leave the whole to their discretion. In the very clause in question, the testator ' ' trusts to the liberality of his successors to reward any others of his old servants and tenants, according to their deserts." This, it is clear, does not raise a trust : it creates no legal obligation ; and when the testator, therefore, goes on and expresses his trust in "their justice, in continuing the estates in the male succession, according to the will of the founder of the family," it would be difficult to suppose that he intended to create a different description of obligation. He had himself suffered a recovery of the estate to which he had succeeded under the will of his grandfather, and therebj' converted the entail into an estate in fee-simple. Bj' his will he disposed of this to the nearest male descendant of his grandfather who should be living at his own death. He then gave him the power of acting as he himself had done in furtherance of his grandfather's view ; and he might, and proba- bly did, suppose that this mode of disposing of the property would be more effectual for that purpose than any special limitation of it that the law would permit. Another observation arising out of the clause is, that it is not con- fined to his immediate successors, but is without limit. As he must have known that such an injunction could not be imperative on his suc- cessors generally, he must, I think, have meant it as a mere sugges- tion, applicable in the same way to his immediate as to his more remote successors, and not intending thereby to fetter their discretion as to the disposal of the propertj'. Another argument in support of this view arises out of the language of the clause as to the property to which it refers. It is not clear to what it applies. By the use of the word " continuing," it would seem to be confined to the estates which the testator took from his grand- father ; but this is by no means clear. It is, doubtful, too, whether it includes the personal as well as the real estate. This vagueness is not inconsistent with the intention that everything should be left to the dis- cretion of the successors, but is not easily reconcilable with the inten- tion of imposing a positive obligation upon them. This obscuiity as to the property to which the clause was intended to ' 3 Beav. 175 et seq. VOL. I. 10 146 KNIGHT V. BOUGHTON. [CHAP. H. apply, and the circumstance that an indefinite portion of the personal estate was subject to be disposed of according to the liberality of his successors, raise another difficulty in the way of considering this as an imperative trust. Then as to the nature of the estate to be taken in the property, sup- posing the property itself to be sufficiently ascertained, what is there to guide the court in determining it? The testator has said nothing upon the subject. This affords a further reason against the supposition that the testator intended to impose an imperative obligation on his successors as to the settlement of the property. Referring, then, to the rule stated by the learned judge (Lord Alvan- ley) to whom I have referred, there is, I think, too much uncertainty in this disposition to admit of a trust being raised in the devise with re- spect to any part of the property in question ; and, considering the terms that the testator has used, in connection with the other circumstances to which I have adverted, I am persuaded he had no intention to do so. I recommend j'our Lordships, therefore, to affirm this judgment. Lord Brougham. I heard the argument in this case ; and I take the same view of it as that which has been expressed by my noble and learned friend. With respect to the precatory words, I had some doubt at first, but on further looking into the case these doubts have been removed ; and, on the whole, I agree with my noble and learned friend in thinking that this judgment ought to be affirmed. Lord Cottenham. I concur in thinking that the decree in this case ought to be affirmed. I adopt the rule as laid down by Lord Alvanley in Malim v. Keighley ; and I think this case comes within the exception he there lays down. His words are thus reported : " Wherever a per- son gives property, and points out the object, the property, and the way in which it shall go, that creates a trust, unless he shows clearly that his desire expressed is to be controlled by the partj-, and that he is to have an option to defeat it." " If a testator shows his desire that a thing shall be done, unless there are plain, express words or necessary impli- cation that he does not mean to take away the discretion, but intends to leave it to be defeated, the party shall be considered as acting under a trust." I will not consider whether the testator has sufficiently- described the property or exjiressed the way in which it should go ; because, assum- ing that he has done so, I think there is sufficient upon the face of this will to show that he did not intend to take awa}' from the devisee the discretion of defeating the devise he expressed. Having by his will expressed his sense of the justice of continuing the estate in the male succession, according to the will of his grandfather, it must be as- sumed that he conceived the obligation to be binding on himself; and CHAP, n.] KNIGHT V, BQUGHTON. 147 a son at the time he made his will ; but, so far from himself limiting the succession of the estates, according to the will of his grandfather, he gives absolute estates to his brother and to his brother's son, but only in the event of his brother not being alive at the time of his own death ; and he makes provision in terms for the nest descendant in the male line of his grandfather, only in the event of there being no issue male of his brother at the time of his own death. Such next descendant in the direct male line of his grandfather was to take according to the pur- port of his (the gi-andfather) will ; but there was no such direction as to his brother or his brother's sons. He, no doubt, assumed that the sons of his brother and their issue male would, in due succession, enjoj^ the propertj^ ; but not doubting but that such would be the case, he took no means to secure it, unless the provision at the close of his will faad that effect ; and if it had, all would have taken immediate interests in remainder under the will, and not absolute interests, such as he gave to his brother and his brother's son, in certain events. It is an observation incident to all trusts created by precatory words, that the testator might, if he had intended, have created an express trust ; but there is a peculiaritj' in this case which seems to give pe- culiar force to that observation : the testator must have been aware of his own legal power over the property obtained bj^ his own act (the recovery he had suffered) ; but he felt bound bj' a moral obUgation to give effect to the supposed wishes of his grandfather. To effect that, he must have intended either to subject his successors to the same moral obligation, and so to effect his object through their acts, or to secure it bj' his own. The provisions of his will are precisely calcu- lated for the first purpose, but are inapplicable to the second. An act which is to depend upon the sense of justice of another must be discre- tionary in the person from whom it is to proceed. In ordinary cases, the testator must be supposed either to have considered his recom- mendation as equivalent to a command or as imposing a condition upon the gift, — both of which exclude the idea of discretion, which is in the present case necessarily implied. This construction is, I think, strengthened by the clause which re- lates to the donation he gave to the poor and others out of his estate. He intended that those directions should be imperative ; and with this view he declared " that the person who should inherit his estates under his will should be his sole executor and trustee, to carry the same and ever3'thing contained therein duly into execution." But apprehending that there might be some technical inaccuracies fatal to the legal valid- ity' of these gifts, he in that case expresses his " confidence in the ap- proved honor and integrity of his familj' to take no advantage of any such technical inaccuracy', but to admit all the comparatively small resei-vations he had made out of so large a property, according to the 148 KNIGHT V. BOUGHTON. [CHAP. n. plain and obvious meaning of his words," — terms very similar to those by which he expresses his wishes as to the line of succession to his estates, but very different from those in which he gives directions which he intended to be imperative. I think, for these reasons, that the testator contemplated, and, in the words of Lord Alvanley, intended that the desire he expressed should be subject to the control of those who might succeed to his estates, and liable to be defeated at their discretion and option ; and consequently that the judgment of Lord Langdale was right, and ought to be affirmed. Lord Campbell. Having been counsel in this case, I have regarded my own opinion upon it with a good deal of distrust, although that opinion was very stronglj"^ in favor of the decree ; but now, having heard the opinions of the noble and learned Lords who have preceded me, I have no hesitation in saying that I do not entertain the smallest doubt that the decree was right, — feeling strongly that the testator had not the remotest notion that there was to be any resort to a court of justice to keep the estate in the family, but that those precatory words were considered bj* him as intimating what he desired that the settle- ment should be. I can hardlj' say that that is a strict settlement, be- cause that is not at all the model on which such a settlement should be framed. It has caused great confusion in this particular case, and might tend, 1 think, to unsettle the law upon the subject. I therefore heartily concur in the motion that the judgment be affirmed. The decree was accordingly affirmed, and the appeal dismissed.' ^ In the following cases the words were held to be precatory, and therefore to ereats no trust or power in the nature of a trust : — Bnggins v. Yates, 9 Mod. 122 (Testator did not douht but his wife would be kind to his children). Sale V. Moore, 1 Sim. 534 (Residuary bequest to a wife, " recommending to her, and not doubting, as she has no relations of her own family, but that she will consider my near relations . . . as I should consider them "). Bardswell v. Bardswell, 9 Sim.. 319 (Bequest of everything to a son, " for his own use and benefit, well knowing he would discharge the trust the testator reposed in him by remembering the testator's sons and daughters " ) . Palmer v. Simmonds, 2 Drew. 221 (Residuary devise to a nephew, "for his own use and benefit, as I have full confidence in him that, if he should die withont lawful issue, he will . . . leave the bulk of my said residuary estate unto the said W. F. S., J. S., and T. E. S. equally "). In re Bond, 4 Ch. D. 238 (Residuary bequest to a wife, " And for my dear wife, A. B., to do justice to those relations on my side .such as she may think worthy of remunera- tion, but under no restriction as to any stated property, but quite at liberty to give and distribute what and to who my dear wife may please "). Creagh v. Murphy, 7 Ir. K. Eq. 182. — Ed. CHAP. II.] BKIGGS V. PENNY. 149 BEIGGS V. PENNY. Ik Chancery, before Lord Truro, C, June 7, 9, 10, November 7, 1851. [Reported in 3 Maanaghten Boson V. Statham, 1 Eden, 508 ; Briggs v. Penny, 3 De G. & Sm. 525 ; Thayer V. Wellington, 9 AIL 283, accord. — Er. VOL. I. 14 210 JtJNIPEE V. BATCHELOK. [CHAP. lU, relied with Caffyn. Penfold said he promised to be the testator's executor, and testator said " there would be letters found," but did not explain what he meant. On the 12th of July, 1866, the testator's real and personal estate was conveyed by the four trustees to a trustee for the three who had proved the will. Kay, Q. C, and Ince, for the plaintiffs. Bruce, Q. C, and G. iV^. Colt, for the defendants, the devisees, and Wickens, for the defendant, the Attorney-General, were not called upon. The Vioe-Chancellor said he did not think the communications had gone far enough to bring the case within the authorities which had been cited. The testator asked these devisees to be his executors. They said they would. Nothing intelligible was said about letters ; nothing about the will of the testator ; nothing about his intention. If there had been no letters, it was conceded that the devisees would have been entitled. Then how could it be contended that they made any differ- ence, if they were not communicated in some shape or form to these persons ? Some knowledge must be made out of the testator's inten- tion, sufficient to have made it a fraud for these devisees to retain the property. Nothing of that kind had been established ; and the bill must be dismissed with costs.^ I WaUgrave v. Tebbs, 2 K. & J. 313 ; Tee v. Ferris, 2 K. & J. 354, accord. —Ed. SECT. I.] CAEKICK V. EBEINGTON. 211 CHAPTER IV. RESULTING TRUSTS. SECTION I. Where an intended Trust cannot take Effect. ANONYMOUS. ' Ik Chanceet, before Lord Parker, C, Michaelmas Term, 1720. [Reported, in Gomyns, 345.1] A MAN seised in fee made a settlement of lands to trustees and their heirs, upon trust that they should seU the lands, and pay out of the money arising therefrom such particular sums to such particular per- sons, and the residue (after the sum of £200 to be paid to such person as he by any> writing under his hand should direct) to B., his executors or administrators, and afterwards died without any direction for the pay- ment of the £200. It was resolved that B. should not have the £200, but the heir of him who made the settlement." CARRICK V. ERRINGTON. In Chancert, before Lord King, C, Trinity Term, 1726. [Reported in 2 Pere Williams, 361.] Edward Errington, seised in fee of lands in Northumberland, by lease and release in 1714 settled the same to the use of himself for life, 1 s. c. Tiom. Emblyn v. Freeman, Prec. Ch. 541. — Er. "In Collins v. Wakeman, 2Ves. Jr. 683, Fitch v. Weber, 6 Hare, 145, Flint v. Warren, 16 Sim. 124, Att'y-Gen. v. Dean, 24 Beav. 679, 8 H. L. 369, property being given upon trusts to be declared, and the trusts not being afterwards declared, there was a resulting trust. In Taylor v. Haygarth, 14 Sim. 8, for the same reason, there being no heir or next of kin of the testator, the real estate went to the trustee and the personal estate to the crown. In Brown v. Jones, 1 Atk. 188, Sydney v. Shelley, 19 Ves. 352, a limitation to trus- tees for a term of ninety-nine years, upon trusts to be declared, was held to create a trust term to attend the inheritance, although no trust was declared, since otherwise the general purposes of the instrument would have been defeated. — En. 212 CAEEICK V. BEEINQTON. [CHAP, IV, remainder to his first, &c., son in tail male successively, remainder to Thomas Errington a Papist for life, remainder to trustees and their heirs during the life of Thomas Errington the Papist to preserve con- tingent remainders, remainder to his first, &c., son in tail male suc- cessively, remainder to William Errington a Protestant for life, remainder to trustees and their heirs during the life of "William Erring- ton to preserve, &c., remainder to his first, &c., son in taU male suc- cessively, remainder to his own right heirs. Edward Errington died without issue, leaving sisters who were his heirs-at-law and Protestants ; and one of the questions was, what should become of this estate, and who should take the profits thereof during the life of Thomas Errington the Papist, whether the heir-at-law of Edward the grantor, or the remainder-man? And first it was ruled by Lord Chancellor, and given up by the counsel on aU sides, that since the great case of Eoper and Radcliffe,' which was resolved in the House of Lords, the latter clause of the statute of 11 & 12 Will. III. cap. 4, for preventing the growth of Poperj', and which disables a Papist from taking any laud, or trust or interest in or out of land, by purchase, must not only be understood to prevent a Papist from buying lands, but also to disable him from taking any lands by purchase, and therefore in the aforesaid case, where the devise was of lands to be sold for the payment of debts, and the sm-- plus to the Papist, forasmuch as the Papist would be entitled to the surplus of the estate, paj-ing the debts, this was construed a void de- vise as to the Papist. 2dly, That if the case were no more than that lands were limited by lease and release to the use of A. a Protestant for life, remainder to B. a Papist for life, remainder to C. a Protestant, and A. dies, in such case the remainder to B. the Papist being void, the next remainder to C. shall take effect presently, in the same manner as if a remainder were limited to a monk for life, or to one who refuses to take ; or if such remainder-man were dead, and there had never been such limi- tation." In the next place, the court declared that the said statute extending to trusts as well as legal estates, the remainder limited to trustees to preserve contingent remainders, as to such part and so much as was declared to be in trust to let Thomas Errington the Papist take the rents and profits during his life, was a void trust ; but that the trust to preserve contingent remainders to the first, &c., son of Thomas Erring- ton the Papist was good. 3dly, In the principal case it was held, that in regard if the estate should go to the subsequent remainder-man William Errington the » 9 Mod. 167, 181 ; 10 Mod. 230, and 1 Bro. P. C. 450. * Fide Thornty v. Fleetwood, 1 Stra. 318. SECT. I.] CAREICK V. EEEIN6T0N. 213 Protestant, it could not afterwards go back to anj' sons of Thomas Errington the Papist who might be Protestants ; and this being a hard- ship and wrong to a third person, therefore the rents and profits of this estate, during the life of Thomas Errington the Papist, ought to go back to the sisters and heirs-at-law of Edward Errington the grantor, and that these sisters and heirs-at-law of Edward Errington being Prot- estants, should have the rents of the premises from the death of Edward Errington the grantor. Notwithstanding it was strongly objected, that the convej'ance being by way of lease and release, the whole estate passed out of the grantor, and could not return to him again, but must go to the next in remainder capable of taking ; and further, that since this was a trust in the trus- tees during the Kfe of Thomas Errington the Papist, and a trust was a creature of equity, the court, which had the power and direction thereof, ought to let William Errington the next remainder-man into the posses- sion of the premises, and that in case Thomas Errington the Papist should leave Protestant sons, then the court would order the trust for the benefit of such son, and secure the profits to him. But Lord Chancellor said, this would be making use of an extraordi- nary power of directing and displacing estates, which he would not take upon himself to do ; and that the intent and meaning of the statute was in a more plain and easy manner complied with, by construing the estates and trusts to be void, as to the Papist only, but not to let the next Protestant remainder-man into possession before his time, so as to prejudice or endanger a third person, the son or sons of Thomas Errington the Papist, &c., wherefore let the heir-at-law of the grantor take the estate for so long a time only, as the same is undisposed of by the grantor.^ 4thly, It was held that as to the former- clause of this statute, which disables Papists from taking by descent, unless they conform within six months after eighteen, if they (the Papists) were above six months after eighteen before the making the statute, so as it was impossible to comply with the statute, then such persons are not within the clause, nor shall suffer by it.^ This decree was afterwards aflirmed ' on an appeal in the House of Lords.* 1 Hopkins v. Hopkins, Cas. temp.. Tab. 44, and another brancn of the same case, 1 Atk. 597. 2 Fide Hill v. Filkins, 2 P. "Wms. 6. " 3 Bro. P. C. 412. * In the foUowii^ eases there was a resulting trust, by reason of the illegality of the intended trust : Koper v. EadcUffe, 9 Mod. 171 ; Hopkins v. Hopkins, 1 Atk. 581, 597 ; Arnold v. Chapman, 1 Ves. 108 ; Page v. Leapingwell, 18 Ves. 463 ; Tregonwell V. Sydenham, 3 Dow, 194 ; Jones v. Mitchell, 1 S. & S. 290 ; Pilkington v. Boughey, 12 Sim. 114 ; Turner v. Kussell, 10 Hare, 204 j Morris v. Owen, W. K. (1875), 134 ; 214 MORICE V. THE BISHOP OP DURHAM. [CHAP, IV. DIGBY V. LEGARD. In Chancert, befoee Lord Bathurst, C, Trinity Teem, 1774. [Eeported in 3 Peere Williams, 22, note (1).] E. B. devised her real and personal estate to trustees, in trust to sell, to pay debts and legacies, and to pay the residue to five persons, to fee equally divided between them, share and share alike. One of the residuary legatees died in the lifetime of the testatrix. The court, at the hearing, and afterwards upon a rehearing, held that this was a resulting trust, as to the share in the real estate of the residuary lega- tee who died in the testatrix's lifetime, for the benefit of the heir-at-law. Keg. Lib. A. 1773, fol. 495, and 1774, fol. 325.* MORICE V. THE BISHOP OF DURHAM. In Chancery, before Lord Eldon, C, March 18, 20, 1805. [Reported in 10 Vesey, 521.] This cause came on upon an appeal by the defendant, the Bishop of Durham, from the decree of the Master of the Rolls. Ann Cracherode, by her wiQ, dated the 16th of April, 1801, and duly executed to pass real estate, after giving several legacies to her next of kin and others, some of which she directed to be paid out of the produce of her real estate, directed to be sold, bequeathed all her personal estate to the Bishop of Durham, his executors, &c. , upon trust to pay her debts and legacies, &c. ; and to dispose of the ultimate residue to such objects of benevolence and liberality as the Bishop of Durham in his own dis- cretion shall most approve of; and she appointed the Bishop her sole executor. The bill was filed by the next of kin to have the will established except as to the residuary bequest, and that such bequest may be declared void. The Attorney- General was made a defendant. The Haywood v. Craven, 2 Law Eep. (N. C.) 557 ; Huckaby v. Jones, 2 Hawks, 120 ; Ste- vens V. Ely, 1 Dev. Eq. 493 ; Sorrey v. Bright, 1 Dev. & B. Eq. 113 ; Thompson v. Newlin, 3 Ired. Eq. 338 ; Lemmond v. Peoples, 6 Ired. Eq. 137. See Young v. Grove, 4 C. B. 668 ; Doe v. Harris, 16 M. & W. 517. — Ed. 1 Cruse V. Barley, 3 P. 'Wms. 20 ; Ackroyd v. Smithson, 1 Bro. C. C. 503 ; Hntche- son V. Hammond, 3 Bro. C. C. 128 ; Spink v. Lewis, 3 Bro. C. C. 355 ; Williams v. Coade, 10 Ves. 500 ; Davenport v. Coltman, 12 Sim. 610 ; Hawley v. James, 5 Paige, 318, accord. — En. .SECT. I.J MORICE V. THE BISHOP OP DDKHAM, 216 Bishop, by his answer, expressly disclaimed any beneficial interest in himself personally.' Mr. Richards and Mr. Martin, in support of the appeal. The Attorney- General {Hon. Spencer Perceval) and Mr. Mitford, against the decree.^ The Lord Chancellok (Eldon). This, with the single exception of Brown v. Yeall,* is a new case. The questions are, 1st, Whether a trust was intended to be created at all ? 2dly, Whether it was effectu- ally created ? 3dly, If ineffectually created, whether the defendant, the Bishop of Durham, can, according to the decisions, and upon the author- ity of those decisions, take this property for his own use and benefit. As to the last, I understand a doubt has been raised in the discussion of some question bearing analogy to this in another court, — how far it is competent to a testator to give to his friend his personal estate, to apply it to such purposes of bounty not arising to trust as the testator himself would have been likely to apply it to. That question, as far .as this court has to do with it, depends altogether upon this : if the tes- tator meant to create a trust, and not to make an absolute gift, but the trust is ineffectually created, is not expressed at all, or fails, the next of kin take. On the other hand, if the party is to take himself, it must be upon this ground, according to the authorities, — that the testator did not mean to create a trust, but intended a gift to that person for his own use and benefit ; for if he was intended to have it entirely in his own power and discretion whether to make the application or not, it is absolutely given, and it is the effect of his own will and not the obli- gation imposed by the testament : the one inclining, the other compel- ling, him to execute the purpose. But if he cannot, or was not intended to, be compelled, the question is not then upon a trust that has failed, or the intent to create a trust ; but the will must be read as if no such intention was expressed or to be discovered in it. Pierson v. Garnet, and the other cases of that class, do not bear upon this in any degree ; for the question, whether a trust was intended, arose from two or three circumstances, which must all concur where there is no express trust. Prima facie an absolute interest was given, and the question was, whether precatorj'', not mandatory, words imposed a trust upon that person ; and the court has said, before those words of request or accommodation create a trust, it must be shown that the object and the subject are certain ; and it is not immaterial to this case that it must be shown that the objects are certain. If neither the objects nor the subject are certain, then the recommendation or request does not create a trust ; for of necessity the alleged trustee is to execute the trust, and the property being so uncertain and indefinite, it may be 1 The statement of facts is taken from the report of the case in 9 Ves. 399. ■'= The arguments of counsel are omitted. — Ed, 8 7 "Ves. 50, n. 216 MOEICE V. THE BISHOP OF DTTRHAM. [CHAP. IV. conceived the testator meant to leave it entirely to the will and pleas- ure of the legatee, whether he would take upon himself that which is technically called a trust. Wherever the subject to be administered as trust property, and the objects for whose benefit it is to be admin- istered are to be found in a will, not expressly creating trust, the in- definite nature and quantum of the subject, and the indefinite nature of the objects, are always used by the court as evidence that the mind of the testator was not to create a trust ; and the difficulty that would be imposed upon the court to say what should be so applied, or to what objects, has been the foundation of the argument that no trust was intended. But the principle of those cases has never been held in this court ap- plicable to a case where the testator himself has expressly said he gives his property upon trust. If he gives upon trust, hereafter to be declared, it might perhaps originally have been as well to have held that, if he did not declare any trust, the person to whom the property was given should take it. If he says he gives in trust, and stops there, meaning to make a codicil or an addition to his will, or, where he gives upon trusts which fail, or are ineffectually expressed, in all those cases the court has said, if upon the face of the will there is declaration plain that the person to whom the property is given is to take it in trust ; and, though the trust is not declared, or is ineffectually declared, or becomes incapable of taking effect, the party taking shall be a trustee ; if not for those who were to take by the will, for those who take under the disposition of the law. It is impossible, therefore, to contend that, if this is a trust ineffectually expressed, the Bishop of Durham can hold for his own benefit. I do not advert to what appears upon the record of his intention to the contrary, and his disposition to make the appli- cation ; for I must look only to the will, without any bias from the nature of the disposition, or the temper and quality of the person who is to execute the trust. The next consideration is, whether this is a trust effectually declared ; and, if not as to the whole, as to part. I put it so ; as it is said, if the word " benevolence " means charity, and " liberality " means something different from that idea, which in a court of justice we are obliged to apply to that word " charity" (and, I admit, we are obliged to apply to it many senses not falling within its ordinary signification) , there is a ground for an application in this case partially, if it cannot be wholly, to charity. It does not seem to me upon the authorities, particularly the Attorney-General v. Whorwood,^ that the argument for a proportion- ate division, or a division of some sort, would be displaced. I take the result of that case to be that the substratum of that chaiity failed, and all those partial dispositions that would have been good charity, if not 1 1 Ves. 534 ; Grieves v. Case, 1 Ves. 548 and n., 554. SECT. I.] MOEICE V. THE BISHOP OF D0BHAM. 217 connected with that, failed together with it. It has been decided upon that principle, that, though money may be given to an inflrmarj' or a school, yet, if that bequest is connected with a purpose of building an infirmary or school, and the money is then to be laid out upon it so built, the purpose, which is the foundation, failing, the superstructure must fall with it. The Attorney-General v. Doyley ^ is almost the only case that has been cited for a proportional division. The testator expressly di- rected the trustees to dispose of his estate to such of his relations, of his mother's side, who were most deserving, and in such manner and proportions as they should think fit to such charitable use as they should think most proper and convenient; and the court, which has taken strong liberties upon this subject of charity, though the manner and proportion were left to certain individuals, held that equality is equity, and there should be an equal division ; but it is expressly declared that those who took were persons who could take under a bequest to chari- table uses, and there was no diflSculty in that case in saying, those words must be construed according to the habit and allowed authorities of the court. The only case decided upon any principle that can govern this is Brown v. Yeall,^ which applies strongly. I do not trust myself with the question whether the principle was well apphed in that instance, but the decision furnishes a principle which the court must endeavor well to apply in cases that occur. I do not hesitate to say I entertain doubt, not of the principle upon which that case was decided, but whether it was well appUed in that instance. Mr. Bradley was a very able lawyer, yet he mistook his waj', as Serjeant Aspinall had not long before. Mr. Bradley gave a great portion of his fortune to accumulate for many years, and, meaning that it should be disposed of to chari- table purposes, constituted a fund, expressly stating that his purpose was a charitable purpose, and confirming that by directing that chari- table purpose to be carried on, as to the mode of executing it, by that court which, according to the Constitution of the country, ordinarily administers property given to charitable uses. In his opinion, there- fore, independent of particular authority, there was a principle, sug- gested by all other cases of trust, that if a trust was declared in such terms that this court could not execute it, that trust was ill-declared, and must fail, for the benefit of the next of kin. The principle upon which that trust was ill-declared is this. As it is a maxim that the execution of a trust shall be under the control of the court, it must be of such a nature that it can be under that control, so that the admin- istration of it can be reviewed by the court ; or, if the trustee dies, the 1 4 Vin. 485 ; 2 Eq. Ca. Ab. 184. Stated from the Register's book, in the note, 7 res. 58. 2 7 Ves. 50, n. 218 MOKICB V. THE BISHOP OF DURHAM. [OHAP. IV. court itself can execute the trust ; a trust, therefore, which, in the case of mal-administration, could be reformed, and a due administration di- rected, and then, unless the subject and the objects can be ascertained upon principles familiar in other cases, it must be decided that the court can neither reform mal-administration nor direct a due adminis- tration. That is the principle of that case. Upon the question whether that principle was well applied in that instance, different minds will reason differently. I should have been disposed to say that, where such a purpose was expressed, it was not a strained construction to hold that the happiness of mankind intended was that which was to be promoted by the circulation of religious and virtuous learning ; and, the testator having stated that to be the charitable purpose, which un- questionably was so, the distribution of books for the promotion of religion, the court might have so understood him ; and the testator hav- ing not only called it a charitable purpose, but delegated the execution to this court, ought to be taken to have meant that. Upon these gi-ounds in a subsequent case, The Attorney-General v. Stepney,^ as to the Welch charities, it appeared to me too much, con- sidering the Society in this country for the Propagation of the Gospel, &c., to say a trust for the circulation of bibles, prayer-books, and other religious books was not good. Then, looking back to the history of the law upon this subject, I say, with the Master of the Rolls, that a case has not been yet decided in which the court has executed a chari- table purpose, unless the will contains a description of that which the law acknowledges to be a charitable purpose, or devotes the propei-ty to purposes of charity in general. Upon those cases in which the will devotes the property to charitable purposes, described, observation is unnecessarj'. With reference to those in which the court takes upon itself to say it is a disposition to eharitj^, where in some the mode is left to individuals, in others individuals cannot select either the mode or the objects, but it falls upon the Mng, as parens patrice, to apply the property, it is enough at this day to' say, the court, by long habitual construction of those general words, has fixed the sense ; and, where there is a gift to charity in general, whether it is to be executed by individuals selected by the testator himself, or the King, as parens patricB, is to execute it (and I allude to the case in Levintz, The At- torney-General V. Matthews^), it is the duty of such trustees on the one hand, and of the crown upon the other, to apply the money to charity in the sense which the determinations have affixed to that word in this court ; viz., either such charitable purposes as are expressed in the stat- ute (43 Eliz. c. 4), or to purposes having analogy to those. I believe the expression " charitable purposes," as used in this court, has been applied to many acts described in that statute, and analogous to those, 1 10 Yes. 22. 2 2 Lev. 167. SECT. I.] MORICE V, THE BISHOP OP DURHAM. 219 not because they can with propriety be called charitable, but as that denomination is by the statute given to all the purposes described. The question, then, is entirely whether this is according to the inten- tion a gift to purposes of charity in general as understood in this court ; such that this court would have held the bishop bound, and would have compelled him to apply the surplus to such charitable purposes as can be answered only in obedience to decrees where the gift is to charity in general ; or is it or may it be according to the intention to such pur- poses going beyond those partially or altogether which the court under- stands by " charitable purposes ; " and, if that is the intention, is the gift too indefinite to create an effectual trust to be here executed ? The argument has not denied, nor is it necessary, in order to support this decree, that the person created the trustee might give the property to such charitable uses as this court holds charitable uses within the orii- nary meaning. It is not contended, and it is not necessary, to support this decree, to contend, that the trustee might not consistently with the intention have devoted every shilling to uses in that sense charitable, and of course a part of the property. But the true question is, whether, if upon the one hand he might have devoted the whole to purposes in this sense charitable, he might not equally according to the intention have devoted the whole to purposes benevolent and liberal, and yet not within the meaning of charitable purposes as this court construes those words ; and, if according to the intention it was competent to him to do so, I do not apprehend that under any authority upon such words the court could have charged him with mal-administration, if he had ap- plied the whole to purposes, which, according to the meaning of the testator, are benevolent and liberal, though not acts of that species of benevolence and liberality which this court in the construction of a will calls charitable acts. The question, thererfore, resolves itself entirely into that ; for I agree there is no magic in words, and if the real meaning of these words is charity or charitable purposes, according to the technical sense in which those words are used in this court, all the consequences follow ; if, on the other hand, the intention was to describe anything beyond that, then the testator meant to repose in the bishop a discretion, not to ap- ply the property for his own benefit, but that would enable him to apply it to purposes more indefinite than those, to which we must look, con- sidering them purposes creating a trust ; for, if there is as much of in- definite nature in the purposes intended to be expressed, as in the cases to which I first alluded, where the objects are too uncertain to make recommendation amount to trust by analogy, the trust is as ineflfectual, — the only difference being, that in ihe one case no trust is declared, and the recommendation fails, the objects being too indefinite ; in the other the testator has expressly said it is a trust, and the trustee conse- 220 MOEICE V. THE BISHOP OF DTJEHAM. [CKAP. IV. quently takes, not for his own benefit, but for purposes not sufficiently defined to be controlled and managed by this court. Upon these words much criticism may be used. But the question is, whether, according to the ordinary sense, not the sense of the passages and authors alluded to, treating upon the great and extensive sense of the word " charity," in the Christian religion, this testatrix meant by these words to confine the defendant to such acts of charity or charitable purposes as this court would have enforced by decree, and reference to a master. I do not think that was the intention ; and, if not, the intention is too indefinite to create a trust. But it was the intention to create a trust, and the object being too indefinite has failed. The consequence of law is, that the Bishop takes the property upon trust to dispose of it as the law wUl dispose of it, not for his own benefit or any purpose this court can effectuate. I think, therefore, this decree is right. The decree was affirmed^ * In the following cases, the intended trust being too indefinite for specific execution, and not being capable of execution as a charitable trust, there was held to be a result- ing trust : — James v. Allen, 3 Mer. 17; Vezeyu Jameson, 1 S. & S. 69 ; Ommanney v. Butcher, T. & R. 260; Fowler v. Garlike, 1 E. & My. 232; Ellis v. Selby, 7 Sim. 352; 1 M. & Cr. 286, 8. 0. ; Stubbs v. Sargon, 2 Keen, 255 ; 3 M. & Cr. 507, s. c. ; Kendall v. Granger, 5 Bear. 300 ; WiUiams v. Kershaw, 5 CI. & F. Ill ; Buckley v. Bristow, 10 Jur. N. s. 1095 ; Yeap Cheah U"eo v. Ong Cheng Neo, L. R. 6 P. C. 381 ; Leavers v. Clayton, 8 Ch. D. 584 ; Kain v. Gibboney, 101 XT. S. 362 ; Adye v. Smith, 44 Conn. 60 ; Dashiell v. Att'y-Geu., 6 Har. & J. 1 ; Chamberlain v. Steams, 111 Mass. 267 ; Thom- son 0. Norris, 5 C. E. Green, 489 ; Norris v. Thomson, 4 C. E. Green, 307, 575 ; McAuley u Wilson, 1 Der. Eq. 276 j Bridges v. Pleasants, 4 Ired. Eq. 26. —Ed. SECT. 1.3 WELFORD V, STOKOB. 221 WELFORD V. STOKOE. In Chamceet, before Sir E. Malins, V. C, July 1, 1867. [Reported in Weekly Notes (1867), 208.] This was a suit for the execution of the trusts of the will of George Simpson, made in 1861, whereby, after making several specific devises, he devised and bequeathed the residue of his real estate to " his trus- tees and executors thereinafter named, the survivor or survivors of them, upon trust to sell and convert into money the whole thereof, and invest the produce in their joint names in the public funds, receive the interest and dividends, and divide the same in the following proportions for an equal benefit," and he appointed T. W. Welford and B. Walker trustees and executors. Glasse, Q. C, and G. HaU, for the plaintiflF, T. W. Welford, and Whitehouse, for B. Walker, contended that the trustees and executors took the beneficial interest in the residuary estate. Faber, for the next of kin, and Chitty, for the heir-at-law, contended that there was an intestacy as to the beneficial interest. The Vice-Chaucellor held that the testator had affixed a trust upon the residuary estate without specifying the objects of the trust, and consequently there was a resulting trust, as to the real estate for the heir, and as to the personalty for the next of kin.* 1 In the following cases, property teing given upon trust, and no| trust being de- clared, there was a resulting trust : — Pratt V. Sladden, 14 Ves. 198 (sembU) ; Dunnage 0. White, 1 Jao. & "W. 583 ; Goodere v. Lloyd, 3 Sim. 538 ; Mayor v. Wood, 3 Hare, 131 ; 1 H. L. C. 272, s. 0. ; Penfold V. Bouch, i Haie, 271 ; Aston v. Wood, L. E. 6 Eq.- 419 ; Candy v. Candy, W. N. (1872) 168. — Ed. 222 VAJSr DEE TOLGEN V. TATES. [CHAP. IV. VAN DER VOLGEN v. YATES. In the Coukt of Appeais, New Yoke, Decembee, 1853. [R^orted in 5 Seldm, 219.] On the 27th of April, 1790, Nicholas Van der Volgen owned a lot in Schenectady, the land out of which this controversy arose. On that day, by indenture of release reciting that the releasees were in possession of the premises " by virtue of a bargain and sale to them thereof made for one whole year, by indenture bearing date the day next before the day of the date of these presents, and by force of the statute for transferring uses into possession," and in consideration of £100 paid by the re- leasees, he released the premises to Eobert Alexander and seven other persons named, of whom Joseph C. Yates, the original defendant in this action was one, " and to their heirs and assigns forever." The deed then declared that the conveyance was " upon trust, neverthe- less, to the only proper use, benefit, and behoof of Cornelius Van Dyck" and twelve other persons named, "members of St. George's Lodge, in the town of Schenectady, and all others who at present are, or hereafter may become, members of the same, their survivors and successors forever, and to and for no other use, intent, and purpose whatsoever." Then follows a covenant for further assurance to the releasees, their heirs and assigns, " to and for the uses and purposes hereinbefore specified and more particularly mentioned ; " and a cove- nant for the quiet and peaceable possession of the releasees, their heirs and assigns, " for the uses and purposes aforesaid." No conveyance of the premises, subsequent to this, was ever made. In 1797 Nicholas Van der Volgen died, leaving a will in which, not having specifically disposed of the reversion of the premises in ques- tion, he made Lawrence and Petrus Van der Volgen his residuary devi- sees. In 1819 Petrus died, having devised all his estate by will to Myndert Van der Volgen ; Lawrence and Myndert being thus the legal representatives of Nicholas in any devisable estate in the premises which he may have had at the time of his death. In 1833 the act to incorporate the Utica and Schenectady Railroad Company was passed. Under its authority the company instituted proceedings to appropriate the lot in question to the use of the road. To these proceedings Lawrence and Myndert Van der Volgen, Joseph C. Yates, now the sole survivor of the releasees in the before-mentioned conveyance, and certain persons claiming to be members of St. George's Lodge, were made parties, all of the cestuis que use named in that instru- ment being dead. The commissioners awarded six cents to the two SECT. I.] VAN DER VOLGEN V. YATES. 223 Van der Volgens, and S2,7o5 to Yates " as trustee under the release ; " and the two former filed their bill in chancery against the latter to compel the payment of the money to them as the representatives of the releasor, and entitled to the land or its proceeds. The Vice-Chan- cellor (Gridley) dismissed the hill, and this decree was affirmed by the Chancellor (Walworth). 3 Barb. Ch. 242. The complainants ap- pealed to this court. All the original parties to the action had died since the commence- ment of the suit, and their personal representatives were the present parties. William Tracy, for the appellants. A. C. Paige, for the respondent. BuGGLES, C. J. In determining this case, it wUl be assumed that the deed executed by Nicholas Van der Volgen to Robert Alexander and seven others, for the use of Cornelius Van Dj'ck and twelve others, was a valid conveyance by lease and release, operating by force of the Statute of Uses, to vest in Van Dyck and others who are specially named as cestuis que use, an estate for their joint lives and the life of the sur- vivor, but not an estate in fee : and that the limitation of the further use to "all others who were then or thereafter might become members of St. George's Lodge, their survivors and successors forever," was void for uncertainty ; and that the use or equitable interest thus at- tempted to be given to the members of the lodge not specially named, cannot be sustained either as a legal estate by force of the Statute of Uses, or as an executory trust, or as a charitable use. Upon these assumptions, the only remaining question is whether, upon the death of the last surviving cestui que use, the estate resulted back to the repre- sentatives of the grantor, who are the complainants. If it did so, they are entitled to the money in controversy ; otherwise, not. Before the Statute of Uses, and while uses were subjects of chancery jurisdiction exclusively, a use could not be raised by deed without a sufficient consideration ; a doctrine taken from the maxim of the civU. law, ex nudo pacta non oritur actio. In consequence of this rule, the Court of Chancery would not compel the execution of a use, unless it had been raised for a good or valuable consideration ; for that would be to en- force donum gratuitum. 1 Cruise, tit. xi. c. 2, § 22. And where a man made a feoflOnent to another without any consideration, equity presumed that he meant it to the use of himself; unless he expressly declared it to the use of another, and then nothing was presumed con- trary to his own expressions. 2 Bl. Com. 330. If a person had conveyed his lands to another without consideration, or declaration of uses, the grantor became entitled to the use or pernancy of the profits of the lands thus conveyed. This doctrine was not altered by the Statute of Uses. Therefore it 224 VAN DEB VOLGEN V. YATES. [CHAP. rv, became an established principle, that where the legal seisin or posses- sion of lands is transferred by any common-law conveyance or assur- ance, and no use is expressly declared, nor any consideration or evidence of intent to direct 'the use, such use shall result back to the original owner of the estate; for where there is neither consideration nor declaration of uses, nor any circumstance to show the intention of the parties, it cannot be supposed that the estate was intended to be given away. 1 Cruise, tit. ii. c. 4, § 20. But if a valuable consideration appears, equity will immediately raise a use correspondent to such consideration. 2 Bl. Com. 330. And if in such case no use is expressly declared, the person to whom the legal estate is conveyed, and from whom the consideration moved, will be entitled to the use. The payment of the consideration leads the use, unless it be expressly declared to some other person. The use results to the original owner where no consideration appears, because it cannot be supposed that the estate was intended to be given away ; and by the same rule it will not result where a consideration has been paid, because in such case it cannot be supposed that the parties intended the land should go back to him who had been paid for it. The Statute of Uses made no change in the equitable principles which previously governed resulting uses. It united the legal and equitable estates, so that after the statute a conveyance of the use was a convey- ance of the land ; and the land will not result or revert to the original owner except where the use, would have done so before the statute was passed. Cruise, tit. x. c. 4, § 20. It is still now, as it was before the statute, " the intention of the parties to be collected from the face of the deed that gives effect to resulting uses." 1 Sanders on Uses, 104, ed. of 1830. As a general rule, it is true that where the owner for a pecuniary sonsideration conveys lands to uses, expressly declaring a part of the use, but making no disposition of the residue, so much of the use as the owner does not dispose of remains in him. Cruise, tit. xi. o. 4, § 21. For example, if an estate be conveyed for valuable considera- tion to feoffees and their heirs to the use of them for their lives, the remainder of the use will result to the grantor. In such case the intent of the grantor to create a life-estate only and to withhold the residue of the use is apparent on the face of the deed ; the words of inherit- ance in the conveyance being effectual only for the purpose of serving the declared use. The consideration expressed in the conveyance is therefore deemed an equivalent only for the life-estate. The residue 9f the use remains in or results to the grantor, because there was no grant of it, nor any intention to grant it, and because it has never been paid for. But the general rule above stated is clearly inapplicable to a case in SECT. I.] VAN DER VOLGEN V. YATES. 225 •which the intention of the grantor, apparent on the face of the deed, is to dispose of the entire use, or, in other words, of his whole estate in the land. Such is the case now before us for determination. The consideration expressed in Van der Volgen's deed was £100 ; and it is perfectly clear on the face of the conveyance that he intended to part with his whole title and interest in the land. He limited the use by the terms of his deed " to Cornelius Van Dyck and twelve other mem- bers of St. George's Lodge in the town of Schenectady, and all others who at present are, or hereafter may become, members of the same, their survivors and successors forever." He attempted to convey the use and beneficial interest to the members of that lodge either as a corporate body, capable of taking bj' succession forever, or to that association for a charitable use or perpetuity. In either case, if the conveyance had taken eflfect according to the grantor's intention, it would have passed his whole title, and no part of the use could have resulted to him or his representatives. Admitting that the declaration of the uses was void except as to the eestuis que use who were specially named, and good as to them only for life, yet it cannot be doubted that the parties believed when the deed was executed that the grantor conveyed his whole title in fee, and the intention of the parties that the entire use and interest of the grantor should pass, is as clear as if the limitation of the whole use had been valid and effectual. This intent being established, it follows, as a necessary consequence, that the sum of £100 consideration was paid and received as an equivalent for what was intended and supposed to have been conveyed ; that is to say, for an estate in fee. The express declaration of the use in the present case, instead of being presumptive evidence that the grantor did not intend to part with the use in fee, is conclusive evidence that he did so intend ; and the extent of the express declaration is as much the measure of the consideration as if the whole of the declared use had been valid. The complainant's claim to the resulting use, or re- version of the land, being founded solely on the assumption that the grantor never was paid for it, must therefore fail because the assump- tion is disproved by the deed itself. A use never results against the intent of the parties. " Where there is any circumstance to show the intent of the parties to have been that the use should not result, it wiU remain in the persons to whom the legal estate is limited." 1 Cruise, tit. xi., Use, c. 4, § 41. In this case there are at least two such circumstances. They have already been alluded to ; first, the intent expressly declared to convey the land in fee or in perpetuity for the benefit of the members of St. George's Lodge. This effectually repels the idea of a resulting use. The two intents are incompatible. Secondly, the payment of the purchase- money, of which enough has been already said. VOL. I. 15 226 yAN DEE yOLGEN V, YATES. [CHAP. IV. If it be said that the express declaration is a presumptive proof that the grantor did not intend that the grantees of the legal estate should have that part of the use which was effectually declared, the answer is, that the express declaration is proof at least equally' strong that he did not mean that the use should result to himself. Conceding, then, that the intention of the parties in regard to this residue of the use cannot be carried into effect, the equity which governs resulting uses settles the question between them. It gives the residue to the grantees because the grantor has bad the money for it, and the language of the convej-ance is sufficient to pass it. The grantor cannot have the pur- chase-money and the land also. Pa3'ment of the purchase-money for the entire title vests the entire use in the grantees, excepting only so much of it as may be effectually declared for the benefit of some other person. It was insisted on the argument that where an estate is conveyed for particular purposes or on particular trusts only, which by accident or otherwise cannot take effect, a trust will result to the original owner or his heir ; and that the present case falls within that principle. "We were referred on this point to Cruise, tit. Trust, c. 1, § 66. But on looking at the cases cited by Mr. Cruise, they are found to be cases, not of uses, but of active trusts ; all, excepting one created by devise, where of course no pecuniary consideration was paid, and the land therefore was not diverted from the heir-at-law on the failure of the trust. The case in which there was a conveyance in trust has no resemblance to the case now in hand. That the rule above cited from Cniise is inap- plicable to the present case appears on Sir Edward Coke's authority, in The Queen v. Porter,^ that upon a feoffment made without consideration to charitable uses void by statute, the feoffee should, notwithstanding the declaration of such uses, be seised to the feoffor and his heks ; but that if the feoffor had reserved but a penny rent, or had taken a penny in consideration of the feoffment, then, although the statute makes void the use expressed, yet the feoffees shall be seised to their own use and not to tlie use of the feoffor. This was said in the argument for the defendant Porter ; and Coke, who was solicitor for the Queen, in a note at the end of the case, referring by a marginal note to this part of the argument, says: "And it is good policy upon every such feoffment (to charitable uses) to reserve a small rent to the feoffor and his heirs, or to express some such consideration of some small sum, for the cause before rehearsed." Thus it appears that upon a feoffment to a void use, upon a pecuniary consideration, however smaU, the title vests in the feoffee for his own benefit. The conveyance in the present case was by lease and release, which operated in this respect like a I 1 Eep. 24, 28. SECT. I.] VAN DER VOLGEN V. YATES. 227 feoflftnent, and vested the estate, legal and equitable, in the releases from and after the expiration of the valid use. Whether thej' took this residue of the estate as tenants in common or as joint tenants is a question which does not arise in this case. It has been assumed that the use expressed in favor of the members of St. George's Lodge, not specially named, was not valid as a charitable use. But it was not necessary to decide that question. The decision of this case must not be understood as settling any question as to the title to the money in controversy, except that no part of it belongs to the complainants. Judges Mason, Morse, Johnson, and Gaedinee concurred in the foregoing opinion. . WiLLABD and Taggaet, JJ., dissented. Decree affirmed. 228 BLLOOCK V. MAPP. [CHAP. IV. SECTION n. Where an Expressed Trust fails to exhaust the Entire Property transferred to the Trustee. ELLCOCK V. MAPP. In the House of Lobds, Februabt 25, 28, 1851. [Reported in 3 House of Lords Chses, 492.] This was an appeal against an order of Lord Chancellor Cottenham, which had reversed an order of the Vice-Chancellor of England in a suit instituted for the administration of the estate of a testator, and a declaration of the true construction to be put upon his will. Samuel Henry Pare, Esq., of Barbadoes, made his will in that island, dated 2d July, 1785, in the following terms : " I give aU my estate, both real and personal, in this island or elsewhere, to Edward Ellcock, Esq., of, &c., his executors, administrators, and assigns, to and for the sev- eral uses, intents, and purposes following ; that is to say, out of the rents, issues, and profits, and interest of all debts due to me, to pay unto my dear wife Anna Maria £300 yearly and every year, in addi- tion to her own fortune, which survives to her ; and in trust, likewise, \ty permit and suffer her to have the full enjoyment of the uses and services of all my negro slaves, except Jackey, whom I direct to be freed at the expense of my estate ; and in trust, also, to per- mit and sufier her to use all my household furniture and plate during her natural life ; and in trust, also, to receive the interest only of the debt due to me from John Prettejohn, Esq., during the lives of the said John Prettejohn, and of his son and daughter, Char- lotte and John ; and in trust, likewise, to discharge the said John Pret- tejohn from the sum of £2,500, which sum I bequeath unto his said two children, and in case of their deaths, to the aforesaid John Prettejohn himself ; and in trust, also, to divide the remainder of the interest of debts due to me in the following manner, in equal proportions between H. E. H. Parris, Margaret Ellcock, and Anna Maria Ellcock, daughters of the aforesaid Edward Ellcock ; and in case my wife Anna Maria should intermarry and have children, in trust to divide the principal sums among such of her children as shall be living at the death of the aforesaid John Prettejohn, Senior, Charlotte Prettejohn, and John Pret- tejohn, Junior, and in the mean time to divide one principal sum of £1,500, part of the debt due to me from the estate of the Hon. Samuel SECT, ll.j ELLCOCK V. MAPP. 229 Rous, deceased, among and between the aforesaid H. E. H. Parris, Margaret Ellcock, and Anna Maria Ellcock, on the death of the afore- said Anna Maria, my said wife. If there should be any doubt of the legality of the above trust for the use of the children of my present wife by a future marriage, I then give such sum or sums as would have been their share or shares unto herself, upon such events as are before mentioned. Lastly, I nominate, constitute, and appoint the aforesaid Edward Ellcock executor of this my last will and testament." The testator died in England on the 22d October, 1789, leaving all the persons named in his will him surviving. The will was duly proved by Edward Ellcock in Barbadoes, and the executor took possession of all the testator's property there. The debt owing by Mr. Prettejohn was secured on his estate called Constant, and after deducting the sum of £2,500 therefrom, amounted to £4,411 19s. 3d., to which extent the estate remained charged. H. E. H. Parris died in 1795, intestate. Elizabeth, the wife of the Hon. Samuel Rous (mentioned in the will), was, at the time of the death of the testator, his only next of kin, according to the Statute of Distributions. She survived her husband, but died in 1796, having appointed her daughter her executrix. The daughter died in 1811, having by will appointed as her executrix Eliza Mapp (the present respondent) , who proved the daughter's will, and took out letters of administration in England to the estates of both H. E. H. Parris and Elizabeth Rous, of whom she became the sole legal personal represent- ative. Edward Ellcock died in England in 1798, and appointed his wife his executrix, and by her his will was proved in England. In 1800 she took out letters of administration to his estate in Barbadoes. Mrs. Pare died in 1824, without having been again married, and intestate ; and Mrs. Ellcock, who was her sister, took out letters of administration to her. In 1825 Mrs. Ellcock likewise obtained letters of administra- tion, with the win annexed, to the estate of the testator, Samuel Pare. Mrs. Ellcock died in December, 1831, having appointed Margaret Ell- cock (the present appellant) her executrix. Margaret Ellcock proved her mother's will in England, and obtained in Barbadoes letters of ad- ministration to the estate of the testator, and similar letters in England to the estate of Mrs. Pare ; and thus became the representative of Mr. and Mrs. Pare, and of Mr. and Mrs. Ellcock. Charlotte and John Prettejohn, the son and daughter mentioned in the wiU, were stiU alive when the suit was commenced. Eliza Mapp, in April, 1837, filed her bill in chancery, for the pur- pose of having the estate of S. H. Pare administered, and the true construction of his will declared. The case was heard before the Vice-Chancellor of England in March, 230 ELLCOCK V. MAPP. [CHAP. IV, 1845, when his Honor made a decree, directing that it should be referred to the Master to inquire who was the next of kin of the testator ; and on the Master making his report, the cause came on for further direc- tions, when his Honor, on the 26th April, 1847, declared that, accord- ing to the true construction of the will of the testator, S. H. Pare, the said Edward EUcock, the executor, was not a trustee of the residuary personal estate of the testator, but became absolutely entitled to such residuary estate for his own use and benefit.^ The decree and order were appealed against by Eliza Mapp, and were reversed by the Lord Chancellor, who, by an order dated in April, 1849, declared Edward EUcock to be a trustee for the next of kin, and directed accounts accordingly.'^ This was an appeal against that order. Mr. Bethell and Mr. Sandys, for the appellant. Mr. John Stuart and Mr. G. L. Russell, for the respondent.' August 8. The Lord Chancellor. In this case the question is, whether an executor is entitled beneficially to the undisposed-of residue of personal estate. The testator, at the commencement of his will, uses these words : " I give all my estate, both real and personal, in this island and elsewhere, to Edward EUcock, of, &c. Esquire, his executor, administrators, and assigns, to and for the several uses, intents, and purposes following ; that is to saj-," &c. And then, after specifying various objects of his bounty, he concludes by saying: "Lastly, I nominate, constitute, and appoint the aforesaid Edward EUcock executor of this my last will and testament." The late Vice-Chancellor of England decided that Edward EUcock, the executor, was not a trustee of the residuary personal estate of the said testator, but was absolutely entitled to such residuary personal estate for his own benefit. On appeal that decision was overruled by Lord Cottenham, who held that Edward EUcock did not become enti- tled to such residuarj- personal estate for his own benefit, but was a trustee thereof for the next of kin of the said testator, according to the statute for the distribution of the personal estate of intestates ; and it appears to me, that, both upon authority and principle, the decision of Lord Cottenham ought to be affirmed. Much diflference of opinion has existed upon the question involved in this case between judges of the highest eminence, and there are many decisions upon the subject of a residue which is undisposed of; but the only case which closely resembles the present, and which I think it necessary particularly to notice on that account, is the case of Dawson v. Clark.^ And upon that case Sir WiUiam Grant and Lord Eldon entertained very different opinions. 1 15 Simons, 568. 2 2 Phillips, 793. ' The arguments of counsel are omitted. — Ed, ♦ 15 Ves. 415, and 18 Yes. 247. SECT. II.] ELLCOCK V. MAPP. 231 In that case the residue was claimed-by the executors on two grounds : first, as expressly devised to them individually, subject only to the payment of debts and legacies ; and, secondly, if not so devised, then as not being otherwise disposed of, and therefore belonging to them in their character of executors. Sir "William Grant being of opinion that, if the first point should be determined against them, they must succeed on the second ground, did not think it necessary to consider the first ground, but decided that they were entitled on the second ground.^ Lord Eldon, however, though he decided that the executors were entitled on the first ground, yet so distinctly repudiated the second ground, as is pointed out by Lord Cottenham in his judgment in the present case,^ that I regard his observation as equivalent to a decision that in that case the executors were not entitled in their character of executors ; and I agree with Lord Cottenham in considering that there was no real distinction between that case and the present as regards the second ground, on which the executors there claimed. " This," as his Lordship remarked, " is clearly a gift of the whole property in tnist, though the trusts declared do not exhaust the whole." " In Pratt v. Sladden,* Sir William Grant observed, that " some judges have been disposed to give way to a very slight indication of intention against the executors, and almost to put them upon proof of an inten- tion in their favor. The modern doctrine, however, is, that the executor shall take beneflciall3', unless there is a strong and violent presumption that he shall not so take ; for Lord TLurlow used too strong an expres- sion when he said it must be ' an irresistible inference.' " Lord Hardwicke, also, in the Bishop of Cloyne v. Young,^ uses the expression "necessary implication or violent presumption," but only in a comparative or qualified way. There, after observing that it was "too loose and general" a way of stating the principle, to say that " wherever it probably appears that the testator intended only to give the oflSce of executor, or legal interest only, of the personal estate, not the beneficial, he should barely take a trust," he added, that " the rule is rather (which may come to the same thing) that where a necessary implication or violent presumption appears, &c., that the testator, by naming him executor, meant only to give the oifice of executor, and not the beneficial interest or property, he shall be considered a trustee." While Lord Hardwicke and Sir William Grant were opposing the notion that a mere probability, or " a very slight indication of inten- tion," that the executor was not to take beneficially was sufficient, I am inclined to think that they have used too strong language in requir- 1 15 Ves. 415. 2 2 Phillips, 793. » 2 Phillips, 800. * 14 Ves. 193, 197. * 2 Ves. Sen. 91, 96. 232 BLLCOCK V. MAPP. [OHAP. IV ing the existence of " a necessary implication or a ■^olent presump- tion." It seems to me that plain implication or a strong presumption would have been terms more consistent with the decisions and with principle. It is a question of intention ; the law, where none is ex- pressed, imptying one in favor of the executors. And I think the result of the cases is not inaccurately stated by the late eminent Ameri- can judge, Mr. Justice Story, who, in his work on Equity Jurisprudence,^ observes : " In equity, if it can be collected from any circumstance or expression in the will, that the testator intended his executor to have only the office, and not the beneficial interest, such intention will re- ceive effect, and the executor will be deemed a trustee for those on whom the law would have cast the surplus in case of a complete intes- tacy." And in Toller's Executors,^ and in the more recent and extended work, Williams on Executors, ° the law is stated to the same effect as in the words of Mr. Justice Story. It is true that the onus probandi is on the parties opposing the execu- tor in cases not within the Statute 1 Wm. IV. c. 40, just as it is now thrown on the executor in cases within that act. In the former class of cases there must appear to be an intention to exclude the executor from the beneficial interest ; in the latter, to confer that interest upon him. But it must not be inferred from this that the jjosition of an executor in the former class of cases is analogous to an heir-at-law of real estate, who takes what is undisposed of. An heir-at-law is the person whom the law, so far as it is uncontrolled by testamentary dis- position, designates as the proper object of succession to the inheri- tance. And the maxim is, inelior est dispositio legis quam hominis. But the executor takes the legal interest by virtue of an express appoint- ment to the office of executor, and the beneficial interest attaches to the legal interest in him, unless the will affords sufficient evidence of an intention that he is to take in a fiduciary character ; in which case the beneficial interest has a separate and independent existence, and instead of attaching in him, stands apart from his legal interest, and rests in the persons whom the testator has designated as the objects of his bounty, and who might be termed testamentary cestuis que trml ; or, in default of those, then the persons who have a statutory right, grounded on the relationship to the testator, and who may be consid- ered as the statutory cestuis que trust. Lord Eldon, therefore, justly observed, in Dawson v. Clark, that " the proposition that the appointment of executor gives him everj'- thing not disposed of, is not correct ; " * and he gave a conclusive proof of this by adding, that " if a testator appoints an executor in trust, but doe," not express his object, he might have relinquished that object, 1 Section 1208. 2 Page 352. » Page 1266. • 18 Ves. 254. SECT, n.] ELLCOCK V. MAPP. 283 meaning it to go to the executor ; yet the will expressing that he in- tended a trust at that time, the executor would not take iu respect of the interest he had by virtue of his office." It has, indeed, been remarked by a learned text- writer, Mr. Bythe- wood, in his edition of Jarman, and I think correctly, that the rule which gave the residuary property to the executor generally contravened the intention. And the fact that this is so, and that therefore the legis- lature has declared it desirable to alter the rule, would almost seem to show that in doubtful cases the leaning ought to have been rather against than in favor of the executor. This, however, I conceive is not one of such doubtful cases, and I think there is no necessity here to consider upon how low a degree of evidence of intention in their favor the statutory objects of succession may be admitted. Their title seems to me to be clear, inasmuch as the executor is distinctly and unequivocally invested with a fiduciary character as to the whole residue, though the trusts do not exhaust the whole. The circumstance that the trusts do not exhaust the whole has been rightly held to be immaterial. Here that circumstance does not affect the fiduciary character with which the executor has been invested. It only makes him a trustee pro tanto for statutory, instead of for testa- mentary, objects. Upon principle, then, as well as upon the weight of authority, I am of opinion that the executor in this case is merely a trustee, and I move that the order of Lord Cottenham be affirmed. Order affirmed.^ 1 In accordance with the principal case, there was a resulting trust of the surplus in the following cases : Cook v. Guavas, 9 Mod. 187, cited ; Culpepper u Aston, 2 Ch. Ca. 115-; Levet v. Needham, 2 Vern. 138 ; Randall v. Bookey, 2 Vem. 425 ; Free. Ch. 31, s. c. ; City of London v. Garway, 2 Vern. 571 ; Countess of Bristol v. Hungerford, 2 Vern. 645 (but see Rogers «. Rogers, 3 P. Wms. 193) ; Wych v. Packington, 3 Bro. P. C. (Toml. ed.) 44 ; Starkey v. Brooks, 1 P. Wms. 390 ; Kiricke v. Branshey, 2 Eq. Ab. 508, pi. 5 ; Robinson v. Taylor, 1 Ves. Jr. 44 ; 2 Bro. 0. C. 588, s. c. ; Dean v. Dalton, 2 Bro. C. C. 634 ; Habergham «. Vincent, 2 Ves. Jr. 204 ; Halliday v. Hudson, 8 Ves. Jr. 210 ; "White v. Evans, 4 Ves. 21 ; Mordaunt v. Hussey, 4 Ves. 117 ; Seley V. Wood, 10 Ves. 75 ; Nash v. Smith, 17 Ves. 29 ; Langhara v. Sanford, 17 Ves. 442 ; 19 Ves. 643 ; Southouse v. Bate, 2 V. & B. 396 ; Kellett v. Kellett, 3 Dow, 248 ; Girand v. Hanbury, 3 Mer. 150 ; Wollett v. Harris, 5 Mad. 452 ; Rhodes v. Rudge, 1 Sim. 79 ; Braddon v. Farrand, 4 Russ. 87 ; Han-is v. Harris, 2 Keen, 646 ; Mullen «. Bowman, 1 Coll. 197 ; Andrew v. Andrew, 1 Coll. 686 ; Lore v. Gaze, 8 Beav. 472 ; Meiyon v. CoUett, 8 Beav. 386 ; Att'y-Gen. v. Malkin, 2 Phill. 64 ; Sanderson's Trust, 3 K. & J. 497 ; Saltmarsh v. Barrett, 3 De G., F. & J. 279 ; 29 Beav. 474, s. o. ; BaiTS V. Fewkes, 2 Hem. & M. 60 ; Hall v. Waterhouse, W. N. (1867) 11 ; Bird v. Harris, L. R. 9 Eq. 204 ; Selter«. Cavanagh, 1 Dr. & Walsh, 668 ; Neale ■c. Hagthrop, 3 Bland, 551 ; Skellinger v. Skellinger, 3 N. J. L. J. 179. In Read v. Stedman, 26 Beav, 495, there being no next of kin, a surplus of personal property went to the crown. Where property is settled or devised subject to a trust term of years, and the pur- poses of the term are either satisfied or void, the trust does not result, but the trustees 234 OLAEKB V. HILTON. [CHAP. IV CLARKE V. HILTON. Is Chanceet, before Sir John Stuart, V. C, June 5, 6, 1866. [Beported in Law Reports, 2 Equity, 810.] John Cooke, by his will, dated the 28th of January, 1864, so far as is material to the present question, made the following disposition: " I bequeath all my personal estate, to which I shall be entitled at my decease, to my grandson, John Cooke Hilton, his executors, adminis- trators, and assigns, subject to the payment of my debts, personal and testamentary expenses, and legacies, and to the trusts hereinafter con- tained ; upon trust, in the first place, to convert and get in my resid- uary personal estate, and invest the same as hereinafter directed, with power at the discretion of my said trustee, or the trustees for the time being of this my will, to postpone the conversion : and upon trust to stand possessed of the said trust moneys, upon trust to pay to each of my daughters, Sarah Hilton and Jane Clarke, an annuity of £400, and on the death of my daughter Sarah Hilton, to pay to her children, includ- ing the said John Cooke Hilton, the like sum of £400 a year until the youngest child of my said daughter attain twenty-one ; and I declare that if any child of Sarah shall die in her lifetime, and any child of such child shall be living at her death, then the annual sum of £400, or the share to which such child would be entitled, if living at the death of my daughter, under the trusts aforesaid, shall be held by my said trustee or the trustee or trustees for the time being of this my wUl, upon such trusts and subject to such provisions in favor of such child as if its parent had lived till the youngest child attained twenty-one ; and upon trust to set apart, immediately after the death of my said daughter Sarah, or when and so soon as her youngest child shall have attained twenty-one, or which of those events that may last happen, £9,000 for the benefit of such of her children as shall be living at her death, and attain twenty-one, in equal shares. And I direct my said trustee, or the trustee or trustees, to pay the same to, and to settle the shares of, the chUdren or grandchildren of my daughter Sarah, by deed, or as my said trustee, or the trustee or trustees for the time being of my will shall in their discretion think proper ; and upon further trust immediatelj' after the death of my daughter Jane Clarke, to pay to her children the like sum of £400 a year, until the youngest child of my said daughter Jane shall attain twenty-one ; and I declare that the said £400 shall be held hold thereafter for the benefit of those entitled under the settlement or devise. Best V. Stamford, 1 Salk. 154 ; Davidson v. Foley, 2 Bro. C. C. 203 ; Marshall v. HoUoway, 2 Swan. 482 ; Maundrell v. Maundrell, 10 Ves. 259 (semble) ; Southampton ». Hert- ford, 2 V. & B. 54 ; Re Newberry's Trusts, 5 Ch. D. 746. — Ed. SECT, n.] CLABKB V. HILTON. 235 by my said trustee or trustees upon trust, and subject to the provisions in favor of Jane's children, corresponding with the trusts and provisions hereinbefore contained in favor of the children and grandchildren of Sarah Hilton, and upon ti'ust to set apart immediately after the death of Jane, or when her youngest child shall have attained twenty-one, or which of those events may last happen, the like sum of £9,000, for the benefit of Jane's children, upon trust and subject to provisions in favor of Jane's children and grandchildren, corresponding with the trusts in favor of Sarah's children and grandchildren ; and upon further trust to invest the sum of £400 and to pay the interest to Elizabeth Pickford for her separate use, and on her death, upon trust to pay and divide the said £400 equally among such of her children as may be then living, and if there should be no such children living at her death, then upon trust for J. C. Hilton, his executors, administrators, and assigns ; and upon further trust to pay Mary Ann Deane £25 a year during her life, to commence twelve months after my decease, to be paid half-yearlj' : if she marry, the annuity to thereupon cease ; and as to each of the annuitants, I direct my trustee, or the trustees or trustee for the time being of this my will, to invest a sum sufficient at the time of appro- priation to answer by the annual income thereof, the payment of the said annuity, and in the mean time pay the same out of the monej-s to arise from my personal estate ; such annuity, after appropriation, to be exclusivelj' payable out of the sum appropriated in exonera- tion of my personal estate, and such sum shall, subject to the payment of the said annuity, form part of the ultimate surplus of my personal estate." The testator then gave directions as to investments, and gave a house to J. C. Hilton, and directions to retain testator's pew ; he devised all estates vested in him as trustee or mortgagee to J. C. Hilton on the same trusts, and appointed John Cooke Hilton, E. Hilton, D. Clarke, and S. A. Clarke to be executors and executrix of his wUl, and directed that in case any dispute or question should arise between the persons interested under his wUl, and the trustee or trustees and executors of his wUl, with regard to the trusts and provisions thereof, the same should be settled by John May. The testator died in March, 1864, and his will was proved by Edwin Hilton and David Clarke, — the other executors had not yet proved. A question having arisen as to whether J. C. Hilton took the residue beneficially, this bill was filed. It was admitted that the act of Lord St. Leonards, 11 Geo. IV. & 1 Wm. rV. c. 40, did not apply to a bequest to one of several execu- tors. Mr. Bacon, Q. C, and Mr. Lewin, for the plaintiff. Mr. Malins, Q. C, and Mr. Osborne Morgan, for the trustees of t/he 236 CLABKB V. HILTON. [CHAP. IV. settlement of one of the daughters. Mapp v. EUcock ^ and Elleoek v. Mapp have settled the law upon this subject. The circumstance that the trusts declared do not exhaust the estate has been decided to be immaterial. The rule is, that where there is a plain implication on the face of the will that the testator did not intend the executor or trustee to take beneficial!}', he is to be considered a trustee for the next of kin. In this will the testator declared trusts, and described the proceeds of the real estate as trust moneys. Again, he directed a conversion to be made, which was unnecessary for the trusts declared, and would have been absurd if he intended to give the whole to J. C. Hilton absolutely. Then, as to the £400 given to Mrs. Pickford for life, remainder to her children, the testator went on to provide that in default of issue the principal should go to J. C. Hilton. This clearly showed an inten- tion that he was not to take the whole surplus. Again, the testator directs the sum appropriated to answer the annuities to form the ulti- mate surplus : but why form a surplus, if J. C. Hilton takes the whole after the specified trusts are satisfied ? All these considerations show a clear intention that J. C. Hilton should not take beneficiallj'. Barrs V. Fewkes.^ The mere fact that he took a specific interest under the will negatives the intention to give him the whole surplus after exhaust- ing the trusts. Saltmarsh v. Barrett ; ° Love v. Gaze.* Mr. Henshawe appeared for David Clarke, one of the executors, but took no part in the argument. Mr. Greene, Q. C, and Mr. Little, for J. C. Hilton. The question is one of intention, whether on the whole of the will the court can find an intention to make an immediate provision for J. C. Hilton. The mere circumstance that the testator used the words ' ' on trust " can make no difierence, because it is quite clear there is a partial trust which does not embrace the whole gift. The word " charge " might be held on the whole scope of a will to create a trust, as in Saltmarsh v. Barrett,' just as the word "trust" in Dawson v. Clarke,* coupled with the word " charged," was held not inconsistent with a beneficial interest. The real question is always. What is the testator's intention ? Again, in Hughes V. Evans,' the word ' ' trust " occurred more than once ; but it was held, on the view of the whole wiU, that a beneficial gift was intended. Applying that principle here, it is clear that J. C. Hilton was in- tended to take beneficially. The tenor of the wUl was, to make an immediate provision for J. C. iHilton, which could only have effect by holding that he took the residue. Mr. Bacon, in reply. 1 2 Ph. 793. 2 2 H. & M. 60. « 29 Beav. 474. AfSnned on appeal, 3 D., F. & J. 279. * 8 Beav. 472. 6 18 Yea. 247. » ]3 Sim. 498. SECT, n.] CLARKB V. HILTON. 237 Sm John Stuart, V. C. This ease belongs to a class as to which the most learned judges have differed in opinion. In Dawson v. Clarke,^ Lord Eldon and Sir William Grant held opposite views, and each main- tained his own opinion, after knowledge of the other." In King v. Denison,* argued by Sir S. Romilly on the one side, and Mr. Leach on the other, Lord Eldon pointed out the distinction between gifts by will upon trusts and gifts by will subject to trusts. " If," said Lord Eldon (page 272), " I give to A. and his heirs all my real estate, charged with my debts, that is a devise to him for a particular purpose, but not for that purpose only. If the devise is upon trust to pay my debts, that is a devise for a particular purpose, and nothing more, and the effect of those two modes admits just this difference : the former is a devise of an estate of inheritance for the purpose of giving the devisee the beneficial interest, subject to a particular purpose ; the latter is a devise for a particular purpose, with no intention to give him any beneficial interest." Here the testator, in the plainest language, has given to J. C. Hilton all his personal estate, subject to debts and legacies, and to the trusts thereinafter mentioned. And afterwards ; in referring to these trusts, he uses the words "upon trust" as a matter of course. But if the property is given to J. C. Hilton Subject to trusts specified, it cannot be held subject to any other trusts ; and if after satisfying the trusts specified there remain a surplus, there is nothing in the language of the gift or in the context to create a resulting trust in favor of the next of kin. In Mapp V. EUcock,* the trust covered the whole property, and the trustee took nothing but a mere trust estate. But even if the words were a gift to A. B. of aU the testator's estate on trust, the context might still show that the trustee was intended to take some beneficial interest. That occurred in Dawson v. Clarke.' Sir W. Grant noticed the case of Coningham v. MeUish,* as showing how far the court has gone in holding a trustee was to take beneficially. That case was mentioned with approbation by Lord Hardwicke in Hill V. The Bishop of London. In Hobart v. Suffolk, lands were devised to three persons and their heirs, to the use of them and their heirs upon the trusts thereinafter mentioned. The testator then directed them to convey part of the land to A. for life, and part to B. in tail, but gave no direction as to the residue of the fee ; and the court held there that there was a resulting 1 15 Ves. 409 ; on app. 18 Ves. 247. 2 For approval of Lord Eldon's opinion, see Ellcock v. Mapp, supra, and Eead v. Stedman, 26 Beav. 495, 503. — Ed. 8 1 V. & B. 260. ♦ 2 Ph. 793. s Pr. Ch. 31. 238 CLAEKB V. HILTON. [CHAP. rV. trast foi- the heir, — the gift being to three trustees, of whom two only were related to the testator. The principle of all these cases is plain. Where property is given to a man subject to certain defined trusts, there remains no right in any one but the donee when those trusts are exhausted. Where, however, an estate is given to a man in the character of a trustee, without any- thing to indicate that a beneficial interest is intended, then there is a resulting trust. In the present case the greatest difBculty occurs in the use of the expression that the donee is to stand possessed of the said trust-moneys on trust. If all the moneys were trust-moneys according to the strict meaning of the word, no part of them would be free from the trust. But the whole will must be taken together, and the words of gift give the whole property subject to the trusts, and not upon the trusts. When the trusts are satisfied and the trust exhausted, the rest of the property remains vested in the legatee or devisee discharged of any trust. But it is a difierent thing to hold that these words attach a trust to the sur- plus after the trusts described have been satisfied. There must be a declaration that John Cooke Hilton is absolutely entitled to the. property comprised in the testator's will, subject to the trusts therein contained. The costs must come out of the estate. "■ 1 In the following cases it was held that the trustee took for his own benefit the surplus that remained after satisfying the trusts expressly declared : North v. Cromp- ton, 1 Ch. Ca. 196 (but see Starkey v. Brooks, 1 P. Wnas. 390) ; Cunningham v. Hellish, 2 Vera. 247 ; Free. Ch. 31, s. o. ; Docksey v. Docksey, 5 Bro. P. C. (Toml. ed.) 39 ; 2 Eq. Ab. 506, s. c. ; Rogers u. Rogers, 3 P. Wms. 193 ; C. t. Talbot, 268, a. c. ; Mallabar v. Mallabar, G. t. Talbot, 78 ; Hill v. Bishop, 1 Atk. 618 ; Batteley V. Windle, 2 Bro. C. C. 31 ; Pratt v. Sladden, 14 Ves. 193 ; Walton v. Walton, 14Tes. 318 ; Dawson v. Clark, 15 Ves. 409 ; 18 Ves. 287 ; King v. Denison, 1 V. & B. 260 ; Cook V. Hutchinson, 1 Keen, 42 ; Wood v. Cox, 2 M. & Cr. 684 ; Hughes v. Evans, 13 Sim. 496 ; Russell v. Clowes, 2 CoU. 648 (but see Read v. Stedman, 26 Beav. 495) ; Be Cooper's Trusts, 4 D., M. & G. 757 ; Williams v. Roberts, 27 L. J. Ch. 177; 4 Jnr. N. s. 18, s. 0. ; Tucker v. Kayess, 4 K. & J. 339 ; Irvine v. Sullivan, L. E. 8 Eq. 673 ; Williams v. Arkle, L. R. 7 H. L. 606 ; Downer v. Church, 44 N. Y. 647. See, as illustrating the same principle, Hammond v. Neame, 1 Sw. 35 ; Hamley v. Gilbert, Jac. 354 ; Hadow v. Hadow, 9 Sim. 438 ; Browne v. Paull, 1 Sim. N. s. 92 ; Longmore v. Elcum, 2 Y. & C. C. C. 363 ; Cape v. Cape, 2 Y. & C. 543. Conf. Weth- erell v. Wilson, 1 Keen, 80. If property is given to one person subject to a charge or trust in favor of another person, and for any reason the trust cannot take effect, there is no resulting trust, but the trust sinks for the benefit of the intended trustee ; e.g., where property is given subject to a trust and no trust is declared (HeptinstaU v. Gott, 2 John. & H. 400), or subject to a trust to be declared and no trust is afterwards declared (Fenton v. Hankins, 9 W. R. 300), or subject to a trust which is void for illegality or uncertainty (Jackson V. Hurlock, 2 Eden, 263 ; Amb. 487, s. c. ; Wright v. Row, 1 Bro. C. C. 61), or sub- ject to a trust that fails by lapse (SutclifFe v. Cole, 3 Drew. 135 ; Noel v. Henley, 7 Price, 241 ; Dan. 211, 322). — Ed. ' SECT, n.] In RB VAN ^LAGAK. 239 In re VAN HAGAN. SPERLING V. EOCHFORT. In THE £[IGH COTTET OF JUSTICE, CHANCERY DIVISION, BEFORE SiB RiOHABD Malins, V. C, AiTGUST 6, 1880. [Seported in Weekly Notes (1880), 159.] In the Coukt of Appeal, November, 1880. [Reported in Weekly Notes (1880), 164.] Henry Van Hagan, by Ms will, dated in 1826, gave to his mother a general power of appointment over certain real estate, provided always that should his mother die without any will, then he gave the said real estate to Edward Clarke, subject to the payment of certain legacies. The mother of the testator many years.afterwards made her will containing a direction to this effect, — " and as to and concerning all the real estate whatsoever and wheresoever, of or to which I or any person or persons in trust for me am, is, or are seised or in any way entitled, or over which I have (either under or by virtue of the will of my deceased son), or over which 1 shall have any power to dispose, I give, limit, direct, and appoint the same unto and to the use of J. Sperling, F. WoUaston, and G. Sperling, their heirs and assigns, in trust for George E. Green, hia heirs and assigns, for ever. " George E. Green died in the lifetime of the testatrix, and a question was now raised whether the property went as in default of appointment, under the will of Henry Van Hagan, or whether it went as part of the real estate of the testatrix. Joshua Williams, Q. C, and K S. Ford, for the heir of the testatrix. J. Pearson, Q. C, and jRodwell, Q. C, for the devisee of Henry Van Hagan. The Vice-Chancellor having reserved his judgment, decided that this being real estate, the mere circumstance of the testatrix making an appointment which failed did not show an intention to make the real estate part of her general estate. The only object of the testatrix was to give the property to G. E. Green, and he having died in her lifetime, the result was that the appointment had wholly failed, and the property went in default of appointment, under the will of Henry Van Hagan, to the estate of Edward Clarke. This was an appeal by the trustees of the will of the testatrix from a decision of Vioe- ChanceUor Malins. Joshua Williams, Q. C, and S. S. Ford, for the appellants. J. Pearson, Q. C, and Sodwell, Q. C, for the respondents. The court (Jessel, M. E., James and Cotton, L.JJ.) reversed the order appealed from, and decided that the trustees of the will of the testatrix were entitled to the ap- pointed property, subject to a resulting trust in favor of the heir-at-law of the testatrix, if any. (a) (a) Chamberlain v. Hutchinson, 22 Beav. Hi ; Brickenden v. 'Williams, L. E. 7 Eq. 310, axxord. Conf. Mansell v. Price, Sugd. Powers (8th ed.), 943 ; Lefevre v. Freeland, 24 Bear, 403.— Ed. 240 0A8ti;b v. dod. [oecap. xv. SECTION ni. Where the Legal Title is transferred and a Trust declared as to a Part of the Property, hut no Intention expressed as to the Rest. ANONYMOUS. In the Exchequer Chambek, Teinitt Teem, 1452. [Reported in Fitzherbert's Abridgment, Devise, pZadtum 22.J TJUing rehearsed how a citizen of London, by his estate enrolled in the hustings of London, had devised certain tenements in the said city to his son and three others in fee, and his will was by the same tes- tament that one of the three should have all the profits of the said land during his life ; and now, since he who was to have the profits is dead, the heir, who was another of the feofiees, exhibited a bUl in chancery concerning this matter, and that the said devise was upon confidence, and prayed that the others should release to him. Wang. Since bj- his will he devised the said land to all four in fee, and by the same devise he made his will that one of them should have all the profits for his Ufe, it seems clear that, after the death of him who was to have the profits, the others should have the fee, and not release to the heir ; for it is not like a feoflTment in which no will is expressed, but since his will is expressed it shall be intended all his will, in which case they shall hold to their own use. FoKTESCUE, C. J. I see no diversity between a feoffment and a devise as to this intent ; wherefore, if you wiU not deny that it was upon confidence, it is right that you should release to the heir, which the other judges conceded. CASTLE V. DOD. In the Common Pleas, Michaelmas Term, 1608. [Reported in Crake's James, 200.] Upon a special verdict the case was that A., tenant for life, granted by file his estate to B., and by indenture limited the use to B. for the life of A. and B. ; and if he died, living A., that it should remain to C. Afterward, B. died, living A. C. entered, and let to D. for years, and died, living A. Whether the lessee should retain this as an occupant, living A., or SECT, in.] CASTLE V. DOD. 241 that A. should have it again (because no other use is limited after the death of C, by reason of his ancient use), was the question. It was adjudged, after argument, that C. should have it as an occu- pant, and his lessee should hold it as an occupant, and that A. had not any residue of the use in him ; for although, where tenant in fee makes a deed of feoffment, and limits the use for life or in tail, and doth not speak of the residue, it shall be to the feoffor, or conusor, because he had the ancient use in him in fee ; yet, when tenant for life, or he who hath particular estate, grants his estate by fine, and limits the use for years, or for a particular time, it shall not return to him, but be to the conusee, although the fine were without any consideration ; because he who hath the particular estate by fine is subject to the ancient rent and forfeiture, which is a sufficient consideration to convey the estate to him.^ And although it was objected that, at the common law, there was not any occupant of a use, and this statute hath vested the pos- session in such manner and nature as the use was, ergo, there shall not be an occupant of a possession vested to a use. Coke, C. J., said: This statute is intended that the land shall have the same qualities as the use had, viz. if the use was a conditional estate in the land, it shall be conditional, but it shall not have the collateral qualities as the use hath ; for there shall be a tenancy by the curtesy of such an estate vested, and it shall be assets : and by the same rea- son there may be an occupancy ; for the use and land are now incorpo- rated and of one nature. And therefore it was resolved in Baker's Case, although the use may be waived without matter of record, yet the estate vested to a use cannot at this day be waived. 1 " But if the use be declared to the grantor for an estate for life or years, the re- version, though not expressly disposed of, does not result to him, but vests in the grantee ; for by the opposite construction the particular estate would merge in the re- version, and the grantor would resume the entire fee, against the express terms of the declaration of uses, which restricts his interest to the particular estate. If, however, the use be declared to the grantor for an estate tail, he may also take the reversion by resulting use ; for an estate tail and the reversion in fee may subsist together in the same person. (05) "If the feoffment or conveyance of the legal possession be made for a particular estate only, as a gift in tail, or a lease for life or for years, the tenure alone thereby created, with its attendant services and obligations, supplied a consideration sufficient to pre- vent the use from resulting, and to carry it to the donee or lessee ; and this doctrine applies at the present day. But an express use declared in favor of another would rebut the use implied from the tenure in such eases. (6) The statute Quia emptores pre- vented the creation of any tenure which might carry the use upon a conveyance of the fee-simple."(c) Leake, Digest of the Law of Property in Land, 107-108. — Ed. (a) Bacon on Uses (Rowe's ed.), notes, p. 223 ; 1 Sanders on Uses, 103. See Adams V. Savage, 2 Salk. 679 ; Ld. Eaym. 854. (b) Perkins, §§ 534-537 ; 2 Leon. 16, Brent's Case ; Dyer, 312 a. . (c) Perkins, §§ 528, 529. VOL. I. 16 242 HOBAET, BAR. V. COMITISS. SXTFFOLK, ETC. [CHAP. IT. HOBART BAR. v. COMITISS. SUFFOLK, MAYNARD, COL- CHESTER, AND OtHEES. In Chancery, before Sir Simon Harcourt, K., Hilabt Term, 1709. [Reported in 2 Vernon, 644.] Serjeant Matnard, by wiU, devised to the Countess of Suffolk, the Lord Gorge, and the defendant Colchester and their heirs, to the use of them and their heirs, all his several manors and lands, upon the trusts after mentioned ; and then directs that, after the death of the Countess, his wife, they should convey part of the estate to Hobart for ninety- nine years, if he so long lived ; remainder to his wife as to part for life, remainder to the first son for life ; and other part of his estate in like manner to his granddaughter, the Countess of Suffolk, and her issue male for life, with a cross-remainder, on failure of issue male of either of them, — the will saying nothing more as to the remainder in fee. A question was now made by Mr. Colchester, and insisted upon, that, on failure of issue male, both of Hobart and Stamford, the re- mainder of the estate was to go to the trustees, and could not be a resulting trust for the heir, — the devise being to them and their heirs, upon the trusts after mentioned, which imports only that they should be trustees for the purposes after mentioned, and, when those estates were spent, it was to remain with them and their heirs, to the use of them and their heirs, which excludes any trust for the heir-at-law. The Lord Chancellor. This is not fully within the reason of the case. "Where a devise or grant is in trust for payment of debts, there the whole estate is affected with the trust, but here the remainder is not affected with any trust declared ; but, considering the devise to three persons, and the Lord Gorge no relation to the testator, it could not be intended a provision or bounty, as it might have been, if the devise had been to Colchester alone, and decreed the remainder in fee to the testator's right heir.^ 1 Sherrard v. Harborough, Amb. 165 ; Hopkins v. Hopkins, Talbot, 44 ; Moore v. Ma- grath, Cowp. 9 ; Northern v. Carnegie, 4 Drew. 587 ; Pollard's Trusts, 32 L. J. Ch. 657 ; Travers v. Travers, L. R. 14 Eq. 275 ; Easterbrooks v. Tillingliast, 5 Gray, 17, accord. " Here is to bee observed the intendment of law, that when a feoffment is made to a future use, as to the performance of his last wUl, the feoffees shall be seised to the use of the feoffor and of his heires in the meane time, (a) Ipsce etenim leges cupiutU id jure regantur. And reason would that seeing the feoffment is made without consideration, and the feoffor hath not disposed of the profits in the meane time, that by construction and intendment of law the feoffor ought to ocoupie the same in the meane time. And so it is when the feoffor disposeth the profits for a particular time inprcesenti, the use of the inheritance shaU be to the feoffor and his heires, as a thing not disposed of." Co. Lit. 271a.— Ed. (a) Woodliff V. Drury, Cro. El. 439 ; Clere's Case, 6 Kep. 18 ; Cro. El. 877 ; Cro,' Jac. 81, s. c. — Ed. SECT, rv.] dowman's case. 243 SECTION IV. Where the Conveyance to the Trustee is without Consideration. NOTE. Trinitt Term, 1535. [Reported in Benloe, 16, plaaium 20.] Note by all the justices and sergeants in the common bench, that, if a man enfeoffs another in fee of land by deed, without any consideia- tion in the premises of the deed or dehors, but the habendum is to the feoffee ad usum sutim proprium, as is recited in the deed, and still the feoffee suffers the feoffor to take the profits of the land for divers years afterwards, nevertheless the feoffee shall be adjudged to have the right to the said land in fee, and not the feoffor, for the use was limited to him by the deed, which was a good consideration. Vide 7 Eliz. PL Com. f. 308.1 BOWMAN'S CASE. In the Commok Pleas, Easter Term, 1586. [Reported in 9 Reports, 7ft.] Thomas Dowman, Esq., and Eliz. his wife, brought an assize of novel disseisin before John Clench and Francis Rodes, justices of assize in the county of Tork, against Ed. Vavasor, George Vavasor, and others, and complained they were disseised of their freehold in Spaldington, Willytost, and Southcave, in the same county, &c., and made their plaint of , six houses, three hundred acres of land, one hun- dred acres of meadow, and two hundred acres of pasture ; and all but the said Edward Vavasor pleaded nul tort nul disseisin, and the said Edward pleaded that one Peter Vavasor, Esq. , was seised of the tene- ments aforesaid put in view, and now in plaint in fee, against whom Andrew Windsor, Esq., William Vavasor, and others, 2 Jan. anno regni dominee El. 15, brought a writ of entry in the post of the tene- ments aforesaid, against the said Peter Vavasor, returnable Octab. Hil., at which day a common recovery was had against him with single voucher, and executed by habere facias seisinam 4 Feb., &c. quee quidem recuperatio in forma prced' habebaf, and was to the use of the said Peter 1 Stapleyu Lark, Goulds. 82, pi. 23 ; Yelverton ». Yelrerton, Noy, 19, perPopham, C. J., accord. — Ed. 244 bowman's case. [chap. iv. for his life, without impeachment of waste, and afterwards to the use of his eldest son in tail, and so to the ninth son in seniority in taU, and for want of such issue, to the use of the said E. Vavasor, brother of the said Peter, for his life, without impeachment of waste, and af- terwards to the use of his eldest son, and to the heirs males of his body, and so to the ninth son in their senioritj'^ of the like estate ; and for want of such issue, to the use of the said G. Vavasor, Ea. Vavasor, Mar. Vavasor, Bob. Vavasor, Tho. Vavasor, and Rich. Vavasor, broth- ers of the said Peter, to every of them the like estate, with like remain- ders to their ninth issue male, in their seniority in tail ; and afterwards to the use of the heirs males of Peter Vavasor, Knight, lawfully begot- ten ; and afterwards to the use of the right heirs of the said Eich. Vavasor, and alleged the execution of the uses by force of the statute of 27 H. VIII., and the death of the said Peter Vavasor without issue, after whose death he entered as in his remainder, and gave color to the plaintiffs. To which the plaintiff' replied and confessed the recovery, as the said E. had alleged, but farther said, that the said recovery was to the use of the said Peter and his heirs, and that, after the death of Peter, the tenements descended to the said Eliz., wife of the said Tho. Dowman, as sister and heir of the said Peter, &c., absque hoc quod re- cuperatio pradicta tenementorum prced', etc., in forma prcedicta haUta, fuit ad usus in harra pradici Edwardi superius specijicat', prout, etc. And thereupon issue was joined, and it was found by the recognitors of the assize that the said Peter, being seised in fee, suffered the said recovery of the tenements aforesaid, as the said Edward had alleged; and farther, the recognitors of the assize said, quod queedam indentura facta fuit inter prcefat' Petrum Vavasor et prted' Andream Winsor and others, the recoverors, of the other part, cujus tenor sequitur in heec verba ; which indenture bears datejonmo die Februarii anno 15 El. regince, and witnesseth, " that it is covenanted, concluded, condescended, de- clared, and fully agreed between the said parties, and either of the said parties, for himself and his and their heirs, doth conclude, conde- scend, declare, and agree by these presents to and with the other, that is to say, whereas the said Andrew, &c., have this present term of St. Hilary recovered to them and their heirs by writ of Entrie sur disseisin in le post, against the said Peter Vavasor, according to the usual order and form of common recoveries heretofore used, the manor of Spaldiflg- ton, &c., that the intent and true meaning of aU the said parties now is, and at the time of the said recovery had and suff'ered was, that the said recoverors and their heirs immediately from and after the re- covery so had and executed should and shall stand and be seised of the said manor, &c., to the only uses and intents hereafter bj' these pres- ents set forth and declared, and to no other uses, intents, and purposes, that is to say,'' and declares and expresses the same uses mentionud SECT. iv.J dowman's case. 245 and alleged in the bar of the said E. Vavasor, without any variance. And farther, the said recognitors of assize found that the tenements now put in view were, «&c., parcel of the said manor of Spaldington, sed utrum indentura prced' post reeuperationem prced' per prafat Petrum Vavasor Armig' in forma preed^ fact, et habit' ger' daf prced' prima die Februarii ac prim' deliberaf 15 die Februarii anno 15 supradict' post reeuperationem praid! existem! ad usus in eadem specific' sit bona et sujfficiens in lege ad ducen- dos et declarendos usus prced^ recuperationis prced' tenementorum in visu recognitorum posit', et in qucerela prce^ specific' necne iidem recognitores penitus ignorant, et inde petuni advisamentum justic' et cur' hie, et si videhitur eurice, that the said indenture is good and sufHcient, &c., then they found that the said recovery of the tenements aforesaid was to the same uses in the bar of the said E. Vavasor, as the said E. had alleged ; and that the other defendants had done no wrong nor dis- seisin; and if the said indenture is not good and sufficient, &c., then they found against all the defendants. And for diflSculty the said jus- tices of assize did adjourn the parties and the record before the justices of the Common Pleas, de audiendo et recipiendo quod iisdem justiciar' do- mince RegincB de prced' Banco adtunc et ibid' considerand' videbitur in hac parte. And in this case two questions were moved and argued by the sergeants, at the bar. 1. If the said indeutm'e made after the said recoverj was suflBcient in law to direct and declare the uses of the said precedent recovery.^ And after the case had been often argued by the sergeants at the bar, the case was argued by the justices at the bench. And it was unanimously resolved by all the justices of the bench, that the said indenture subsequent was sufHcient to direct and declare the uses of the precedent recovery against the said Peter Vavasor and his heirs, for so it is concluded and declared by the deed indented, that the intent and true meaning of all the parties now is, " and at the time of the said recovery was, that the said recoverors, &c., should stand seised, &c. , to the only uses and intents by these presents set forth and declared, and to no other use, intent, or purpose." Against which ex- press affirmation and declaration by deed indented, the said Peter or his heirs shall never be admitted or received to say that no such uses were declared at the time of the said recovery, but that the said re- covery, notwithstanding the subsequent declaration shall be construed and adjudged by force of a use implied by operation of law, to be to the use of the said Peter and his heirs : but this declaration by the said deed indented has this operation in law against the said Peter and his heirs, that there was a present, certain, and complete agreement and declaration of the said uses at the time of the said recovery, for so the indenture expressly purports ; and therefore all that has been objected, 1 Only the facts of the case and the opinion of the court upon this point are given. — Ed. 246 dowman's case. [oecap. iv. that the declaration ought to be precedent, or present and certain and complete, and not as a communieation with reference to matter to be put in writing afterwards, was well agreed ; but now this deed Indented in judgment of law doth import and witness against the said Peter Va- vasor and his heirs, forasmuch as nothing appears to the contrary, that there was a certain and complete declaration of uses at the time of the said recovery, and this stands upon pregnant and apparent reason ; for inasmuch as Peter and his heirs are only to take advantage for want of declaration of uses, reason requires that this declaration of the said Peter by his deed indented should stand against him and his heirs ; and this case is not Uke the said cases in 39 Ass. and 46 E. III., cited before ; for in such ease, if the lands were held before in socage, the tenant could not create or grant knight's service, which was not due before ; and in the record the -infant was not made heir to J. But here, without question, Peter Vavasor, the tenant of the land, might, at the time of the recovery, limit what uses he would, and Eliz. is heir to Peter ; and the reasons of the book in 35 H. VI. are, 1. The 'heir in such case was not bound, because the words of the charter were but by way of recital. 2. That the words of the deed indented were all the words of the lord, and not of the tenant, the heir of whom should be bound, and that the brother of the half-blood was not heir to the ten ant, who was party to the deed. But in our case, 1. It is not. by way of recital, but an express aflSrmatiori and declaration. 2. It is the ac- knowledgment and declaration of the tenant of the land itself, and the said Elizabeth, one of the plaintiffs, is heir to Peter Vavasor. Vide 10 E. III., 22, 24, Rob. de Vale's Case. And as to the objection which was made, that the said privilege to be without impeachment of waste, cannot be without deed, &c. To that it was answered and resolved, that, if it was admitted that a deed in such case should be requisite, yet without question all the estates limited would be good ; although it is admitted that the clause concerning the said privilege would be void. And, therefore, if a man enfeoffs one by parol to the use of A. for hfe, without impeachment of waste, with divers remainders over, admitting that the clause of ' ' without impeachment of waste " in such case should be void, j'et the estate for life, with the remainders over, is well exe- cuted. And a difference _was taken between indentures precedent, which shall direct the uses of a subsequent recovery, and indentures subsequent ; for when precedent indentures are made, and afterwards a recovery follows accordingly,' there no averment can be taken by parol 1 Countess of Rutland o. Earl of Eutland, Cro. Jae. 29. [1604. " Upon evidence ' to a jury, it was held by all the court, and so delivered for law to the jury, that, if there be an indenture for the levying a fine to such persons, before such a time, to such uses, and the fine be levied to the same persons within the same time, it shall be to the same uses ; and no averment can be to the contrary, unless it be by other matter in writing. SECT. IV.] cowman's CASE. 247 that the recovery was to other uses than are declared in the indenture ; for nothing vests in any till the recovery is had, and in such case a declaration by parol will not control the declaration by deed; but against an indenture subsequent, declaring the uses of a recovery prece- dent, there, averment may be taken that other uses than in such in- denture are declared were expressed and limited before and at the time of the recover}', because, by such limitation, the use and estate was vested according to such limitation, which cannot be devested by any declaration by indenture subsequent. It was also resolved (as appears before) that the said declaration subsequent by deed indented should stand good against the said Peter Vavasor and his heirs, foras- much as appeareth there was no other declaration of any other use ; but if, after the recovery had, Peter Vavasor had sold or given or charged the lands to others, which would be defeated and annulled by the declaration subsequent, there such subsequent declaration of itself should not subvert the mean estates, charges, or interests, unless it could otherwise be proved that, by the certain and complete agreement of the parties, the recovery was had to such uses ; for by judgment of law such declaration subsequent shall be sufficient when no other cer- tain and complete declaration or limitation of any other use, either at the time or before the recovery be made, or any estate or interest mesne be vested : and as when a common recover}'' is suffered without consideration, it is in judgment of law without any proof to the use of him who suflTers the recovery, if nothing is proved to the contrary ; so when such subsequent declaration (as in the case at bar) is made, it shall be sufficient of itself, without any other proof of the declaration of the same uses, either before or at the time of the recovery, if no other limitation of the use was made, nor any mesne estate or interest of any other thereby defeated. And because the intention of the parties is the direction of uses, in the argument of this case many cases were put where an act subsequent shall declare the intention of a general act precedent ; as if tenant in tail has issue two daughters and dies, and the elder enters into the whole, and afterwards makes a feoffment thereof with warranty, this is a lineal wan-anty for one moiety and a collateral warranty for the other, for the feoffment subsequent shall declare the intention of the general entry, that it was only for herself, or otherwise it would be a warranty which commenced by disseisin for one moiety, and therewith agreeth Lit. cap. Gar. f. 160. So if the lord comes upon the tenancy, and takes and drives away an ox, if he " But if a fine be levied to other persons, or at another time after, it may well be averred by parol to be to other uses. For in the first case the indenture is directory to the fine, and in the other case it is but evidence."] 5 Rep. 25 h, s. o. Tregany v. Fletcher, 1 Ld. Bay. 155 ; fWk. 676, s. c. ; Jones v. Morley, 1 Ld. Ray. 289, 290 ; Comb. 429 s, o ; Sn;:>il*fl« ->, Stapilton, 1 Atk. 7. — Ed. 248 SHOETEIDGE V. LAMPLUGH. [CHAP. IT, impounds it, the taking shall be adjudged for a distress ; but if he kills the ox, this act subsequent shall declare his intention ab initio, and shall make him a trespasser, and therewith agree 12 Ed. IV. 8, b, 28 H. VI. 5, &c. And as to the fourth reason or objection which was made, that it was but matter of evidence tending to prove to what uses the recovery was had, that has been answered before, that in judgment of law it is sufficient to declare the use when nothing appears to the contrarj-, as in the case of indentures precedent, or when a recovery is suffered without any consideration, and without limitation of any use ; but as to the point of pleading, it was resolved that, as well in the case at bar as in the case of an indenture precedent, and recovery suffered without consideration, the usual form of pleading ought not to be altered, sc. to aver that the recovery was suffered to such uses, and upon the evi- dence the court ought to direct the jury according to law, or that they should find the truth of the case, as in the case at bar they do. And the justices in this case cited a former resolution in the point in the Court of Wards, between the same parties (Hil. 21 EL), the whole special matter as before being found by office, and transcribed into the same court, where, by Sir Christ. Wray and Sir James Dyer, assist- ants to the said court, and by the advice, also, of other justices, it was resolved that the said indentures subsequent were sufficient to declare the uses of the recovery precedent, because nothing appeared to the contrary. And as to the fifth and last reason or objection which was made, it was answered and resolved that no mischief or inconveniency could ensue upon this construction, as was pretended at the bar, but great inconveniency would ensue on the other side, for the inheri- tances of many subjects in England depend upon such declarations sub- sequent, or at least upon indentures which, in truth, were deUvered after the recoveries suffered or fines levied. And these resolutions stand with the common opinion of men learned in the law and com- mon experience ; and the alteration of such opinions which concern assurances of inheritances would be too dangerous. SHORTRIDGE v. LAMPLUGH. In the Queen's Bekch, Michaelmas Term, 1702. [Reported in 2 Lord Baymond, 798. i] Ereoe upon a judgment given in C. B. in an action of coveiihuit brought by Thomas Lamplugh against Elizabeth Shiers. The plaintiff declared that Thomas Ashby being seised in fee of a piece of ground in Westminster, the eleventh of May (3 W. & M.), by indenture 1 2 Salk. 678 ; 3 Salk. 386 ; Farr. 71 ; 7 Mod. 71, s. c. — Ed. SECT. IV.] SHOETEIDGB V. LAMPLUGH. 249 then bearing date demised it to John Griffith for sixty-one years, ren- dering a pepper-corn rent for the first year, and £100 per annum for the sixty years ensuing; in which indenture Griffith covenanted for himself, his heirs and assigns, to pay the said rent, and to maintain the houses agreed to be built upon the said ground in good repair ; that Thomas Ashby, by indenture dated the twenty-eighth day of September (3 W. & M.), in consideration of 5s., bargained and sold the premises to Sir Phihp Meadows and others for one year; and that the said Thomas Ashby, by indenture dated the twenty-ninth of September fol- lowing, released and confirmed the said premises to the said Su- Philip Meadows and the others in fee ; by virtue of which indentures of bar- gain and sale and release, and by virtue of the statute of 27 H. VIII. c. 10, for transferring uses into possession, they were seised of the reversion in fee ; then he shows a lease and release from Sir Philip Meadows and the other grantees to Lamplugh in the same manner as he had pleaded the former lease and release ; then he shows that the interest of Griffin came by assignment the twenty-first of May (4 "W. & M.), to Elizabeth Shiers ; and then he assigns a breach in non- payment of rent due for five years and a half, and in default of repairs. The defendant demurred to this declaration, and showed for cause that the declaration est duplex et caret forma. And after argument, judg- ment was pronounced in C.B. for the plaintiflT, and a writ of inquiry was awarded, and damages given £760, and then final judgment was entered for the plaintifi*. Upon which Elizabeth Shiers, the defendant, brought a writ of error ; and pending it, she died. And Shortridge, as executor to Elizabeth Shiers, brought a writ of error coram vobis residet, and assigned the general errors. And it was argued by Mr. Peere Williams and Mr. Raymond at several daj'S for the plaintiff in error, and by Mr. Sergeant Darnall, Mr. Broderick, and Mr. Weld, for the defendant in error. And the counsel for the plaintiff argued that the judgment was erroneous, and ought to be reversed, because the plaintiff had not entitled himself to his action of covenant ; for he makes title to it as grantee of the reversion, and he has not entitled himself well to the reversion, because he makes title to it by lease and release, but he has not shown that the release was made upon any consideration, nor is there any use declared ; the consequence of which is, that although the estate in law passed by the release from the releasor to the releasee, yet the use remained in the releasor, which drew back to It the estate in law again ; and so the reversion continues, notwithstanding anything that appears to the contrary, in Thomas Ashby and his heirs ; and therefore that the plaintiff could not maintain this action. And they argued, that although at common law he who had the estate in the land had also all that one could have there, uses not being then in- vented (for they were afterwards invented by the men of religion, after 250 SHOKTEIDGE V. LAMPLUGH. [CHAP. IV. all other attempts had been frustrated, to avoid the Statutes of Mort- main, Mag. Chart, c. 36, 7 Edw. I. de reb'giosis, West. 2, c. 32, as appears by 2 Leon. 14, Brent's Case,^ and in the time of the wars between the Houses of Lancaster and York the}- were encouraged for the mutual convenience of both parties, in the preventing of escheats and forfeitures) ; nevertheless, after that they were invented, and that feoffments to uses were become a sort of common conveyance (which happened in the reigns of Henry VI. and Edward IV., as appears by the reports) , the estate in the land, and the use of it, were regarded as distinct things : and then a man miglit have conveyed the estate to another, and retained the use to himself; or might have passed the estate to A. and the use to B., or might have granted the use and re- tained the estate to himself: but the conveyance of the estate in the land did not convey the use, unless a good consideration was mentioned in the convej-ance ; or that the intent of the parties appeared that the use should pass as well as the estate. Therefore, before the statute of 27 H. VIII. c. 10, if A. made a feoffment, levied a fine, or suffered a common recoverj^ without a use declared, and without consideration, of lands, &c., the feoffee, conusee, and recoveror stood seised of the said lands to the use of A. Then since the statute of Henry VIII. the law as to this matter is not altered ; for the said statute intended only to execute the use in the possession, and by that means to destroy the use ; but it did not intend to make any other thing pass by the conveyance than that which passed before. And therefore the use, not passing by the release in this ease, drew back to itself the estate passed by it ; and the statute executed it in possession. And to prove that a feoffment made without consideration or use declared would at this day be to the use of the feoffor. Dyer, 146 ; 2 EoU. Abr. 781, F. ; Co. Litt. 271, 23, were cited. The same law of a fine. Beckwith's Case." The same law of a recovery. Argoll v. Cheyney.' " Now there is the same reason that the use should not pass by the release without consideration or use declared as for a feoff- ment, fine, or recovery. As to the precedents cited by the counsel for the defendant in error, where feoffments are pleaded without consid- eration shown, or use declared, Co. Entr. 410, 11 ; Heme, 25 ; "Winch, Entr. 1120 ; 2 Brown, Entr. 152 ; Robins. Entr. 468, release pleaded to lessee for life without consideration or use shown. Co. Entr. 69 ; East. 694, &c., it was answered, that all these books passed sub dlentio; but that one cannot show any case where it was adjudged that such a release would be to the use of the releasee ; and that there are books where the pleading is to show the consideration or use. 2 Saund. 11, 277 ; 2 Ventr. 120 ; Co. Entr. 264, 220, 474, and the reason of the law as aforesaid is agreeable. As to the objection made by the defendant 1 2 Inst. 75. ^ 2 Eep. 58. » Latch, 82 ; Palm. 462. SECT. IV.] SHORTKIDGE V. LAMPLTJGH. 251 in error's counsel, and in this case it was suflBciently averred, that this release was to the use of the releasee, because it is said that virtute cujus he was seised, &c. And for this Dyer, 254 h ; Cro. Eliz. 678 ; Cro. Car. 221 ; W. Jones, 245 ; Cro. Ja. 549 ; 2 EoU. Eep. 466 ; 3 Co. 44, were cited, where it is held that an averment with virtute cujus is sufficient. It was answered, that this was a conclusion without prem- ises, or upon premises that will not warrant such a conclusion, and therefore it will not avail. And as to the cases cited, they were for the most part after verdict, which aids many defects. Another objec- tion urged by the counsel of the other side was, that this release inured by way of enlargement for the lease for a year, and therefore would participate of the consideration of it, and that the lease and release made but one conveyance. But to that it was answered, that the lease and release made but one conve3-ance as to the passing of the fee ; but that they were in truth distinct conveyances, and had different operations, the one by the statute of 27 H. VIII., the other by the common law. And as to what is said, that the release inures by way of enlargement of the estate of the lessee, it is true that it gives him a greater estate than he had before, but that notwithstanding it destroyed the estate for years by merger ; and it cannot participate of the con- sideration contained in the lease, which is perfectly distinct. And the counsel for the plaintiff in error relied much upon the case in Edwards V. Morgan,^ where in covenant brought by the assignee of the rever- sion against the lessee, judgment was stayed, because the plaintiff did not make mention in his declaration to whose use the grant of the reversion was, nor the consideration of the grant ; which case seems to be in point. Sed non attocatur. For per Holt, Chief Justice, before the statute of 27 H. VIII. c. 10, such pleading as in this case had doubtless been good, and the statute has not altered the way of pleading ; but since the said statute, pleading of a feoffment, without showing the use or the consideration, with an averment virtute cujus, &c., has been held good. Plowd. 478. And the reason is, because though no use or consideration is shown in pleading of the feoffment, it does not follow from thence that such feoffment will be to the use of the feoffor; for that is matter of fact extrinsical from the deed, which might have been declared by parol before the statute of 29 Car. II. c. 3, and now by writing, though it be not a deed ; and therefore if it was made to the use of the feoffor, it ought to be averred accordingly. But it would be hard that the judges should construe such a feoffment, or the release in this case, to the use of the feoffor or releasor, where it does not appear ; but if they were made to such use, it ought to be shown on their side ; and until that be shown, they must be intended to be made to the use of the feoffee and releasee, especially since the » 3 Lev. 233. 252 LORD ALTHAM V. BABL OF ANGLESEY. [CHAP, IV. statute of 27 H. VIII., for now if a feoffment or release should not be intended to be to the use of the feoffee or releasee, they would be vain and to no purpose ; for, according to the case RoUe v. Osborn,' he would have his old estate, and the warranty would remain ; and if the lands were of the part of the mother, they continue so. And therefore the reason of such feoffments and releases differs much from what they were before the 27 H. VIII., for then there might be some reason to continue the use to remain in the feoflbr, &c., because, notwithstanding that, it was to some purpose, viz. to defraud the lord of his guardian- ship, or to conceal the tenancj' of the freehold, &c. The case in Co. Lit. 23 is only, that where a man makes a feoffment without valuable consideration to divers particular uses, so much of the use as he makes no disposition of remains in him ; and that is reasonable, because the reason of the making of the feoffment appears, viz. the raising of the particular uses. But in this case no reason of the making of the release appears, if it was not to the use of the releasee ; and therefore it must be to the use of the releasee, tiU the contrary appears. But he agreed that if particular uses had been limited upon the release, aU the other uses that had not been limited would be to the use of the releasor, according to Co. Lit. 23. All the other judges agreed with Holt, Chief Justice. And Gould, Justice, said that in the case of Reynoldson V. Blake, in C. B. Pasch. 9 Will. III. [see 3 Salk. 25, 40, 1 Ld. Kay. 192], the grant of a rectory was pleaded without averment of the considera- tion or use ; and adjudged that it was well enough, the exception being taken by himself. Like the case of a confirmation of a rent service to the tenant for life of it, to hold to him and to his heirs ; by this a fee passes to the tenant for life. Litt. sect. 549 ; Vaugh. 44.'' LORD ALTHAM v. THE EARL OP ANGLESEY. In the Queen's Bench, Easter Term, 1709. [Meported in Gilbert, 16.'] On an issue directed out of chancery, to be tried in B. R., the case appeared to be thus : Tenant in taU, remainder in tail, with remain- ders over. Tenant in tail, having a mind to dock the entail and bar the remainders, levies a fine with proclamation sur conusance de droit come ceo, &c., to J. S. and his heirs, in, order to make hiua tenant to the precipe ; but no use of this fine was declared. Seven years after- wards, a precipe was brought against J. S., who came in and vouched the conusor of the fine, who vouched over the common vouchee, and the 1 Hot). 20. a See "Walker v. Snow, Palm. 359. — Ed, ' s. c. 2 Salk. 676. — Ed. SECT. IV.J LORD ALTHAM V. EAEL OF ANGLESEY. 253 question here was, if J. S. were a good tenant to the precipe, and the common recovery well suffered.^ It was resolved by Holt, C. J., Powel, J., Powis, J., and Gold, J., that the said J. S. was a good tenant to the precipe, and that the recov- ery was well suffered and all the remainders barred. This question doth arise principally upon the Statute of Frauds and Perjuries, 29 Car. II. c. 3, whereby it is enacted that all declarations or creations of trusts or confidences of any lands, tenements, or heredit- aments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or else by his last wUl in writing, or else they shall be utterly void ; provided always, that where any conveyance shall be made of any lands or tenements, by which a trust or confidence shall or may arise, or result by implica- tion or construction of law, or be transferred or' extinguished by an act or operation of law, then and in every such case such trust or confi- dence shall be of the like force and effect as the same would have been if this statute had not been made. It was unanimously agreed that this statute did not extend to this case, viz. where there is only cognizor and cognizee, and that it extended only to third persons ; though it was objected that, in this case, when, by the fine, the legal estate was conveyed to J. S. and his heirs, and no use declared of it, that the use did result to conusor and his heirs, and then, before the precipe was brought, the legal estate was out of the conusee, by virtue of the statute for transferring uses into possession. But Holt, C. J., and Powel, J., held in this case, that when a fine is levied or a feoffment made to a man and his heirs, the estate is in the conusee and feoffee, not as a use, but by the common law, and may be averred to be so ; and for the form of pleading the averment you may see Co. Ent. 219, 220. "Where a fine was levied, and the conusee, in plead- ing, averred, Guj us quidem finis pretextu predict', 3. S. fuit seisiius de, &e., cum pertinent in Dominico suo ut de feodo, and in Plowd. 477, 478. A feofBnent was pleaded habendum to A. and his heirs for ever, virtute cujus feoffment idem A.fuit seisitus de, &c., cum pertinent in Dominico suo ut de feodo ; and in this case it plainly appears that the intent of the fine was to make the said J. S. a tenant to the precipe for the common re- covery, and when the common recovery is efl'ected, a use shall arise by operation of law, from the conusor and his heirs, ^ from whom the estate first moved. 1 A part of the case relating to a question of procedure is omitted. — Ed. 2 See the case of Long and Buckridge, Trin. 4 Georgii adjudged that the averment of cujus quidem finis pretextu, &c., is only expressio eorum quae tacite in simt, et nihil operatur, and that prima fade the fine shall pass the estate to the conusee ; and to bring the use hack to the conusor, the conusor must show that the intent was not to give it to the conusee ; for else the conusee shall he deemed to take the estate by the com- mon law. And this ease of Lord Anglesey and Altham was there held to be good law. 254 LORD ALTHAM V. EAEL OF ANGLESEY. [CHAP. IV. Holt, C. J., held that uses were not within this statute, but that the statute did restrain only the operation of trusts and confidences in chancery ; but all the other justices held the contrary, and that uses were within it ; for the common law makes no distinction between trusts and confidences, and uses ; and there was no foundation to make a dif- ference between trusts and uses, since the Statute 27 H. VIII., though they have done it in chancery ; and now, since the Statute of Frauds, 29 Car. II. c. 3, no stranger can take a use by any parol averment.^ If a fine be levied to a man and his heirs, to the use of him and his heirs, in this case he shall take by the common law and not by way of use ; and in this case there may be a parol averment to prevent a re- sulting use to the conusor in fee ; for when the fine is levied a use doth immediately arise, either to the conusor and his heirs or to the conusee and his heirs ; and when there is a subsequent deed, it ouly shows what the intent of the parties was at the time of the fine levied : Bowman's Case ; so that when a fine is levied a use doth arise by implication of law to the conusee and his heirs, and consequently this case is excepted out of the statute. The fine and recovery here make but one conveyance ; and if the use should result to the conusor and his heirs, it would destroy the middle part of the conveyance, and defeat the plain intention of the parties, which was to put the use in the conusee ; and this is evident, because the conusor, by suffering him- self to be vouched, has owned it. And how could tenant in tail make himself tenant in fee, if so be this must be construed a resulting use? As to an objection that was made, that there might be a long time between the fine and recovery ; admitting that there had been a long time between the fine and recovery, yet there it may be made good by a parol averment before the Statute of Frauds, and by writing since, upon the reason of Bowman's Case, if nothing were done intermediate to the contrary. Byer, 136. Gold said, that if a fine sur conusans de droit come ceo, &c., were lev- ied, a use did result to the conusor ; but if the conusee did grant and render the lands to the conusor in tail, the conusee was seised of the reversion to his own use. Moor, 156 ; Byer, 311. So if a feoffment be made to A. and his heirs, upon condition to enfeoff B. and his heirs, without limiting or declaring any use. In this case, when A. has enfeoffed B. and his heirs, a use shall arise to B. and his heirs ; and in all cases of common recoveries a tenant to the precipe shall be presumed, and that as well in a new recovery as in an old one.' 1 " It was also ruled that the Statute of Frauds and Perjuries, which says, ' that all conveyances, where trusts and confidences shall arise or result by implication ot law, shall be as if that act had never been,' must relate to trusts and equUable interests, and cannot relate to a use, which is a legal estate.'' Lamplugh v. Lamplugh, 3 P. Wms. 112. 2 See Humphreston's Case, 2 Leon. 216, pi. 275. — Ed. SECT, rv.] LLOYD V. SPILLET. 255 LLOYD AND JOBSON v. SPILLET and Otheks. J^ Chancery, before Lord Haedwicke, C, March 12, 1740. [Meportedin 2 Atkyns, 148.1] John Stamp being seised of a considerable real estate and possessed of a large personal estate, made his will, dated the 28th of March, 1721, and afterwards a codicil of the 10th of October, 1721, and ap- pointed John House and John Spillet his trustees, to see what he had done in his lifetime be continued as he ordered, and then gave his cousins, Anne and Mary Jobson, £15 a year apiece, during their lives, and directed his trustees to improve all his estate to the best advan- tage, and that the 3'early profits thereof should be given to and for the yearly maintenance of such ministers as were called by the name of Presbj'terian and Independent ministers, that do not receive above £40 a year for their preaching. The testator afterwards added Kichard Froome to the other two trustees, and on the 7th of December, 1721, there was an indenture of release duly executed between John Stamp of the one part, and House, Froome, and Spillet of the other part, witnessing that Stamp, as well for and in consideration of the natural love and affection which he bore unto his cousins. House, Froome, and his friend Spillet, and also in consideration of ten shillings paid by them, granted to them several messuages and farms therein mentioned, to hold to them, their heirs and assigns, to the use of them, their heirs and assigns, for ever; provided always, &c., that if Stamp should, at any time during his life, tender or pay to House, &c., ten shillings, on purpose to make void the said deed and the estates thereby conveyed, then the deeds and the estates thereby limited should be void. John Stamp did also execute a deed-poll of his personal estate to House, Froome, and Spillet, whereby John Stamp, in consideration of ten shillings, and other good causes, bargained and sold to House, &c., all his goods and chattels, to hold to them, their executors, &c., and put them in possession of all the premises by the delivery of five shillings to them ; and it was agreed between the parties that Stamp should have the rents and profits of the premises during his life, for the main- tenance of himself and family, and a power was reserved to Stamp to make void this deed by any deed or writing, and to dispose of the premises as he should think fit ; and he had power, also, to revoke the lease and release. The bill is brought by the plaintiflTs as heirs-at-law to John Stamp, and Uie end of it is, that the defendants may convey John Stamp's real estate I s. 0. 3 P. Wms. 344; Barnard. 384.— Ed. 256 LLOYD V. SPILLBT. [CHAP. IV. to the plaintiffs and their heirs, and account for the rents and their share of the personal estate, and deliver up the deeds of bargain and sale, and lease and release, and the title-deeds. The defendants insist on their right to the real and personal estate, by virtue of the will and conveyances of John Stamp, and in regard it is by L will declared that if his heirs should commence any suit relat- ing to his will, that then it should be void : they submit to the court that if the plaintiffs had any title to their annuities of £15 each, they have forfeited the same by bringing this suit. First. With regard to the personal estate ; I am of opinion there are no grounds for the present plaintiffs to be relieved, according to the prayer of their bill. For here is an assignment or bill of sale of all his goods and chat- tels and all other his substance whatsoever, movable or immovable, quick or dead, to his trustees during his life, for the maintenance of himself and family, with another proviso to revoke the uses of this deed by any other deed or writing, or even by cancelling, without any form or ceremony whatsoever. A man makes a will antecedent to a deed, in which he has given away all his personal estate to charitable uses. Now, whether a man, after a will made, reserves a trust in what was his personal property before, or acquired after, the will is ambulatory, till his death, and therefore, as to the next of kin, there is no pretence that the personal estate is devisable under the Statute of Distributions. Secondly. As to the legal estate, whether it will pass by the lease and release without a consideration. Now there are no grounds whatsoever to say that the legal estate did not pass by the lease and release. For the considerations in it are such as will operate by way of trans- mutation of possession. In the first place, here is a consideration expressed of natural affec- tion to two persons, who are not disputed to be very nearly related to the grantor, and here is likewise the consideration 'of ten shillings ; but there is no manner of doubt the estate would have passed even without the last pecuniary consideration, under the Statute of Uses, for natural love and affection is very sufficient to create a use, and will amount to a covenant to stand seised, though no other consideration appear. But then it has been insisted here is not a sufficient consideration to pass the beneficial interest in this estate. The consideration of ten shillings, it is said, is only a form in the convej'ance, and not sufficient of itself to pass the estate ; neither will the consideration of natural love and affection alone pass it. But I do not think these observations material in the present case. SECT. IV.] LLOYD V, SPILLET. 267 Consider how it stood at common law before the Statute of Uses ; there was no necessity then that there should be any consideration ex- pressed to pass the estate. As, for instance, in the case of feoffments, there was no consideration at all mentioned in them ; and yet the estate passed by them from the operation of law. In process of time, for the sake of avoiding forfeitures to the crown, when the contests arose between the two Houses of York and Lancas- ter, and likewise to avoid wardships, both of them with a fraudulent intention to cheat the crown and the lord of what the law gave them, uses were introduced, and were exactly the same with what trusts are now, and I wonder how they ever came to be distinguished. The doctrine of a resulting use first introduced the notion that there must be a consideration expressed in the deed of feoffment, or other- wise nothing could pass, but it would result to the feoffor. And so it is insisted on here, that, though the legal estate passes hy the Statute of Uses, yet the beneficial interest will not pass, as there is not what the court calls a valuable consideration ; and, consequently, there is a resulting trust for the heir. I am now bound down by the Statute of Frauds and Perjuries, to construe nothing a resulting trust but what are there called trusts by operation of law ; and what are those ? Why, first, when an estate is purchased in the name of one person, but the money or considera- tion is given by another ; or, secondly, where a trust is declared only as to part, and nothing said as to the rest, what remains undisposed of results to the heir-at-law, and they cannot be said to be trustees for the residue. I do not know in any other instance besides these two where this court have declared resulting trusts by operation of law, unless in cases of fraud, and where transactions have been carried on mala fide. But in the present case there is no fraud at all in the grantees, but a scheme in the plaintiff's ancestor to secure the charity at all events, supposing he should revoke his wUl. It has been said that it was not the intention to give this estate to the defendant, and consequently the heir-at-law is entitled : for the heir-at-law does not want an express intention ; and it is certainly so in the case of a wUl, but it is otherwise with regard to a deed. For there, since the Statute of Frauds and Perjuries, the lines are exactly drawn with regard to resulting trusts, and the heir-at-law must show an express trust for him in order to entitle himself. A man that conveys a trust to another, and barely for himself, or for the use of his heir-at-law, does not generally insert a power of revocation, as has been done in the present case. Upon the whole, I am of opinion that the legal estate did well pass, VOL. I. 17 258 AEMSTKONG V. WOLSEY. [CHAP. IV. and the beneficial interest likewise ; nor do I believe there was any in- tention that there should be a resulting trust for the heir-at-law, but the whole design of the plaintiffs ancestor was to secure the charity at all events. LoKD Habdwicke, therefore, said he saw no cause to vary the de- cree of the 8th of November, 1734, and ordered the same should be affirmed; but declared that the plaintiffs, the heirs-at-law of John Stamp, were entitled to the two annuities of £15 each, devised to them by the testator for their lives, and directed the arrears and growing payments to be paid to the plaintiffs.* ARMSTRONG, op the Devise of NEVE, v. WOLSEY. In the Common Pleas, Hilabt Term, 1755. [Seported in 2 Wilson, 19.] Ejectment, tried at Norwich before Pabker, Chief Baron, who re- served this short case for the opinion of the court. A. B. being in pos- session of the lands in question, levied a fine sur conusans de droit come ceo, &c., with proclamations to the conusee and his heirs, in the sixth year of the present king, without any consideration expressed, and without declaring any use thereof; nor was it proved that the conusee was ever in possession. So that the single question is, whether the fine shall inure to the use of the conusor or the conusee. And after two arguments, the court was unanimous, and gave judgment for the plaintiff, who claimed as heir of the conusor. Curia. In the case of a fine come ceo, &c., where no uses are de- clared, whether the conusor be in possession, or the fine be of a rever- sion, it shall inure to the old uses, and the conusor shall be in of the old use ; and although it passes nothing, yet after five years and non- claim it will operate as a bar. And in the case of a recovery suffered, the same shall inure to the use of him who suffers it (who is commonlj- the vouchee) , if no uses be declared : but he gains a new estate to him and his heirs general ; and although before the recovery he was seized ex parte materna, yet afterwards the estate wiU descend to his heirs ex parte patema,^ as was determined in Martin v. Strachan.' 1 Eeg. Lib. B. 1740, fol. 155 ; Eeg. Lib. B. 1734, fol. 74. 2 Conf. Godbold v. Freestone, 3 Lev. 406 ; Abbot v. Burton, 2 Salk. 590 (see also 2 P. "Wms. 139) ; Read v. Erington, Cro. El. 321 ; Martin v. Strachan, > 1 Wils. 2, 66 ; sed vid. that case 2 Stra. 1179. SECT. rV.J LEMAN V. "WHITLET. 259 In the case at bar, the ancient use was in the conusor at le time of levjing the fine ; and it seems to have been long settled before this case, that a fine without any consideration, or uses thereof declared, shall inure to the ancient use in whomsoever it was at the time of levying the fine ; and as it was here in the conusor at that time, the judgment must be for the plaintiff.^ LEMAN V. WHITLEY. In Chancery, befoee Sib John Leach, M. R., April 24j Mat 5, 1828. [Reported in i Russell, 423.] The plaintiflF, by deeds of lease and release, dated the 21st and 22d of December, 1819, conveyed the estate in question to his father; in consideration, as it was expressed in the deed of release, of a sum of £400 paid by the father to the plaintiff. The bill alleged that the plain- tiff, while in distressed circumstances, and not in good credit, being desirous to raise money upon mortgage of this estate, was advised by the attorney, who was employed as well by the father as by the plaintiff, that he could much more readily procure the money on mortgage if it appeared that the estate on which the security was to be given was the father's property, and that the money was raised for the use of the father, who was in good credit, than if the transaction was understood to be a dealing with the plaintiff; that the attorney recommended, therefore, that the plaintiff should convey the estate to the father, so that it should appear to be his property ; and that the deeds of lease and release to the father were prepared and executed in pursuance of that advice, with the consent of the father, but that no part of the alleged consideration had been paid. 5 T. E. 107, u. In the case last cited, Lee, 0. J., said : " The rule of descent is well known, and will be agreed. If a man seised as heir on the side of the mother make a feoffment in fee to the use of himself and his heirs, the use being a thing in trust and confidence shall ensue the nature of the lands, and shall descend to the heir on the part of the mother. Co. Lit. 13 a, 3 Lev. 406, Godbolt v. Freestone. And it will be the same if the limitation be by fine and recovery ; it is still the ancient use ; and there is no difference whether upon the conveyance of an estate any part of the use result by implication of law, or whether it be reserved by express declaration to the party from whom the estate moved ; and so is the case of Abbot v. Burton, Salk. 590. But this rule holds only where lands come hy descent, and not where a person takes by purchase." See also Price v. Langford, 1 Salk. 337. — Ed. 1 Bro. Ab. Feoff, al Uses, pi. 37 (senible) ; Villers v. Beaumont, Dy. 146 (senHile) ; Beckwith's Case, 2 Eep. 58 a ; Bury v. Taylor, Godb. 180, pi. 253 ; ArgoU v. Cheney, Palm. 405 ; Noy, 77 ; Latch, 82, s. c. ; Roe v. Popham, Doug. 26, accord. — Ed. 260 LEMAN V. WHITLEY. [CHAP. IV. The father died in the month of May, 1820, having, by his will, made subsequently to the execution of the deeds of lease and release, devised all his real estates, in general words, to an infant son of the plaintiff, with remainders over. It appeared that steps had been taken by the attorney towards rais- ing money on mortgage in the name of the father, but that no mort- gage was completed in his lifetime. The attorney, having possession of the title-deeds, was made a defendant in the cause, and by his answer admitted the facts as stated in the biU. He had likewise been examined as a witness for the plaintiff ; and his evidence was to the same effect. The bill prayed that the devisees of the father might be declared to be trustees for the plaintiff ; that they might account to him for the rents and profits since the father's death ; and that the estate might be leconveyed to him. The evidence was read de bene esse ; and the question was, whether on such facts so disclosed by parol testimony, the court could declare a trust in favor of the plaintiff. Mr. Treslove and Mr. Orompton, for the plaintiff. There are many cir cumstances that will suflflce to take a case out of the provision of the Statute of Frauds, which requires aU declarations of trust as to lands to be in writing. " There is," says Lord Hardwicke, in Willis v. Willis,^ " another way of taking a case out of the statute, and that, by admit ting parol evidence, within the rules laid down in this court, to show the trust, from the mean circumstances in the pretended owner of the real estate of inheritance, which makes it impossible for him to be the purchaser." Cripps v. Jee ; ^ Maxwell v. Montacute ; ° Lady Tyrrell's Case ; ^ Lady Bellasis v. Compton ; ' "Woodhouse v. Brayfleld ; ° Lloyd V. Spillet ; ' Cottington v. Fletcher ; ' Young v. Peachey ; ' Birch v. Blagrave ; " Lench v. Lench." Unquestionably evidence might be received that the purchase-money, which is stated in the deeds as the consideration of the conveyance, was never paid. Why was it not paid ? Because it never was the intention of the parties that any con- sideration should pass from the father to the son, and the transaction was merely colorable. The true facts of the case are thus brought properly before the court ; and, according to those facts, and not accord- ing to the tenor of the formal conveyance, must the rights of the parties be declared. Mr. Beames, contra. None of the cases which have been cited resemble the present. In some of them there was fraud ; in some of 1 2 Atk. 71. 2 4 Bro. C. C. 472. » Free, in Chan. 526. * Freem. 304. « 2 Vem. 294. « 2 Vem. 307. 7 2 Atk. 148, and Barnard. 884. 8 2 Atk. 155. » 2 Atk. 254. w Amb. 264. ii 10 Ves. 511. SECT. IV.] LEMAN V. "WHITLEY. 261 them there was mistake ; in some of them there was evidence in writing that the written conveyance did not disclose the true nature of the transaction and the true intent of the parties : but in no case has parol evidence been received in order to raise a trust contrary to the effect of a written instrument, where, as here, neither fraud nor mistake is alleged, and where all that appears in writing is in opposition to the claim set up by the biU. The Master of the Eolls. The question in this cause would regularly have arisen upon an objection to the admissibility of parol evidence of the alleged trust. There can be no doubt of the moral honesty of the claim made by this bill. But the question is, whether the plaintiff can be relieved consistently with the provisions of the Statute of Frauds, which, although it may bear hard upon the plaintiff in the particular case, was certainly called for by the public interest. There is here, no pretence of fraud, nor is there any misapprehension of the parties with respect to the effect of the instruments. It was intended that the father should by legal instruments appear to be the legal owner of the estate. There is here no trust arising or resulting by the implication or construction of law. The case of Cripps v. Jee is the nearest to this case in its circumstances. There, the estate being subject to certain incumbrances, the grantor mortgaged the equity of redemption by deeds of lease and release to two persons of the name of Rogers, as purchasers, for a consideration stated in the deed ; the real intention of the parties being that the Rogerses should be mere trustees for the grantor, and should proceed to sell the estate, and, after paying the incumbrances, should pay the surplus money to the grantor. In the book of accounts of one of the Rogerses there appeared an entry in his handwriting of a j'ear's interest paid to an incumbrancer on the estate, on account of the grantor, and other entries of the repayment of that interest to Rogers by the grantor ; and there was also evidence of a note and bond given by the Rogerses to a creditor of the grantor, in which thej'^ stated themselves to be trustees of the estate of the grantor. Lord Kenyon held that, this written evidence being inconsistent with the fact that the Rogerses were the actual purchasers of the equity of redemption, further evidence was admissible to prove the truth of the transaction. Unfortunately, there is here no evidence in writing, which is inconsistent with the fact that the father was the actual purchaser of this estate ; and it does appear to me, that to give effect to the trust here would be in truth to repeal the Statute of Frauds. Considering myself bound, therefore, to treat this case as a purchase by the father from the plaintiff, there does, however, arise an equity for the plaintiff, which, consistently with the facts stated and proved, and under the prayer for general relief, he is entitled to claim. It is stated and proved that no part of the alleged price or consideration of 262 LEMAN V. WHITLEY. [CHAP. IV. $400 was ever paid by the father to the plaintiff; and the plaintiff therefore, as vendor, has a lien on the estate for this sum of $400 ; and the decree must be accordingly.^ 1 In Leake's "Digest of the Law of Property in Land," 134, the learned author says : " Where a conveyance is made without any declaration of trust, and without any payment "of purchase-money whence to infer a trust or disposal of the beneficial interest, it is presumed to be made for the benefit of the legal grantee. The rule is different with uses, as has been seen, for absence of consideration and of declared in- tention raises a resulting use in the grantor. Thus, a grant to A. and his hell's, with- out any declaration of use and without any consideration to raise a use, imports a resulting use in the grantor, which is executed by the statute, and the estate remains in him as before ; but a grant to A. and his heirs to the use of B. and his heirs con- veys the legal and equitable interest to B., although there be no consideration given or express appropriation of the beneficial interest, and there is no resulting trust." Mr. Lewin, on the other hand, in his "Treatise on the Law of Trusts '' (7th ed.), 131, makes the following statement : " If an estate be granted either without consid- eration or for merely a nominal one, and no trust is declared of any part, then if the conveyance be simply to a stranger and no intention appear of conferring the beneficial interest, as the law will not suppose a person to part with property without some in- ducement thereto, a trust of the whole estate (as in the analogous case of uses before the statute of Henry VIII. ) will result to the settlor. And if two joint tenants make such a conveyance without consideration, the equitable interest will result to them in joint tenancy." The cases cited by Mr. Lewin hardly warrant his statement. For with three ex- ceptions they are cases of trusts in personal property, of resulting trusts by the pay- ment of purchase-money, or of constractive trusts on the ground of fraud. Furthermore, of the three exceptions, two — namely, Lady Tyrrell's Case (1674), Freem. C. C. 304, andWarman ti. Seaman (1675), Freem. C. C. 308 — were prior to the Statute of Frauds ; and in them as well as in the third — Rex v. Williams, Bunb. 342 — the decision did not necessarily involve the question of a resulting trust. Where personal property is transferred without consideration, whether the trans- action is a gift or a transfer upon trust for the transferror depends naturally upon the intention of the transferror, and parol evidence of the intent is of course admis- sible. But, in the absence of evidence, the presumption of a gift would seem to be a natural one. In George v. Howard, 7 Price, 651, Richards, C. B., said : " The case of Rider v. Kidder [10 Ves. 360] does not apply. That was argued on this ground, that the intestate having purchased the stock with his own money, and transferred it into his own name and that of another person, the presumption is that the other per- son, if a stranger, is merely a trustee for him whose money it was : and so it might have been presumed here, perhaps, if such were the facts ; but in this case stock already purchased and invested was transferred into the name of the owner and the defendant; and if I deliver over money, or transfer stock to another, even although he should be a stranger, it would be priina fade a, gift." But in Freeman v. Tatham, 5 Hare, 337, Sir James Wigram, V. C, said, referring to the case of Eider v. Kidder : " I do not understand the distinction attempted to be drawn between a ti-ansfer and a purchase." In Pascoe u. Pascoe, Sir George Jessel, M. R., said, p. 345, n. 1, that he "did not understand that the law of this court made any difference between a transfer and a purchase, — a purchase of stock in the joint names of the beneficial owner and another, or a transfer from that beneficial owner in the joint names of himself or herself, or a transfer to a third name from the beneficial owner into another name. In either case, SEOT. IV.] LBMAN V. "WHITLEY. 263 in the absence of evidence to the contrai-y, there was a resulting trust in favor of the henefioial owner." See also Tucker v. Barrow, 2 H. & M. 526, per Wood, V, C. In the same case, on appeal, Sir W. M. James, L. J., said, p. 348 : " I will assume that the implication of a resulting trust does arise as much in the case of a transfer as in that of a purchase of stock, although that is certainly not the case with regard to a conveyance of laud." lu the following cases it was held, upon the evidence, that there was a gift : Crabb V. Crabb, 1 M. & K. 511 ; Kilpin o. Kilpin, 1 M. & K. 520 ; Dummer v. Pitcher, 2 M. & K. 262; Deacon v. Colquhoun, 2 Drew. 21 ; Batstone v. Salter, L. E. 19 Eq. 250 ; L. E. 10 Ch. Ap. 438, s. c. ; Fowkes v. Pascoe, L. E. 10 Ch. Ap. 343. In the following cases it was held, upon the evidence, that the transfer was upon a trust for the transferror : Duke of Norfolk v. Browne, Free. Ch. 80 ; Hayes v. King- dome, 1 Vem. 33 ; Scnlthorp v. Burgess, 1 Ves. Jr. 91 ; Custauce v. Cunningham, 13 Beav. 363 ; Forrest v. Forrest, 34 L. J. Ch. 428. — Ed. 264 BLODGBTT V. HILDEBTH. [CHAP. IV. JOHN BLODGETT and Othees v. EPHRAIM HILDRETH. In the Supreme Jddiciai, Cotjkt, Massachusetts, Januaey Term, 1870. [Seported in 103 Massachusetts Reports, 484.] Bill in equity by the heirs of Sarah M. Blodgett, to redeem one undivided half of a parcel of land in Townsend from a mortgage held by the defendant. At the hearing, before Morton, J., there appeared the following facts, on which the case was reserved for the consideration of the fuU court. John W. Swallow, owning the land in question, mortgaged it to Jepthah Cummings, and died in 1840, intestate, leaving his four sis- ters, Alice M. Swallow, Sophronia Swallow, Sarah M. Blodgett, and Lucinda S. Hildreth, his heirs. No administration was taken on his estate. In 1843, Alice, Sarah, and Lucinda made " a deed of quit- claim " of the premises to Sophronia, the husbands of Sarah and Lu- cinda joining therein ; afterwards Alice died, unmarried and childless ; then Sarah died intestate, leaving the plaintiffs her heirs ; and then Sophronia died, intestate, unmarried, and childless. Subsequently the mortgage to Cummirigs was assigned to Lucinda, and she afterwards conveyed the premises by quitclaim deeds through a third person to her husband, the defendant, and in 1857 died. The defendant contended that the deed made to Sophronia by her sisters was made in trust for the sole use and benefit of Lucinda ; and he was allowed to introduce In evidence, against the objection of the plaintiffs, a letter written in 1853 by Sophronia to Lucinda, containing this passage : " I intend to settle up our affairs, and give up your deeds that you intrusted me with." The defendant was also allowed, against the plaintiff's objection, to introduce oral exndence showing that the heirs of John W. Swallow made an oral agreement that Lucinda should take the premises, she agreeing to pay all her brother's debts and to pay S25 to each of her sisters ; that, in pursuance of this agreement, the deed of 1843 was made to Sophronia, at the request of Lucinda, and to he held in trust for her ; that at the time the deed was made Sophronia paid some of her brother's debts out of money in her hands belonging to Lucinda, and Lucinda's husband, the defendant, gave Sophronia a receipt in full of a debt due to him from her brother's estate ; that, after the deed was made and delivered to Sophronia, Lucinda, from time to time, paid the other debts of her brother, and also paid $25 to each of her sisters ; that, after the making of the deed to Sophronia, Lucinda and the de- fendant paid the taxes on the premises up to the time of Sophronia's SECT. rV.] BLODGETT V. HILDEETH. 265 death, since which time the plaintiflfs voluntarily paid one-half of the taxes ; and that Lucinda, at the time of making the deed to Sophronia, held promissory notes against her brother, which were found among her papers at her death, and were now in the possession of the defendant. D. S. Richardson, for the plaintiffs. F. A. Worcester, for the defendant. Wells, J. 1. The writing produced in this case is not sufficient to satisfy the requirements of the Statute of Frauds. It fails to identify the property or interests to which it relates, or to afford means by which its identity may be made certain. It does not disclose the terms of the trust, or the conditions upon which the sister was entitled to have the deeds surrendered to her. The trust must be established, if at all, by implication of law. 2. As to Sophronia's original share of the land, the case stands merely upon an oral agreement to hold it for the benefit of Lucinda, and payment of the value or consideration therefor. This will not create a valid trust. Gen. Sts. c. 100, § 19. Payment of the whole purchase-money will not take an oral agreement concerning land out of the Statute of Frauds. Purcell v. Miner ; ^ Thompson v. Gould ; ' Glass V. Hulbert.^ Lands already held by a party cannot be charged with an implied or resulting trust by reason of the receipt of money upon an oral agreement of sale or trust. Rogers v. Murray ; ^ Forsyth V. Clark.6 3. As to the share of Lucinda, conveyed by her to Sophronia with- out consideration and upon an agreement to reconvey or hold it for the benefit of Lucinda, no valid trust arises from that transaction. Walker V. Locke.° A voluntary deed is valid between the parties as a gift, and does not raise any trust in favor of the grantor. It is otherwise with a feoffment, and perhaps in other conveyances whenever there is no declaration of the uses and the consideration is open to inquiry in determining the effect of the deed between the parties and their privies. Cruise Dig. (Greenl. ed.) tit. 11, c. 4, § 16, and tit. 32, c. 2, § 38. In this Commonwealth the consideration is not open to such inquiry. Supposing the deed in question to have been in the common form,, the recital of a consideration, and the declaration of the use to the grantee and her heirs in the habendum, are both conclusive between the par- ties, and exclude any resulting trust to the grantor.' Squire v. 1 4 Wall. 513. 2 20 Pick. 134. » 102 Ma-ss. 24. * 3 Paige, 390. « 3 "Wend. 63r, 651. « 5 Cuah. 90. T Dean v. Dean, 6 Conn. 285 ; Irwin v. Ivers, 7 Ind. 308 ; Ratliff v. Ellis, 2 Iowa, 69 ; Morrall D. Waterson, 7 Kan. 199 ; Philbrook v. Delano, 29 Me. 410 ; Gerry v. Stimson, 60 Me. 186 ; Walker ». Locke, 5 Cush. 90 ; Bartlett v. Bartlett, 14 Graj-j 277 ; Titoomb v. MorriU, 10 All. 15 ; Gould v. Lynde, 114 Mass. 366 ; Jackson v. Cleveland, 15 Mich. 94 ; Palmer v. Sterling, 41 Mich. 218 ; Graves v. Graves, 29 N. H. 129 ; Fanington v. Barr, 36 N. H. 86 ; Moore v. Moore, 38 N. H. 382 ; Hogan v. 266 BLODGETT V. HILDEETH. [CHAP. IV. Harder;! Hill on Trustees, 112; 2 Story Eq. § 1197; PhUbrook v. Delano;^ Farrington- 1>. Barr;' Graves v. Graves.* A trust may be established in favor of one who furnished the con- sideration, where a deed has been taken to a third party, because in tliat case the supposed cestui que trust, not being party to the deed, is not estopped by its recitals or covenants from proving all the facts from which such a trust will result. Livermore v. Aldrich.' 4. The two shares conveyed to Sophronia by the other two sisters come within the conditions from which a trust is held to result, by im- plication of law, in favor of the party who is the real purchaser and furnishes the consideration. It need not be money advanced or paid at the time of the conveyance. The mode, time, and form in which the consideration was rendered are immaterial, provided they were in pursuance of the contract of purchase. It is suflScient if that which in fact formed the consideration of the deed moved from the party for whom the trust is claimed to exist, or was furnished in her behalf, or upon her credit. The trust results from the purchase and payment of the consideration by or for one party, and the conveyance of the land to another. The receipt of a deed of convej'ance founded on such a transaction raises a presumption that it was taken for the benefit of the party supplying the consideration. 2 Story Eq. § 1201. The iinplica- tion of a trust from these facts may be overcome and disproved, or corroborated, bj^ anj- oral or written testimony showing the circum- stances of the transaction, and the expressed or probable intentions of the parties. Their admissions at the time or afterwards are competent to be proved. So also are their agreements ; but agreements not in writing have no force otherwise than as admissions tending to destroy or confirm the inference otherwise deducible from the facts of payment of the consideration and deed to a third party. The trust results only from that inference. Adams Eq. 33 ; HiU on Trustees, 96, 97 ; Bots- ford V. Burr.° Upon the report in this case, it appears that the whole consideration of the deed to Sophronia moved from Lucinda. It consisted partly in payments made at the time, out of money belonging to Lucinda, partly in payments then undertaken to be made, and subsequently made by her, and partly in the release or surrender of claims against the estate of their deceased brother. All these payments, releases, and under- takings were for the use and benefit of the grantors, eitiier directly or Jaques, 4 C. E. Green, 123 ; Jackson v, Garnsey, 16 Johns. 189 ; Eathbun v. Eath- bun, 6 Barb. 105 ; Sturtevant v. Sturtevant, 20 N. Y. 39 ; MiUer v. Stokely, 5 Ohio St. 194 ; Wright v. Gould, 2 Wis. 552 ; EasdaU v. Easdall, 9 Wis. 379, accord. But see Euss v. Mebius, 16 Gal. 350. — Ed. 1 1 Paige, 494. = 29 Me. 410. « 36 N. H. 86. ♦ 9 Foster, 129. » 5 Oush. 431. » 2 Johns. Ch. 405. SECT. IV.J BLODGETT V. HILDKETH. 267 indirectly. It is enough, however, that, whatever of consideration there was, it moved from Lucinda. Proof of pajments made subse- quently has no other effect than to show that there was no failure of the consideration agreed upon when the deed was made, and on which it rested. The other facts, including the letter of Sophronia, relied on as a declaration of trust, tend to corroborate and strengthen the implication of law which arises from payment of the consideration. The fact that Lucinda joined in the same deed of quitclaim, in order to convey her own share to Sophronia, does not create any estoppel against her, beyond the interest which she conveyed. The deed is not set forth in the pleadings, nor in the report ; and we are not to presume that Lucinda entered into any covenants, in relation to the shares con- veyed by her sisters, which estop her from proving the facts from which an implied trust may result in her own favor. Her covenants, if any, in the deed, would be construed as extending only to the estate conveyed by her, unless the terms in which they are expressed require a different construction. Blanchard v. Brooks ; ^ Allen v. Holton ; ' Sweet V. Brown.* The result is, that one half of the estate was held by Sophronia in trust for Lucinda ; and the plaintiff, if permitted to redeem, would at once be compelled to release it, in fulfilment of that trust. As to the other half, as no trust is legally established, it passed, upon the death of Sophronia, in equal shares to Lucinda and the representatives of Mrs. Blodgett, neither Sophronia nor her sister Alice M. having left issue. The plaintiffs are therefore entitled to redeem one fourth part of the premises. If the parties shall not agree upon the amount to be paid upon such redemption, a master must be appointed to ascertain the amount. Decree accordingly. 1 12 Pick. 47. " 20 Pick. 458. » 12 Met 175. 268 FOED LOED GEEY V. LADY GEBT. [OHAP. IV SECTION V. Where the PurohaBe-money is paid hy one Person and the Convey- ance is taken in the Name of another. ANONYMOUS. 1542. [Brooke's Abridgment, Feffements al Uses, placii'um, 51.] A MAN purchased land, and caused the estate to be made to him and his wife, and to three others in fee ; this shall be taken to the use of the husband only, and not to the use of the wife without special matter to induce this, and so vide, a wife may be seised to the use of her hus- band, and there was such a feoffment, anno 3 Hen. VII., and de- clared ut supra, quod nota. FORD LORD GREY v. LADY GREY and Others, El e contra. In Chancert, before Lord Finch, C, March 26, 1677. [Reported in 1 Chancery Cases, 296.'] "William Lord Grey had issue, Thomas, his eldest son, and Ralph, his second son : William, the father, for £13,000, purchased the manor of Gosfield in the name of Thomas and his heirs, and he enjoyed it, and took the rents and bought other lands adjoining in his own name, and added them to the park, and enclosed them therewith, and owned all as his own sometimes ; and Thomas declared several times that the manor was his father's, not his, or to that eflfect. But on the other side divers speeches of his father's were proved, that it was his son's, and the son by his will gave the manor to his father for life ; and divers speeches also by the son and father that the manor was Thomas his manor, and the father proved the said wiU, being executor. The question was, whether the purchase was a trust in Thomas for the father, or an advancement by the father to the son. And decreed an advancement, not a trust. And whereas the father did, after the death of Thomas, convey Gosfield and three other manors in trust to raise £2,000 for two other of his grandchildren, Ralph and Charles, Gosfield was not liable thereto.'' 1 2 Swan. 594 ; Finch, 338 ; Freem. C. C. 6, 8. 0. —Ed. 2 Lady Gorge's Case, Cro. Car. 550 (cited) ; Scroope v. Scroope, 1 Ch. Ca. 27 ; SECT, v.] ■ ELLIOT V. ELLIOT. 269 ELLIOT V. ELLIOT. In Chancery, bepoke Lord Finch, C, July 3, 1677. [Reported in 2 Cases tn Chwncery, 231.] The grandfather, mortgagee, purchaseth to himself the equity of redemption ; and having two sons, the eldest took ill courses, and had killed a man : the gi-andfather and the mortgagor joined in a convej'- ance to Thomas his youngest son, but no consideration expressed, nor trust expressed ; but the grandfather continued in possession, and leased, received the rents, and by his last will devised the lands to Thomas, but expressed not for what estate, and died. The question was, whether the conveyance to Thomas should be taken to be in trust for the grandfather, according to the usual rule, or no. And the question arose between the son of Thomas and the heir- at-law. Against the heir-at-law, and to make it no trust : 1st. Where the father purchaseth in the name of his son, it hath been frequently decreed to be an advancement and not a trust, though the father take the profits and keep possession ; and though the father after such purchase declare the trust, yet it is not good unless the trust be declared before or at the time of the purchase. And so now the Lord Chancellor agreed. 2dly. It was objected that the reason why this court had so as before decreed, was in pursuance of the reason of the common law : a feoff- ment is made by the father to the son generally, no use riseth back to the father, unless it be expressed. 3dly. The will expressing no estate, contradicts not the rule ; but one witness doth expressly depose that the grandfather's direction was to devise, &c., to Thomas and his heirs ; and another witness deposed ad idem, to the best of his remembrance, and as he believed, which was not pressed as if such parol declaration could enlarge the will, but as an evidence of the trust and intent ; and there was reason to do so, because of the disorder of the elder son. But the Lord Chancellor decreed it a trust for the grandfather, and took the difference between a son formerly married and provided for, and between a son unprovided for. In the latter case, if the father purchased land in the name of a son, and pay for it, or convey land Freem. 0. C. 171, s. o. ; Anon., Freem. C. C. 128 ; Murama v. Mumma, 2 Vem. 19 ; Shales v. Shales, Freem. C. C. 252 ; Lamplugh v. Lamplugh, 1 P. Wms. Ill ; Taylor v. Taylor, 1 Atk. 386 ; Eedington v. Eedington, 3 Eidg. P. C. 106, accord. Conf. Jennings v- Selleck, 1 Tern. 467. — Ed. 270 DYER V. DYBE. . [CHAP. IV. to his son, it shall be taken not to be a trust ut svpra, but to be an advancement or provision for the son, because the father is under an obligation of duty and conscience to provide for his child in such case ; but after he hath provided for him, he is under no farther obligation to i)rovide more than for a stranger, and else no father could trust his child ; and this difference I take, and shall always observe, and the proof is defective to alter the case? ANONYMOUS. In Chancert, Eastee Term, 1683. [Reported in 2 Fentris, 361.] Where a man buys land in another's name, and pays money, it win be a trust for him that pays the money, though no deed declaring the trust, for the statute of 29 Car. II., called the Statute of Frauds, doth not extend to trusts raised by operation of law.'' DYER V. DYER. In the Exchequer, November 20, 21, 27, 1788. [Reported in 2 Cox, 92.=] In 1737, certain copyhold premises holden of the manor of Heytes- bury, in the county of WUts, were granted by the lord, according to the custom of that manor, to Simon Dyer (the plaintiffs father), and Mary his wife, and the defendant William (his other son), to take in succession for their lives, and to the longest liver of them. The pur- chase-money was paid by Simon Dyer, the father. He survived his wife, and lived until 1785, and then died, having made his will, and 1 Pole V. Pole, 1 Ves. 76, accord. In Blnion v. Stone (1663), NeU. 68, Freem. C. C. 169, s. c, the presumption of an advancement was held to he rebutted by the infancy of the son. But this case is oveiTuled. Anon., Freem. C. C. 128 ; Mumma v. Mumma, 2 Vem. 19. — Ed. 2 Hungate v. Hungate, Tothill, 120 ; Bury v. Taylor, Godb. 180, pi. 253 ; Pelly v. Maddin, 21 Vin. Abr. 498 ; Willis v. Willis, 2 Atk. 71 ; and the following cases re- lating to copyholds : Clarke v. Danvers, 1 Ch. Ca. 310 ; Howe v. Howe, 1 Vem. 415 ; Anon., Freem. C. C. 123 ; Benger v. Drew, 1 P. Wms. 781 ; Smith v. Baker, 1 Atk. 385 ; Withera v. Withers, Amb. 151, accord. The presumption of a resulting trust was held to be rebutted by the evidence in the following cases : Gascoigne v. Thwing, 1 Vem. 366 ; Bundle v. Bundle, 2 Vem. 252, 364 ; Bellaais v. Compton, 2 Vem. 294 ; Maddisou v. Andrew, 1 Ves. 58 ; Goodright v. Hodges, Watkyns Copyholds (4th ed. ), 227 ; Garrick v. Taylor, 29 Beav. 79 ; 4 D., F. & J. 159 ; Beeeheri). Major, 2 Dr. & Sm. 431.— Ed. » Watkyns Copyholds (4th ed.), 216, s. c — Ed. SECT. V.J DYEE v. DYER. 271 therebj' devised all his interest in these copyhold premises (amongst others) to the plaintiff, his younger son. The present bill stated these circumstances, and insisted that the whole purchase-money being paid by the father, although, by the form of the grant, the wife and the defendant had the legal interest in the premises for their lives in suc- cession, yet, in a court of equity, they were but trustees for the father, and the bill, therefore, prayed that the plaintiff, as devisee of the father, might be quieted in the possession of the premises during the life of the defendant. The defendant insisted that the insertion of his name in the grant operated as an advancement to him from his father to the extent of the legal interest thereby given to him. And this was the whole ques- tion in the cause. This case was Aerj fully argued by 3fr. Solicitor- General and Ainge, for the plaintiff, and by Burton and Morris, for the defendant. The following cases were cited and very particularly commented on : Smith V. Baker ; ^ Taylor «. Taylor ; ^ Mumma v. Mumma ; ' Howe v. Howe ; * Anon. ; ' Benger v. Drew ; ^ Dickenson v. Shaw, before the Lords Com- missioners in 1770 ; Bedwell v. Froome, before Sir T. Sewell, on the 10th Majr, 1778 ; Eow v. Bowden, before Sir L. Kenyon, sitting for the Lord Chancellor ; Crispe v. Pratt ; ' Scroope v. Scroope ; ' Elliot V. Elliot ; ' Ebrand v. Dancer ; ■"" Kingdome v. Bridges ; " Back v. An- drews ; •'^ Rundle v. Bundle ; ■'^ Lamplugh v. Lamplugh ; " Stileman v. Ashdown ; " Pole v. Pole.*^ Lord Chief Baeon, after directing the cause to stand over for a few days, delivered the judgment of the court." The question between the parties in this cause is, whether the de- fendant is to be considered as a trustee for his father in respect of his succession to the legal interest of the copyhold premises in question, and whether the plaintiff, as representative of the father, is now enti tied to the benefit of that trust. I intimated my opinion of the ques- tion on the hearing of the cause, and I then, indeed, entertained very little doubt upon the rule of a court of equity, as applied to this sub- ject ; but as so many cases have been cited, some of which are not in print, we thought it convenient to take an opportunity of looking more fully into them, in order that the ground of our decision may be put in as clear a light as possible, especially in a case in which so great a dif- 1 1 Atk. 385. 2 1 Atk. 386. 3 2 Vem. 19. « 1 Vem. 415. » 2 Freem. 123. 6 1 p. Vms. 781. ' Cro. Car. 548. 8 1 ch. Caa. 27. « 2 Ch. Gas. 231. 10 2 Ch. Cas. 26. " 2 Vem. 67. " 2 Vera. 120. 18 2 Vem. 264. '« 1 P. Wms. 111. " 2 Atk. 430. 16 1 Ves. 76. 1' Eyre, C. B., Hotham and Thompson, BB. — Ed. 272 DYER V. DYBE. [CHAP. rv. ference of opinion seems to have prevailed at the bar. And I have met with a case in addition to those cited, which is that of Rumbold v. Eumbold, on the 20th April, 1761. The clear result of all the cases, without a single exception, is, that the trust of a legal estate, whether freehold, copyhold, or leasehold ; whether taken in the names of the purchasers and others jointlj', or in the name of others without that of the purchaser ; whether in one name or several ; whether jointly or suc- cessive, — results to the man who advances the purchase-money. This is a general proposition supported by all the cases, and there is nothing to contradict it ; and it goes on a strict analogy to the rule of the com- mon law, that where a feofl5aient is made without consideration, the use results to the feoffor. It is the established doctrine of a court of equity, that this resulting trust may be rebutted by circumstances in evidence. The cases go one step further, and prove that the circum- stance of one or more of the nominees being a child or children of the purchaser is to operate by rebutting the resulting trust ; and it has been determined in so many cases that the nominee being a child shall have such operation as a circumstance of evidence, that we should be disturbing landmarks if we suffered either of these propositions to be called in question ; namely, that such circumstance shall rebut the re- sulting trust, and that it shall do so as a circumstance of evidence. I tkink it would have been a more simple doctrine, if the children had been considered as purchasers for a valuable consideration. Natural love and affection raised a use at common law ; surely, then, it wiU rebut a trust resulting to the father. This way of considering it would have shut out all the circumstances of evidence which have found their way into many of the cases, and would have prevented some very nice dis- tinctions, and not very easy to be understood. Considering it as a circumstance of evidence, there must be, of course, evidence admitted on the other side. Thus, it was resolved into a question of intent, which was getting into a very wide sea, without very certain guides. In the most simple case of all, which is that of a father purchasing in the name of his son, it is said this shows that the father intended an advancement, and therefore the resulting trust is rebutted ; but then a circumstance is added to this, namely, that the son happened to be provided for ; then the question is, did the father intend to advance a son already provided for? Lord Nottingham could not get over this, and he ruled that, in such a case, the resulting trust was not rebutted ; and in Pole v. Pole, in Vesey, Lord Hardwicke thought so too ; and yet the rule in a court of equity, as recognized in other cases, is, that the father is the only judge as to the question of a son's provision ; that distinction, therefore, of the son being provided for or not, is not very solidly taken or uniformly adhered to. It is then said that a pur- chase in the name of a son is a. prima facie advancement (and, indeed, SECT, v.] DYER V. DYER. 273 it seems difficult to put a iu any way) ; in some of the cases some cir- cumstances have appeared which go pretty much against that presump- tion, as where the father has entered and kept possession, and taken the rents, or where he has surrendered or devised the estate ; or where the son has given receipts in the name of the father. The answer given is, that the father took the rents as guardian of his son. Now, would the court sustain a bill by the son against the father for these rents ? I should think it pretty difficult to succeed in such a bUl. As to the sur- render and devise, it is answered that these are subsequent acts ; whereas the intention of the father in taking the purchase in the son's name must be proved by concomitant acts ; yet these are pretty strong acts of ownership, and assert the right and coincide with the posses- sion and enjoyment. As to the son's giving receipts in the name of the father, it is said that the son being under age, he could not give re- ceipts in any other manner ; but I own this reasoning does not satisfy me.^ In the more comphcated eases, where the life of the son is one of the lives to take in succession, other distinctions are taken. If the custom of the manor be that the first taker might surrender the whole lease, that shall make the other lessees trustees for him ; but this cus- tom operates on the legal estate, not on the equitable interest, and therefore this is not a very solid argument. When the lessees are to take successive, it is said that, as the father cannot take the whole in his own name, but must insert other names in the lease, then the chil- dren shall be trustees for the father ; and to be sure, if the circumstance of a child being the nominee is not decisive the other way, there is a great deal of weight in this, observation. There may be many pruden- tial reasons for putting in the life of a child in preference to that of any other person ; and if in that case it is to be collected from circum- stances whether an advancement was meant, it will be difficult to find such as will support that idea. To be sure, taking the estate in the name of the child, which the father might have taken in his own, af- fords a strong argument of such an indent ; but where the estate must necessarily be taken to him in succession, the inference is very differ- ent. These are the difficulties which occur from considering the pur- chase in the son's name as a circumstance of evidence only. Now, if it were once laid down that the son was to be taken as a purchaser for a valuable consideration, aU these matters of presumption would be avoided. It must be admitted that the case of Dickinson v. Shaw is a case very strong to support the plaintiflTs claim. That came on in chancery on the 22d May, 1770. "A copyhold was granted to three lives to 1 The presumption of an advancement was held to be rehutted by the father's pos- session and receipt of the profits of the land, in Woodman v, Morrel, Freem. C. C. 32. See Stileman v. Ashdown, 2 Atk. 477, 480. —Ed. VOL. I, 18 274 DTEK V. DYER. [CHAP. TV. take in succession, — the father, son, and daughter ; the father paid the fine. There was no custom stated. The question was, whether the daughter and her husband were trustees during the life of the son, who survived the father. At the time of the purchase the son was nine and the daughter seven j-ears old. It appeared that the father had leased the premises from three years to three years, to the extent of nine years. On this ease. Lords Commissioners Smythe and Aston were of opinion that, as the father had paid the purchase-money, the children were trustees for him." To the note I have of this case it is added that this determination was contrary to the general opinion of the bar, and also to a case of Taj'lor v. Alston in this court. In Dick- inson V. Shaw there was some little evidence to assist the idea of its being a ti'ust ; namely, that of the leases made by the father. If that made an ingredient in the determination, then that case is not quite in point to the present ; but I rather think that the meaning of the court was that the burthen of proof lay on the child, and that the cases which went the other way were only those in which the estate was en- tirel}' purchased in the name of the children. If so, they eertainlj' were not quite correct in that idea, for there had been cases in which the estates had been taken in the names of the father and son. I have been favored with a note of Rumbold v. Rumbold, before Lord Keeper Henley, on the 20th April, 1761, where a copyhold was taken for three lives in succession, — the father and two sons. The father paid the fine, and the custom was, that the first taker might dispose of the whole es- tate (and bis Lordship then stated that case fully). Now this ease does not amount to more than an opinion of Lord Keeper Henley ; but he agreed with me in considering a child as a purchaser for good consideration of an estate bought by the father in his name, though a trust would result as against a stranger. It has been supposed that the case of Taylor v. Alston in this court denied the authority of Dick- inson V. Shaw. That cause was heard before Lord Chief Baron Smythe, myself, and Mr. Baron BurlaniJ, and was the case of an uncle pur- chasing in the names of himself and nephew and a niece ; it was decided in favor of the nephew and niece, not on any general idea of their taking as relations, but on the result of much parol evidence, which was admitted on both sides, and the equity on the side of the nominees was thought to preponderate. Lord Kenyon was in that cause, and his argument went solely on the weight of the parol evidence ; indeed, as far as the circumstance of the custom of the first taker's right to surrender, it was a strong case in favor of a trust ; however, the court determined the other way on the parol evidence : that case, therefore, is not material. Another case has been mentioned which is not in print, and which was thought to be materially applicable to this. Bed- well V. Froome, before Sir T. Sewell ; but that was materially distin- SECT, v.] DYER V. DTER. 275 guishable from the present : as far as the general doctrine went, it went against the opinion of the Lords Commissioners. His Honor there held that the copj-holds were part of the .testator's personal estate, for that was not a purchase in the name of the daughter ; she was not to have the legal estate ; it was only a contract to add the daughter's life in a new lease to be granted to the father himself. There could be no question about her being a trustee, for it was as a freehold in him for his daughter's life ; but in the course of the argument his Honor stated the common principles as applied to the present case, and ended by saying that, as between father and child, the natural presumption was that a provision was meant. The anonymous case in 2 Freem. corresponds very much with the doctrine laid down by Sir T. Sewell ; and it observes, that an advancement to a child is considered as done for valuable consid- eration, not only against the father, but against creditors. Kingdome V. Bridges is a strong case to this point : that is, the valuable nature of the consideration arising on a provision made for a wife or for a child : for there the question arose as against creditors. I do not find that there are in print more than three cases which re- spect copyholds, where the grant is to take successive. Bundle v. Run- die,-' which was a case perfectly clear ; Benger v. Drew,^ where the purchase was made partly with the wife's monej' ; and Smith v. Baker,' where the general doctrine as applied to strangers was recognized ; but the case turned on the question whether the interest was weU devised. Therefore, as far as respects this particular case, Dickinson v. Shaw is the only case quite in point ; and then the question is whether that case is to be abided by ? With great reverence to the memory of those two judges who decided it, we think that case cannot be followed ; that it has not stood the test of time or the opinion of learned men ; and Lord Kenj'on has certainly intimated his opinion against it. On ex- amination of its principles, they seem to rest on too narrow a founda- tion ; namely, that the inference of a provision being intended did not arise, because the purchase could not have been taken wholly in the name of the purchaser. This, we think, is not sufficient to turn the presumption against the child. If it is meant to be trust, the purchaser must show that intention by a declaration of trust ; and we do not think it right to doubt whether an estate in succession is to be consid- ered as an advancement, when a moiety of an estate in possession cer- tainly would be so. If we were to enter into all the reasons that might possibly influence the mind of the purchaser, many might, perhaps, occur in every case upon which it might be argued that an advancement was not intended. And I own it is not a very prudent conduct for a man just married to tie up his property for one child, and preclude himself from providing for the rest of his family ; but this applies 1 2 Vem. 361. '' 1 P. Wms. 781. » 1 Atk. 385. 276 WHAT V. STEEIiB. [CHAP. IV. equally in case of a purchase in the name of the child only ; yet that case is admitted to be an advancement ; indeed, if anything, the latter case is rather the strongest, for there it must be confined to one child only. We think, therefore, that these reasons partake of too great a degree of refinement, and should not prevail against a rule of property which is so well established as to become a landmark, and which, whether right or wrong, should be carried throughout. This bill must, therefore, be dismissed ; but after stating that the only case in point on the subject is against our present opinion, it cer- tainly will be proper to dismiss it without coSts.^ WEAY V. STEELE. In Chancery, before Sir Thomas Pldmer, V. C, March 8, 1814. [Seported m 2 Vesey