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Trusts - 1849- 1899

Trusts law. This also covers law relating to trustees and trusteeship. See also Equity.

These cases are extracted from a very large database. The entries on that database are now being published individually to the main swarb.co.uk website in a much improved form. As cases are published here, the entry here will be replaced by a link to the same case in that improved form on swarb.co.uk. In addition the swarb.co.uk site includes very substantial numbers of cases after 2000. Please take the time to look.  

This page lists 93 cases, and was prepared on 06 June 2013. These case are being transferred one by one to the main swarb.co.uk site which presents them better, with links to full text where we have it, and much improved cross referencing.
Robinson -v- Robinson (1851) 1 De GM & G 247; [1851] EngR 994; (1851) 1 De G M & G 247; (1851) 42 ER 547
1851
CA
Cranworth LJ
Trusts
1 Citers
The trustee defendants had been directed by their testator to realise his investments and invest the proceeds in one or other of two forms of investment; but the trustees had delayed the realisation of the testator's investments. When they actually sold they realised more than they would have realised if they had sold immediately after the testator's death, but less than if they had sold immediately after the testator's death and had thereupon invested the proceeds in one, rather than the other, of the two authorised forms of investment. The plaintiff sought to charge the trustees for what they would have received if they had followed that course of realisation and investment which in the event would have been the most favourable to the beneficiaries. Held. The claim was rejected. Cranworth LJ said: "Where a man is bound by covenants to do one of two things, and does neither, there in an action by the covenantee, the measure of damage is in general the loss arising by reason of the covenantor having failed to do that which is least, not that which is most, beneficial to the covenantee: and the same principle may be applied by analogy to the case of a trustee failing to invest in either of two modes equally lawful by the terms of the trust."
Link[s] omitted
Beloved Wilkes' Charity, Re [1851] EWHC Ch J52; (1851) 3 Mac & G 440
28 Apr 1851
ChD
Trusts Casemap
1 Citers
Trustees are under no general duty to explain the exercise by them of a discretion.
Link[s] omitted
In The Matter Of Atkinson's Trust Estate, [1851] EngR 715 (B); (1851) 4 De G & Sm 548
12 Jul 1851

Trusts
Link[s] omitted
Egerton -v- Lord Brownlow; 20-Aug-1851
Thackwell -v- Gardiner [1851] EngR 956; (1851) 5 De G & Sm 58; (1851) 64 ER 1017
2 Dec 1851

Trusts
A bond was vested in a trustee, in trust, as to income for a married woman for her life, with remainder, as to the corpus in trust for her issue, and in default of issue, in trust for such persons as the married woman alone, notwithstanding coverture, should by deed or instrument in writing, to be by her sealed and delivered in the presence of and attested by two credible witnesses, appoint. The husband being indebted to his bankers on the balance of an account current, the married woman deposited the bond with the bankers, with a letter signed by her, to the effect that, in consideration of the bankers paying, or having already paid, the cheques of the husband, or otherwise advancing him sums of money, she thereby guaranteed the repayment thereof ; and that she deposited as a collateral security the bond which she undertook to assign to the bankers, on request. Held, that the consideration was sufficient, and that the separate life interest of the wife was effectually charged ; but that, the letter not having been executed and attested as required by the power, the Court would not, under the circumstances, give effect to it as an appointment.
[ Commonlii ]
In The Matter Of Boden's Estate, And Of The Trustee Act, 1850 [1851] EngR 1010 (B); (1851) 9 Hare 820
22 Dec 1851

Trusts
Link[s] omitted
Lewis -v- Hillman; 1852
In Re Field's Trust [1852] EngR 715 (A); (1852) 16 Beav 146
11 Jun 1852

Trusts
Link[s] omitted
Egerton -v- Earl of Brownlow; HL 1853
Rochdale Canal Company -v- King (1853) 16 Beav 630
1853

Sir John Romilly MR
Land, Trusts Casemap

1 Citers
Sir John Romilly MR said: "The principle on which the Defendants rely is one often recognised by this Court, namely, that if one man stand by and encourage another, though but passively, to lay out money, under an erroneous opinion of title, or under the obvious expectation that no obstacle will afterwards be interposed in the way of his enjoyment, the Court will not permit any subsequent interference with it, by him who formally promoted and encouraged those acts of which he now either complains or seeks to take advantage. This is the rule laid down in Dann v Spurrier (7 Ves 231), Powell v Thomas (6 Hare 300), and many other cases, to which it is unnecessary to refer, because the principle is clear."
Stone -v- Godfrey; 10-Dec-1853
Ramsden -v- Smith (1854) 61 ER 734; [1854] EngR 460; (1854) 2 Drew 298
2 May 1854

Trusts
Link[s] omitted
In The Matter Of The Trusts Of Pedder's Settlement [1854] EngR 1022; 11 Vict C 96; (1854) 43 ER 1116
15 Dec 1854

Trusts
Link[s] omitted
In Re Hodgson's Trust [1854] EngR 1025; (1854) 1 K & J 178; (1854) 69 ER 419
17 Dec 1854

Trusts
[ Commonlii ]
Mills -v- Drewitt (1855) 20 Beav 632
1855

Trusts, Equity Casemap
1 Citers
A beneficiary cannot be divested of his beneficial interest in the capital of the trust by the operation of the doctrine of laches. 'A trustee who is in possession of property which he admits to be trust property cannot plead the laches of the cestui que trust in a suit to enforce the trust in respect of that property.'
Willeter -v- Dobie; 23-Jun-1856
Earle -v- Bellingham (1857) 24 Beav 448
1857

Trusts, Wills and probate Casemap

The right to receive legacies charged on a reversionary legacy payable under the will of another was not a present right to receive them until the reversionary legacy fell into possession on the death of the life tenant.
Stanley -v- Jackman; 10-Feb-1857
Affleck -v- Affleck [1857] EngR 369; (1856-1857) 3 Sm & G 394; (1857) 65 ER 709
26 Mar 1857

Trusts, Health
Covenant by G. on his marriage; that if he came into possession, he would exercise the power of jointuring, which, by the terms of the will, could only be exercised by a tenant for life in possession. G., before coming into possession, became of unsound mind. Held, that the covenant was a defective execution of the power, which this Court would enforce against the remainder-man. A previous covenant by a person of sound mind must prevail against any subsequent mental incapacity.
Link[s] omitted
In Re Kingsley's Trust [1858] EngR 1022 (B); (1858) 26 Beav 84
26 Jul 1858

Trusts
Link[s] omitted
Clavering -v- Ellison (1859) 7 HLC 707
1859

Lord Cranworth
Trusts Casemap
1 Citers
Any provision determining or divesting an estate held on trust "must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine"
In Re Marsden's Trust [1859] EngR 676; (1859) 4 Drew 594; (1859) 62 ER 228
4 Jun 1859

Trusts Casemap

Where the donee exercises a power of appointment in favour of one of several objects of the power, with a view to the benefit of a stranger, the appointment is fraudulent and void, even although the appointee is ignorant of the fraud, and the motive of the donee is not morally wrong. Therefore, where a married woman having a power to appoint a fund, of which she received the income for her life, among her chiidren, appointed the whole fund at her death to her eldest daughter, in order that thereout the daughter should benefit her father, but the daughter was not informed of the bother’s intention until after her mother’s death. Held, that such appointment was void.
[ Commonlii ]
Ingle - -Richards (No 1) (1860) 28 Beav 281
1860

Trusts Casemap

Heywood -v- Heywood [1860] EngR 1155; (1860) 29 Beav 9; (1860) 54 ER 527
19 Nov 1860
RC
Family, Trusts
1 Cites
[ Commonlii ]
Clayton -v- Clarke [1860] EngR 1296; (1860) 2 Giff 575; (1860) 66 ER 241
19 Dec 1860

Children, Trusts
Bill by a next friend of an infant to administer an estate, in respect of which, it appeared from the answer, the Defendants had already rendered an account in another suite. The Defendants submitting that the suit was not instituted for the benefit of the infant-the Court directed an inquiry whether any benefit had accrued from the suit to the infant; and the Chief Clerk having certified in the negative, the Court refused to allow the next friend his costs.
[ Commonlii ]
In The Matter Of Anne Jane Jones, A Lunatic, And In The Matter Of The Trustee Act, 1850 [1860] EngR 1301; (1860) 2 De G F & J 554; (1860) A)
21 Dec 1860

Trusts
[ Commonlii ]
Lady Mary Topham -v- The Duke Of Portland [1862] EngR 870; (1862) 31 Beav 525; (1862) 54 ER 1242
30 Jun 1862

Trusts

The donee of a trust power cannot execute it for an object foreign to purposes for which it was intended, and therefore an ordinary power in a marriage settlement of appointment amongst the children cannot be made subservient to the accomplishment of any particular fancies or inclinations which the donee of the power may have as to the profession in life which a child may choose to adopt, nor can it be exercised in such a mode as to prevent a child marrying a particular person.
An appointment was made to A. (an object of a power) with trusts in favor of B (another object), but intended to accomplish a purpose not warranted by the power. Held, that it could not be treated as an absolute appointment of B. discharged of the void purpose. An appointment, under a previous agreement, that the appointee will deal with the appointed fund in a manner foreign to the purposes for which the power was intended is void, and so is such an appointment where the agreement is subsequent, if accomplished by the inevitable influence possessed by the appointor over the appointee. A parent, having by his settlement an exclusive power of appointment of a fund to his children, was desirous of preventing a daughter marrying a particular gentleman. For that purpose, he appointed part of the fund to his son, who, about a month afterWards, settled it on discretionary trusts in favor of the daughter, the object being to prevent that marriage. Held, that this was one transaction, that the object aimed at was foreign to the purposes for which the power was intended, and that the appointment was altogether void in equity.
Link[s] omitted
Milroy -v- Lord (1862) 4 De GF & J 264; [1862] EWHC Ch J78; [1862] EngR 951; (1862) 4 De G F & J 264; (1862) 45 ER 1185
26 Jul 1862
CA
Knight-Bruce LJ and Turner LJ
Company, Equity, Trusts Casemap
1 Citers
The donor executed a transfer of 50 shares. The shares were only transferable by entry in the books of the bank. No such transfer was ever made. The defendant had a power of attorney authorising him to transfer the donor’s shares and after the deed the donor gave him a further power of attorney authorising him to receive dividends on the shares. The donor died and an action was bought to enforce the transfer. Held: The transaction was imperfect and incomplete and that the donor might have perfected it and completed it by a transfer. Turner LJ Sid: "in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, 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 it in trust for those purposes; 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 extent, 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 applying 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."
[ Bailii ] - [ Commonlii ]
Re Kenneth Mackenzie's Settlement [1863] EngR 323; (1863) 32 Beav 253; (1863) 55 ER 100
21 Feb 1863

Trusts
[ Commonlii ]
Prideaux -v- Lonsdale [1863] EngR 363; (1863) 4 Giff 159; (1863) 66 ER 661
16 Mar 1863

Family, Trusts
A settlement made by a woman of her personal property after her engagement to be married set aside at the suit of the husband, although he was told before the marriage that she had executed a settlement affecting her property. It appearing that neither she herself nor her husband was accurately informed of the nature and effect of the trusts of the settlement. Held, that the doctrine of constructive notice of the contents of an instrument was not sufficient to bind the husband on the ground of acquiescence. Suppression of the truth, or misrepresentation of a material fact, will vitiate any contract or gift the validity of which depends upon the truth and accuracy of the representation on which it was made.
Link[s] omitted
Re Maxwell's Trusts [1863] EngR 381; (1863) 1 H & M 610; (1863) 71 ER 267
23 Mar 1863

Company, Trusts
Link[s] omitted
Re Way’s Trusts (1864) 2 De G J & S 365
1864

Trusts, Equity
A gift was effected by a deed which was delivered. Held: The gift was effective.
Duke of Portland -v- Topham [1863] EngR 1051; (1863) 1 De G J & S 517; (1863) 46 ER 205
1864
CA
Turner LJ
Trusts Casemap


Commonlii The donee of a power of appointing portions among his younger children appointed a double share to a younger child without previous communication with him. But it appeared from the instructions for the appointment that its purpose as to half of the double share was that it should be held in trust, and the income accumulated during the life of the appointee and twenty-one years afterwards, or until the successor to the title of the appointor should direct the half of the double share and accumulations to be paid to another child who had been excluded by reason of an intended marriage disliked by the appointor. In the absence of such direction the half of the double share and accumulations were intended to be paid to the appointee. The appointee soon after the appointment executed a deed settling the moiety accordingly. Held: 1. That if the appointment and subsequent settlement could be held to be one transaction, the provisions for accumulation and for the control of the appointor’s succesor in titie over the appointed fund could not he rejected as mere excess so as to give the moiety to the excluded child. 2. That the purpose of the appointment as to the moiety, although uncommunicated vitiated it as to that portion, but as to that portion only.
Turner LJ said that he took it "to be clear, that no person, however innocent he may himself be, can, where there is no valuable consideration, derive a title under the fraud of another".
Link[s] omitted
The Duke Of Portland And Others -v- Lady Mary E Topham And Others (1864) 11 HL Cas 32; [1864] EngR 339; (1864) 11 HLC 32; (1864) 11 ER 1242; (1869) LR 5 Ch App 40
6 Apr 1864
HL
Trusts


A power to be validly executed must be executed without any indirect object. The donee of the power must give the property which is the subject of it, as property, to the person to whom he affects to give it.
A. created a power to appoint a fund between two of his daughters, H and M or to appoint it to one, in exclusion of the other, and subject to such restrictions, etc., as the donee of the power (A’s son) might think fit. The donee of the power executed a deed of appointment, which in form gave the whole of the fund to one of the sisters, N., but it was understood between the parties that N. was only to receive one moiety of the fund for her own use, and that she was to allow the other to accumulate subject to some future arrangement, and in pursuance of this understanding H. gave her brokers directions to invest, in the name of the donee of the power, of another brother, and of herself, one-half of the fund, and the interest thereon, to accumulate : Held, that this was, in equity, a fraudulent execution of the power, and that the deed of appointment as wholly void.
[ Commonlii ]
Rede -v- Oakes [1864] EngR 880; (1864) 4 De G J & S 505; (1864) 46 ER 1015
21 Dec 1864

Land, Trusts
[ Commonlii ]
Meyrick -v- Laws [1864] EngR 879 (A); (1864) 34 Beav 58
21 Dec 1864

Trusts
Link[s] omitted
Freeman -v- Bowen [1865] EngR 765; (1865) 35 Beav 17; (1865) 55 ER 800
7 Dec 1865

Trusts, Insolvency
[ Commonlii ]
Re Tichener [1865] EngR 775; (1865) 35 Beav 317; (1865) 55 ER 918
13 Dec 1865

Trusts
[ Commonlii ]
Tait -v- Lathbury [1865] EngR 784; (1865) 35 Beav 112; (1865) 55 ER 837
15 Dec 1865

Trusts
Link[s] omitted
Yeomans -v- Williams [1865] EngR 792; (1865) 35 Beav 130; (1865) B)
20 Dec 1865

Trusts
Link[s] omitted
Gee -v- Liddell [1866] EngR 67; (1866) 35 Beav 621; (1866) 55 ER 1038
23 Jan 1866

Trusts
[ Commonlii ]
Ex Parte The Trustees Of The Birmingham Blue-Coat School [1866] EngR 122; (1866) 35 Beav 345; (1866) A)
10 Mar 1866

Trusts
[ Commonlii ]
Re The Exhall Coal Company (Limited) Re Bleckley [1866] EngR 131; (1866) 35 Beav 449; (1866) 55 ER 970
12 Apr 1866

Trusts
Link[s] omitted
Arthur -v- Clarkson [1866] EngR 142; (1866) 35 Beav 458; (1866) A)
25 Apr 1866

Trusts
[ Commonlii ]
Cooper -v- MacDonald [1866] EngR 157 (A); (1866) 35 Beav 504
28 May 1866

Trusts
[ Commonlii ]
Gee -v- Liddell [1866] EngR 161; (1866) 35 Beav 658; (1866) 55 ER 1053
4 Jun 1866

Trusts
Link[s] omitted
Re Hotchkiss Trusts (1869) 8 Eq 643
1869

Sir William James V-C
Trusts, Litigation Practice
"In this case, if the words of the will had been the same as the words in In re Potter's Trust, I should, without expressing any opinion of my own, simply have followed the decision of Vice-Chancellor Sir R.Malins in that case; because I do not think it seemly that two branches of a Court of co-ordinate jurisdiction should be found coming to contrary decisions upon similar instruments, and encouraging as it were a race, by inducing persons who wish for one construction to go to one court and those who wish for another construction to go to another. I should simply have affirmed the Vice-Chancellor's decision, with the intimation of my wish that the whole matter should be brought before a Court of Appeal."
McCormick -v- Grogan (1869) LR 4 HL 82; [1869] UKHL 1; (1869-70) LR 4 HL 82
1869
HL
Lord Hatherley LC, Westbury L
Trusts, Equity

A secret trust was held to have created a constructive trust. Lord Hatherley LC said: "a person apparently taking property by devise or bequest from a testator with this knowledge of the existence of another instrument, which he actually or impliedly undertakes to carry into effect, will be fixed as trustee with the performance of such instructions and directions as are given in that other instrument. "
Lord Westbury said: "the jurisdiction which is invoked here by the Appellant is founded altogether on personal fraud. It is a jurisdiction by which a Court of Equity, proceeding on the ground of fraud, converts the party who has committed it into a trustee for the party who is injured by that fraud. Now, being a jurisdiction founded on personal fraud, it is incumbent on the Court to see that a fraud, a malus animus, is proved by the clearest and most indisputable evidence. It is impossible to supply presumption in the place of proof, nor are you warranted in deriving those conclusions in the absence of direct proof, for the purpose of affixing the criminal character of fraud, which you might by possibility derive in a case of simple contract."
[ Bailii ]
Mussumat Thukrain Sookraj Koowar -v- Government, Baboo Ajeet Sing, And Others [1871] EngR 27; (1871) 14 Moo Ind App 112; (1871) 20 ER 728
3 Jul 1871
PC
Trusts
In Oude, before its annexation to the British rule, a Rajah was a TaIookdar of a large Talook. A younger branch of his family had a separate Mehal in the possession of A., wholly distinct from and independent of the Talook the Rajah possessed as representing the elder branch of the family. The Oude Government, for fiscal purposes, included A's Mehal with the Rajah's Talook so that the Rajah as the elder branch of the family represented A.'s Mehal at the Court at Lucknow, notwithstanding that A. remained in undisturbed possession as absolute Owner, paying through the Rajah for his Mehal a proportion of the jumma fixed on the Talook. This relation between the Rajah and A. subsisted up to the time of the annexation of Oude by the British Government. While the Government was making a settlement with the Landowners, and A. was about to apply for a distinct settlement of his Mehal, he, and after him his Widow was, induced by the Rajah not to do so, the Rajah in Letters fully recognizing As absolute right to the Mehal. After the suppression of the rebellion in Oude, and the Government had recognized the Talookdary tenure with its rights, a provisional settlement of the Talook including A.'s Mehal, was made with the Rajah ; but before a Sunnud was granted to him, Government confiscated half his estate for concealment of Arms. The Rajah suppressed the fact of the trust relation of the Mehal of A., and contrived that it should be included in the half part of the estate the Government had confiscated ; which Mehal the Government as a reward granted to Oude loyalists. A.'s Widow brought a suit against the Government and the Grantees for the restoration of the Mehal and a settlement, The Financial Commissioner held that as the Rajah was the registered Owner of the Mehal of A., included in his Talook, it had been properly forfeited. Such finding reversed on appeal, on the ground that A. was the acknowledged cestui que trust of the Rajah, and that A.'s Widow, as equitable Owner was not affected as between her and the Government by the act of confiscation of half the Rajah's Talook.
Link[s] omitted
Faez Buksh Chowdry -v- Fukeeroodeen Mahomed Ahassun Chowdry [1871] EngR 39; (1871) 14 Moo Ind App 234; (1871) 20 ER 775
18 Jul 1871
PC
Trusts, Commonwealth
Suit by A to establish his right to execute Decrees, against B and another, by attachment and sale of lands in possession of C, B’s Son; on the ground, that the lands were held by C benamee, to defeat B’s Creditors. Evidence was given that C was the real Purchaser of the property sought to be attached, and not a benamee holder for B. Nothing but hearsay evidence was given by A that it was a benamee transaction. Held, by the Judicial Committee, following Sreemanhander Dey v Gopalchunder Chackerbutty that although there may be, with respect to benamee transactions, circumstances which might create suspicion and doubt as to the truth of the case, yet that the appellate Court will not decide upon mere suspicion, but upon legal grounds established by evidence, and that from the evidence in the suit, a born fide purchase by C was established.
Link[s] omitted
Juggut Mohini Dossee, And Others,-Appellants; Mussumat Sokheemoney Dossee, And Others,-Respondents [1871] EngR 49; (1871) 14 Moo Ind App 289; (1871) 20 ER 795
23 Nov 1871

Trusts, Land
Suit for possessiun of lands dedicated to the religious service of a family Idol, and for the appointment as Sabaet, or Manager of the religious endowment, under a Deed of dedication; against a party in cessession, claiming title as a bona fide Purchaser for value, without notice of the alleged trust, whose title, however, was derivable through the Deed of dedication; held wrongly dismissed by the Court below, the Purchaser proceeded against having had sufficient notice to throw upon him the onus of proving exemption from the religious trusts in the lands, which he had failed to do.
[ Commonlii ]
Baboo Lekraj Roy, Baboo Mahtab Chand And Others [1871] EngR 58; (1871) 14 Moo Ind App 393; (1871) 20 ER 833
14 Dec 1871
PC
Children, Trusts, Litigation Practice
Suit against the Guardians of a Minor, to recover moneys alleged to be due from the estate of the Minor’s Father. The Guardians compromised the suit and the Deed of Compromise were confirmed by the Court. After sixteen years, the Minor, being then of age, brought a suit against the Guardians to recover the mount paid under the Deed of compromise, alleging that the former suit was a, fictitious one, and the compromise fraudulent and collusive between the Plaintiff and his Guardians. On appcal, held, by the Judicial Committee, reversing the judgments of the Courts in India, (1) that, in the circumstances, the Guardians, in their discretion, were justified in making the compromise to protect the Infant’s estate, and (2) that the burthen of proving the allegation that the former suit was fictitious and collusive, was upon the Plaintiff, and in the absence of any such evidence by him that no debt was due from the Father’s estate, the onus probandii was not shifted on the Defandants to negative, such allegations.
[ Commonlii ]
Vyse -v- Foster; CA 1872
Imperial Mercantile Credit Association -v- Coleman (1873) LR 6 HL 189
1873
HL
Company, Trusts Casemap
1 Citers
Where a company director puts the benefit of a company contract into a partnership, he is fully accountable even if his partners are entitled to part of the profit and are ignorant of his breach of fiduciary duty.
The London Chartered Bank Of Australia -v- William George Lempriere And Others [1873] EngR 3; (1873) 9 Moo PC NS 426; (1873) 17 ER 574
6 Feb 1873

Family, Trusts
The property of a married woman, settled by an ante-nuptial Settlement for her separate use for life, with remainder as she should by Deed or Will appoint, with remainder in failure of appointment to her Executors or Administrators, is an absolute settlement for her sole and separate use, without restraint or anticipation, and vests in equity the entire corpus in her for all purposes.
[ Commonlii ]
Barnes -v- Addy [1874] Law Reports 9 ChA 244
1874

Trusts Casemap

A stranger to a trust can be liable in equity for assisting in a breach of trust, even though he received no trust property.
Richards -v- Delbridge (1874) LR 18 Eq 11
16 Apr 1874
CA
Sir George Jessel MR
Trusts, Equity

The donor purported to make a voluntary gift of leasehold premises and stock in trade by endorsing on the lease "This deed and all thereto belonging I give to E from this time forth, and all the stock in trade." This document was delivered to E’s mother on his behalf. Held: No valid declaration of trust was made in favour of E. For a man to make himself a trustee, he must express an intention to become a trustee.
Jessel MR said: "The principle is a very simple one. A man may transfer his property, without valuable consideration in two ways: he may either do such acts as amount in law to a conveyance or assignment of the property, and thus completely divest himself of the legal ownership, in which case the person who by those acts acquires the property takes it beneficially, or on trust as the case may be; or the legal owner of the property may, by one or other of the modes recognised as amounting to a valid declaration of trust, constitute himself a trustee, and, without an actual transfer of the legal title, may so deal with the property as to deprive himself of its beneficial ownership, and declare that he will hold it from that time forward on trust for the other person. It is true he need not use the words, "I declare myself trustee", but he must do something which is equivalent to it, and use expressions which have that meaning, for, however anxious the court may be to carry out a man's intentions, it is not at liberty to construe the words otherwise than according to their proper meaning."
[ lip ]
Attorney General -v- Webster (1875) LR 20 Eq 483
1875

Charity, Trusts Casemap
1 Citers
A trust expressed to be for the benefit of a fluctuating body of individuals, such as the inhabitants of a locality, can only take effect as a charitable trust, if it has effect at all.
Gisborne -v- Gisborne; HL 1877
Yeatman -v- Yeatman (1877) 7 Ch D 201
1877

Hall VC
Litigation Practice, Trusts Casemap
1 Citers
An action was brought by a residuary legatee against her mother-in-law's executors and another member of the family, who it was alleged, had failed to account for partnership monies to the mother-in-law. Held. A beneficiary of a trust could not sue in the name of the trustee merely because the trustee had refused to sue, but if in a case where the trustee refused to sue the court was satisfied that it would have given liberty to the trustee to bring proceedings even though there was no certainty that the proceedings would be successful, these would in general be special circumstances in which the beneficiary could sue in his own name.
Erlanger -v- New Sombrero Phosphate Company; HL 1878
The Ferguson Bequest Fund Case (1879) 6 R 486
1879

Lord Shand, Lord President Inglis
Scotland, Trusts
1 Citers
The court was asked to look at the sharing of an income stream where a testator intended to benefit a number of voluntary churches. Held: The court gave useful guidance as to options available when competing bodies were deemed still to be under the umbrella of the intention of the trust. Lord President Inglis: "... Where two parties, in the position of those now before us, each claim exclusive right to the property of the religious association to which they both originally belonged it is sometimes impossible to decide the question of property so raised without inquiring which party has adhered to and which has departed from the doctrines and rules of the association. And the same occurs where a particular congregation, having separated itself from the rest of the body, claims to retain the buildings or other property occupied by the congregation, but held on titles permanently connecting the property with the society or church, and justifies its separation on the ground that the majority of the body have renounced or departed from the articles of belief or general laws which formed the bond of union. In such cases it must be observed that the claim is based on allegations of breach of contract, that the subject in dispute is matter of civil and patrimonial right, and that the court cannot decide that question of right without reading and interpreting the contract which imposes on the members adherence to particular doctrines, laws, or usages as conditions of membership of the association ..."
In re Hallett's Estate; Knatchbull -v- Hallett; CA 1880
Oceanic Steam Navigation Co -v- Sutherberry (1880) 16 Ch D 236
1880

Trusts

Re Smith (1880) 42 Ch D 302
1880

Wills and Probate, Trusts

Once an estate has been administered, the personal representative becomes a trustee; and at that stage the court's inherent jurisdiction to control trusts arises allowing if necessary an order for his removal.
Ex parte Forder (1881) 25 Sol Journ 720
1881
CA
Lord Selbourne LC
Trusts
1 Citers
A sale of part of the property of the bankrupt was made by a trustee in bankruptcy to two buyers, one of whom was the trustee's under-age son. The contract was not binding on the son for his minority, and the sale was also at an undervalue. Held: The case was decided on that ground, but on a broader view: "Many authorities had laid down emphatically, not only with regard to trustees generally, but with regard to assignees in bankruptcy in particular, that they could not exercise the power of sale given to them for the benefit of the creditors directly or indirectly for the benefit of themselves or of anyone so connected with them as to stand in a position more advantageous than an ordinary purchaser." The sale being to the trustee's son, who was still a minor and so not bound by the contract, and: "How under such circumstances the bankrupt's estate will be bound by the contract it was impossible to conceive. At any rate, the circumstances threw on the trustee the burden of showing that it was a proper contract."
Smith -v- Lucas; CA 1881
In re Cross (1882) 20 Ch D 109
1882

Trusts, Equity Casemap
1 Citers
The court applied the doctrine of laches and delay to a claim against a trustee, not for the recovery of trust property, but for breach of trust.
Speight -v- Gaunt; CA 20-Jan-1883
Speight -v- Gaunt (1883) 9 App Cas 1; [1883] UKHL 1
26 Nov 1883
HL
Lord Blackburn
Trusts, Negligence Casemap
1 Cites
1 Citers
[ Bailii ]
Letterstedt -v- Broers (1884) 9 App Cas 371
1884
PC
Lord Blackburn
Trusts Casemap
1 Citers
(South Africa) The court set out the principles underlying a decision to remove a trustee. Lord Blackburn said: "The whole of the matters which have been complained of, and the whole that, if this judgment stands, may yet have to be done by the Board, are matters which they had to do, as having accepted the burthen of carrying out the trusts which on the true construction of the will were imposed upon them, and so become trustees. What they had to do as executors merely, such as paying debts, collecting assets, &c., have long ago been over, and by the terms of the compromise the plaintiff cannot now say they have not been done properly. There may be some peculiarity in the Dutch Colonial law, which made it proper to make the prayer in the way in which it was done to remove them from the office of executor; if so, it has not been brought to their Lordships' notice; the whole case has been argued here, and, as far as their Lordships can perceive, in the Court below, as depending on the principles which should guide an English Court of Equity when called upon to remove old trustees and substitute new ones. It is not disputed that there is a jurisdiction "in cases requiring such a remedy," as is said in Story's Equity Jurisprudence, s. 1287, but there is very little to be found to guide us in saying what are the cases requiring such a remedy; so little that their Lordships are compelled to have recourse to general principles.
Story says, s. 1289, 'But in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity'
It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate. The reason why there is so little to be found in the books on this subject is probably that suggested by Mr. Davey in his argument. As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported. It is to be lamented that the case was not considered in this light by the parties in the Court below, for, as far as their Lordships can see, the Board would have little or no profit from continuing to be trustees, and as such coming into continual conflict with the appellant and her legal advisers, and would probably have been glad to resign, and get out of an onerous and disagreeable position. But the case was not so treated.
In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries." He referred to cases in which there was a conflict between trustee and beneficiary and continued: "As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported."
However: "It is quite true that friction or hostility between trustees and the immediate possessor of the trust estate is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is certainly not to be disregarded."
Letterstedt -v- Broers [1884] UKPC 1; (1884) 9 App Cas 371
22 Mar 1884
PC
Lord Blackburn
Commonwealth, Trusts Casemap
1 Citers
Lack of harmony may be of itself a good reason for a trustee to resign or be dismissed. The test the Court should apply, is that (Lord Blackburn): "if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust-estate."
[ Bailii ]
Helmore -v- Smith (1886) 35 Ch D 436
1886

Company, Trusts Casemap

The relationship between partners is of a fiduciary nature. "If fiduciary relation means anything I cannot conceive a stronger case of fiduciary relation than that which exists between partners"
In re Whiteley (1886) 33 ChD 347
1886

Lindley LJ
Trusts Casemap
1 Citers
Lindley LJ considered the duties of a trustee in exercising his powers of investment and said: "The principle applicable to cases of this description was stated . . to be that a trustee ought to conduct the business of the trust in the same manner that an ordinary prudent man of business would conduct his own, and that beyond that there is no liability or obligation on the trustee. I accept this principle; but in applying it care must be taken not to lose sight of the fact that the business of the trustee, and the business which the ordinary prudent man is supposed to be conducting for himself, is the business of investing money for the benefit of persons who are to enjoy it at some future time, and not for the sole benefit of the person entitled to the present income. The duty of a trustee is not to take such care only as a prudent man would take if he had only himself to consider; the duty rather is to take such care as an ordinary prudent man would take if he were minded to make an investment for the benefit of other people for whom he felt morally bound to provide."
Learoyd -v- Whiteley [1887] UKHL 1; (1887) LR 12 App Cas 727
1 Aug 1887
HL
Lord Halsbury LC
Trusts
Link[s] omitted
In re Dugdale, Dugdale -v- Dugdale (1888) 38 ChD 176
1888

Kay J
Trusts Casemap

Kay J considered whether a condition in a trust was repugnant: "I apprehend that this is the test. An incident of the estate given which cannot be directly taken away or prevented by the donor cannot be taken away indirectly by a condition which would cause the estate to revert to the donor, or by a conditional limitation or executory devise which would cause it to shift to another person."
Farrer -v- Farrer’s Ltd (1888) 40 ChD 395
1888

Lindley LJ
Trusts Casemap
1 Citers
A sale by a mortgagee to a company of which he was a director and shareholder was held to be effective to extinguish the equity of redemption, but only because the sale was negotiated between the mortgagee and the other directors at arms' length. A sale by a mortgagee to a company of which he was sole director and only shareholder would be ineffective. A power of sale does not authorise the donee of the power to take the property at a price fixed by himself. If the sale is unauthorised, it cannot affect the beneficial interests.
Rae -v- Meek (1889) 14 App Cas 558
1889
HL
Lord Herschell
Scotland, Trusts, Litigation Practice Casemap
1 Citers
The beneficiaries under a trust created by a marriage contract sued a trustee for having lost trust money which had been lent on the security of unfinished houses in a building speculation. The trustee was held liable to restore the trust fund. The beneficiaries also sued the trustees' solicitor, who had advised the trustee that there was no objection to the investment. Lord Herschell dealt with the liability of the solicitor, by re-stating the rule that in the exceptional case of a failure by trustees to act, "the beneficiaries might compel them to do so, or even enforce the right themselves." He went on to say that no such question (that is, of a failure by trustees to act) was raised by the averments in relation to the claim in that case by the beneficiaries against the solicitor, who (in any event) was not liable because he had not been retained by the trustees to advise on the sufficiency of the security.
Nunneley -v- Nunneley [1890] 15 App Cas 186
1890

President
Trusts, Family Casemap
1 Citers
The court considerd the power to vary a trust: "The language of the Act is exceedingly wide. I am clearly of opinion that the power thereby conferred extends to a settlement though made in another country and according to the law of that country." The English court varied a settlement made in Scotland and in Scottish form of movables and immovables in Scotland.
Matrimonial Causes Act 1859
In re Akerman; ChD 1891
Forsyth -v- Forsyth [1891] P636
1891

Jeune J
Trusts

1 Citers
Jeune J: "Nunneley v. Nunneley seems to me to go the whole length of deciding that whatever be the law applicable to the settlements the effect of S.5 of the 22 and 23 Vict. c. 61, is to give this court power to vary the settlements in its discretion according to the principles laid down in that section."
Matrimonial Causes Act 1859 5 22
In re King's Trust (1892) 29 LR Ir 401
1892

Lord Porter MR
Family, Trusts

Lord Porter said it was "little short of disgraceful to our jurisprudence" that in reference to a rule professedly founded on public policy there should be a distinction between a gift of an annuity for life coupled with a proviso for cessation if the donee married (treated as giving a life interest) and a gift until he marries (treated as giving an interest only until marriage).
In re Richerson, Scales -v- Heyhoe [1892] 1 Ch 379
1892

Trusts Casemap
1 Citers
The court considered the doctrine of conversion.
Mogridge -v- Clapp [1892] 3 Ch 382
1892

Trusts Casemap
1 Citers
Soar -v- Ashwell [1893] 2 QB 390
1893
CA
Lord Esher MR
Limitation, Trusts, Legal Professions Casemap

Trustees under a will entrusted the trust fund to a solicitor for investment. The solicitor distributed part of the fund invested to the beneficiaries under the will but retained part in his own hands. Some 12 years later, the surviving trustee brought an action claiming an account of the money retained by the solicitor. Held: The solicitor must be considered as having been in the position of an express trustee of such money with the consequence that lapse of time did not bar the action.
Lord Esher MR said: "If there is created in expressed terms, whether written or verbal, a trust, and a person is in terms nominated to be the trustee of that trust, a Court of Equity, upon proof of such facts, will not allow him to vouch a Statute of Limitations against a breach of that trust. Such a trust is in equity called an express trust. If the only relation which it is proved the defendant or person charged bears to the matter is a contractual relation, he is not in the view of equity a trustee at all, but only a contractor; and equity leaves the contractual relation to be determined by the common or statute law. If the breach of the legal relation relied on, whether such breach be by way of tort or contract, makes, in the view of a Court of Equity, the defendant a trustee for the plaintiff, the Court of Equity treats the defendant as a trustee become so by construction, and the trust is called a constructive trust; and against the breach which by construction creates the trust the Court of Equity allows Statutes of Limitation to be vouched."
Lord Esher continued: "There was an express trust created, but Ashwell was not at any time nominated as a trustee of that trust. He was the solicitor of the nominated trustees. As such solicitor he was entrusted by the nominated trustees to take and have in his hands the trust money, with a direction on their behalf to deal with it according to the terms of the trust. Assume that he misappropriated that money to his own use, and that that was all; the misappropriation would at once of itself make him the holder of the money in trust for the rightful owner, but, if that were all, only a trustee by construction of a constructive trust. But the questions in this case are whether Ashwell was not, in view of a Court of Equity, a trustee of the money before the alleged breach by misappropriation, and, if he was, under which class of trust he was with regard to limitations. The moment the money was in his hands, he was in a fiduciary relation to the nominated trustees; he was a fiduciary agent of theirs; he held the money in trust to deal with it for them as directed by them; he was a trustee for them. He was therefore a trustee of the money before he committed, if he did commit, the alleged breach of trust, and was in possession of and had control over the money before he committed, if at all, the alleged breach of trust.
The cases seem to me to decide that, where a person has assumed, either with or without consent, to act as a trustee of money or other property, i.e., to act in a fiduciary relation with regard to it, and has in consequence been in possession of or has exercised command or control over such money or property, a Court of Equity will impose upon him all the liabilities of an express trustee, and will class him with and will call him an express trustee of an express trust. The principal liability of such a trustee is that he must discharge himself by accounting to his cestui que trusts for all such money or property without regard to lapse of time.
There is another recognised state of circumstances in which a person not nominated a trustee may be bound to liability as if he were a nominated trustee, namely, where he has knowingly assisted a nominated trustee in a fraudulent and dishonest disposition of the trust property. Such a person will be treated by a Court of Equity as if he were an express trustee of an express trust I am of opinion that the present case is within the description of that which is treated as and is called in equity an express trust, and that the inquiry as to the alleged breach cannot be stopped by the Statute of Limitations.
I am clearly convinced by the evidence that Ashwell became on receipt of the money a trustee of it, and that, as he has not been shewn to have accounted for it, the defendant, his executrix, is liable as such for a breach of trust by him. "
Re Beddoe, Downes -v- Cottam [1893] 1 Ch 547
1893

Litigation Practice, Trusts Casemap
1 Citers
In case of doubt as to the desirability of the intended proceedings (whether as plaintiff or defendant), trustees may apply to the court for directions. This will protect the trustees from adverse costs orders. If given leave to sue or defend by the court, they are entitled to an indemnity for their costs out of the trust fund. The Order provided: "Subject to the provisions of the Acts and these rules, the costs of and incident to all proceedings in the Supreme Court, including the administration of estimates and trusts, shall be in the discretion of the Court or judge…"
Order LXV Rule 1
In Re Beddoe Downes -v- Cottam [1893] 1 Ch 547
1893
CA
Lindley LJ, Bowen LJ, A L Smith LJ
Trusts

A trustee had unsuccessfully defended an action against the trust in detinue for the return of deeds. He now sought protection against a costs order. Held: Trustees considering court action, and being concerned at whether trust funds should be expended for the purpose and their own personal liability, may first apply to the court for approval of the proposed action.
Lindley LJ said: "But a trustee who, without the sanction of the Court, commences an action or defends an action unsuccessfully, does so at his own risk as regards costs, even if he acts on counsel's opinion." and "But, considering the ease and comparatively small expense with which trustees can obtain the opinion of a Judge of the Chancery Division on the question whether an action should be brought or defended at the expense of the trust estate, I am of opinion that if a trustee brings or defends an action unsuccessfully and without leave, it is for him to shew that the costs so incurred were properly incurred. The fact that the trustee acted on counsel's opinion is in all cases a circumstance which ought to weigh with the Court in favour of the trustee; but counsel's opinion is no indemnity to him even on a question of costs. This was decided in Stott v Milne (1884) 25 Ch D 710."
Bowen LJ said: "The principle of law to be applied appears unmistakeably clear. A trustee can only be indemnified out of the pockets of his cestuis que trust against costs, charges, and expenses properly incurred for the benefit of the trust - a proposition in which the word "properly" means reasonably as well as honestly incurred. While I agree that trustees ought not to be visited with personal loss on account of mere errors in judgment which fall short of negligence or unreasonableness, it is on the other hand essential to recollect that mere bona fides is not the test, and that it is no answer in the mouth of a trustee who has embarked in idle litigation to say that he honestly believed what his solicitor told him, if his solicitor has been wrong-headed and perverse. Costs, charges, and expenses which in fact have been unreasonably incurred, do not assume in the eye of the law the character of reasonableness simply because the solicitor is the person who was in fault. No more disastrous or delusive doctrine could be invented in a Court of Equity than the dangerous idea that a trustee himself might recover over from his own cestuis que trust costs which his own solicitor has unreasonably and perversely incurred merely because he had acted as his solicitor told him.
If there be one consideration again more than another which ought to be present to the mind of a trustee, especially the trustee of a small and easily dissipated fund, it is that all litigation should be avoided, unless there is such a chance of success as to render it desirable in the interests of the estate that the necessary risk should be incurred. If a trustee is doubtful as to the wisdom of prosecuting or defending a lawsuit, he is provided by the law with an inexpensive method of solving his doubts in the interest of the trust. He has only to take out an originating summons, state the point under discussion, and ask the Court whether the point is one which should be fought out or abandoned. To embark in a lawsuit at the risk of the fund without this salutory precaution might often be to speculate in law with money that belongs to other people."
In re Duke of Marlborough, Davis v Whitehead [1894] 2 Ch 133
1894

Stirling J
Trusts
1 Citers
The Duchess assigned her own separate leasehold property to the Duke absolutely in consideration of her natural love and affection for him. This enabled him to raise money on mortgage. The wife's evidence was that, subject to the mortgage being repaid, the house was to come back to her. Held. The equity of redemption belonged to the Duchess: "the house was transferred to the Duke for the limited purpose of enabling him to borrow money and that, subject to the mortgage created by him, it was intended that the house should continue to belong to the Duchess."
Re Owen [1894] 3 Ch 220
1894

Trusts, Limitation
1 Citers
Legacies were charged on land after the death of the life tenant. The life tenant died in 1880. It was not suggested that time ran from the death of the testator in 1854.
Attorney General -v-Worrall [1895] 1 QB 99
1895
CA
Lord Esher MR
Trusts Casemap

The donor gave his son the benefit of a debt of about £24,000 which was owing to him, in return for which the son covenanted to pay the father an annuity of £735 p.a. during his life. Held: "It has been held that in cases of this kind the court has to determine what the real nature of the transaction was, apart from legal phraseology and the forms of conveyancing." and "a benefit by contract or otherwise" may be reserved by the donor notwithstanding that it "does not arise by way of reservation out of that which is given"
In re Bennett, Jones -v- Bennett; CA 1896
Bray -v- Ford; HL 1896
Rochefoucald -v- Boustead; 1897

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