The defendants applied to strike out the plaintiff’s claim that two patents of which the second Defendant was the registered proprietor were held on constructive trust for him.
Mr Justice Pumfrey
[1998] EWHC Patents 290
Bailii
England and Wales
Updated: 19 June 2021; Ref: scu.163081
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own benefit, with a precatory expression of his wishes that it should be used for charitable purposes. Two further codicils 1886 extended the first codicil’s gift to the executors. Sir Joseph’s intestate successors would have been Mrs Uniacke (as to realty) and Mrs Uniacke and Mrs McGowan (as to personalty). Mrs McGowan threatened to challenge the will and codicils, but in 1889 there was a compromise between all interested parties. In 1916, after Mrs Uniacke, Mrs McGowan and the executors had all died, Mrs Uniacke’s administrator (Mr O’Rourke) sought to challenge both the will and codicils and the compromise, alleging fraud by Mr Darbishire (who was one of the executors and had been Sir Joseph’s solicitor). Mr O’Rourke sought disclosure of documents containing legal advice given to Sir Joseph during his lifetime, and to his executors after his death.
Held: The House dismissed Mr O’Rourke’s appeal. He had not made out even a prima facie case that the will and codicils were invalid, or that the communications had promoted fraud. Mr O’Rourke’s relied on a ‘proprietary right’. A cestui que trust, in an action against his trustees, is generally entitled to the production for inspection of all documents relating to the affairs of the trust. It is not material whether this is seen as a paramount proprietary right in the cestui que trust, or as a right to be enforced under the law of discovery, since in both cases an essential preliminary is either the admission, or the establishment, of the status on which the right is based.
Viscount Finlay, Lord Sumner, Lord Parmoor
[1920] AC 581, [1920] All ER 1
England and Wales
Cited by:
Cited – Vadim Schmidt v Rosewood Trust Limited PC 27-Mar-2003
PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – Martin and Others Gabriele v Giambrone P/A Giambrone and Law QBNI 5-Mar-2013
The claimants had made investments through their solicitors, the defendants. The investments failed. The defendants were said to have made a foul and threatening posting on facebook about the claimant after failure in earlier proceedings. The . .
Cited – Royal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Cited – Royal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.180360
Her Honour Judge Vincent
[2020] EWFC B25
Bailii
Trust of Land and Appointment of Trustees Act 1996 14
England and Wales
Updated: 16 June 2021; Ref: scu.652548
The claimant had paid money for a property, but the seller was a fraudster and no money or title was recovered. The claimant sued both his conveyancers and the solicitors who had acted for the fraudster, in each case innocently. The defendants each sought relief under section 61 of the 1925 Act.
Held: The claim succeeded. The reasonableness test which was to be applied to a legal professional who parted with completion moneys without obtaining completion, was of necessity a high hurdle. Section 61 was to be applied in a manner which was consistent with the high expectation of a trustee discharging fiduciary obligations under the rules of equity.
The second defendant conveyancers had failed to discharge the burden of proving that it acted reasonably applying the test established by the case law referred to above and thus was not entitled to rely on s.61 of the Trustee Act 1925. Similarly, the first defendant solicitors had failed to discharge the burden resting on them to establish that they acted reasonably in the circumstances and thus they were not entitled to the benefit of s.61 of the Trustee Act 1925. The two firms were to bear the loss equally.
Pelling QC HHJ
[2016] EWHC 789 (Ch), [2016] WLR(D) 193, [2016] 4 WLR 81, [2016] WTLR 1027, [2016] 2 P and CR DG14, [2016] PNLR 26, [2016] Lloyd’s Rep FC 310
Bailii, WLRD
Trustee Act 1925 61, Money Laundering Regulations 2007, Civil Liability (Contribution) Act 1978 1
England and Wales
Citing:
Cited – Lloyds TSB Bank Plc v Markandan and Uddin (A Firm) CA 9-Feb-2012
The defendant solicitors appealed against judgment. They and the lenders had been subject to a mortgage fraud. Fraudsters had set up a false branch office of a firm of solicitors, and secured payment of a mortgage advance. . .
Cited – Santander UK Plc v RA Legal Solicitors CA 24-Feb-2014
. .
Cited – Davisons Solicitors (A Firm) v Nationwide Building Society CA 12-Dec-2012
. .
Cited – Target Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .
Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Cited by:
Main Judgment – Purrunsing v A’Court and Co (A Firm) and Another ChD 1-Jul-2016
Post judgment hearing of the remaining costs issues . .
Cited – P and P Property Ltd v Owen White and Catlin Llp and Another ChD 30-Sep-2016
Solicitors’ liability for client’s fraud
The claimant had purchased a property, but having discovered the sale to be fraudulent, he now claimed against the solicitors and estate agents acting in the sale.
Held: The claim failed. Neither the solicitor nor the estate agent could be . .
These lists may be incomplete.
Updated: 11 June 2021; Ref: scu.562028
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She applied for an order under section 14 of the 1996 Act. The county court judge found that the initial presumption in favour of fifty fifty had been displaced, and set a share of 10% for K. The Court of appeal allowed K’s appeal.
Held: The appeal succeeded, and the decision of the judge at the County Court was restored.
‘The time has come to make it clear, in line with Stack v Dowden (see also Abbott v Abbott [2007] UKPC 53, [2007] 2 All ER 432), that in the case of the purchase of a house or flat in joint names for joint occupation by a married or unmarried couple, where both are responsible for any mortgage, there is no presumption of a resulting trust arising from their having contributed to the deposit (or indeed the rest of the purchase) in unequal shares. The presumption is that the parties intended a joint tenancy both in law and in equity. But that presumption can of course be rebutted by evidence of a contrary intention, which may more readily be shown where the parties did not share their financial resources.’
Lord Walker and Lady Hale said: ‘the following are the principles applicable in a case such as this, where a family home is bought in the joint names of a cohabiting couple who are both responsible for any mortgage, but without any express declaration of their beneficial interests.
(1) The starting point is that equity follows the law and they are joint tenants both in law and in equity.
(2) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change.
(3) Their common intention is to be deduced objectively from their conduct: ‘the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party’s words and conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party’ (Lord Diplock in Gissing v Gissing [1971] AC 886, 906). Examples of the sort of evidence which might be relevant to drawing such inferences are given in Stack v Dowden, at para 69.
(4) In those cases where it is clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, ‘the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property’: Chadwick LJ in Oxley v Hiscock [2005] Fam 211, para 69. In our judgment, ‘the whole course of dealing . . in relation to the property’ should be given a broad meaning, enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties’ actual intentions.
(5) Each case will turn on its own facts. Financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended (as in case (3)) or fair (as in case (4)).’
Lord Walker, Lady Hale, Lord Collins , Lord Kerr, Lord Wilson
[2011] UKSC 53, UKSC 2010/0130, [2011] 46 EG 104, [2011] 3 FCR 495, [2011] Fam Law 1338, [2012] WTLR 125, [2011] NPC 116, [2011] BPIR 1653, [2011] 3 WLR 1121, 14 ITELR 491
Bailii, SC Summary, SC, Bailii Summary
Trusts of Land and Appointment of Trustees Act 1996 14
England and Wales
Citing:
Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – Drake v Whipp CA 30-Nov-1995
The parties, an unmarried cohabiting couple, disputed their respective shares in a property held in the man’s sole name. Both had made direct contributions both to the purchase of a barn and to its expensive conversion into a home. The plaintiff . .
At High Court – Jones v Kernott ChD 10-Jul-2009
The couple were unmarried but had bought a property in joint names. Ms Jones had contributed the overwhelming share of the purchase price, and had paid all outgoings after Mr Kernott left several years ago. The County court judge had awarded J 90%, . .
Cited – Grant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Kernott v Jones CA 26-May-2010
The unmarried couple bought a property together. Mr K appealed against an award of 90% of the property to his former partner. The court was asked, whether, following Stack v Dowden, it was open to the court to find that the parties had agreed that . .
Cited – Walker v Hall CA 1984
The court considered the way of distributing property purchased by an unmarried couple: ‘When such a relationship comes to an end, just as with many divorced couples, there are likely to be disputes about the distribution of shared property. How are . .
Cited – Adekunle and Others v Ritchie Misc 17-Aug-2007
(Leeds County Court) An enfranchised freehold was in joint names because the elderly tenant could not obtain a mortgage on her own. . .
Cited – Lowson v Coombes CA 26-Nov-1998
A house was purchased by an unmarried couple to live together, but conveyed into the female partner’s sole name. Her partner was still married, and she feared that on his death his wife would inherit.
Held: ‘the case being one of illegality, I . .
Cited – Pettitt v Pettitt HL 23-Apr-1969
A husband and wife disputed ownership of the matrimonial home in the context of the presumption of advancement.
Lord Reid said: ‘These considerations have largely lost their force under present conditions, and, unless the law has lost its . .
Cited – Abbott v Abbott PC 26-Jul-2007
(Antigua and Barbuda) The parties disputed the division of the family assets after a divorce. The family home was registered in the sole name of the husband. There being no provision for property adjustment, the court had to decide the division on . .
Cited – Oxley v Hiscock CA 6-May-2004
oxley_hiscockCA2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
Cited – Springette v Defoe CA 1-Mar-1992
Property was purchased in joint names, but with no express declaration of the beneficial interests. The couple had lived together for a short time as joint tenants of the local authority. They were able to purchase at a substantial discount from the . .
Cited – Pettitt v Pettitt HL 23-Apr-1969
A husband and wife disputed ownership of the matrimonial home in the context of the presumption of advancement.
Lord Reid said: ‘These considerations have largely lost their force under present conditions, and, unless the law has lost its . .
Cited – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
Cited – In re Z (A Minor) (Identification: Restrictions on Publication) CA 31-Jul-1995
The court was asked whether the daughter of Cecil Parkinson and Sarah Keays should be permitted to take part in a television programme about the specialist help she was receiving for her special educational needs.
Held: The court refused to . .
Cited by:
Cited – Gow v Grant SC 24-May-2012
The parties had lived together as an unmarried couple, but separated. Mrs Gow applied under the 2006 Act for provision. Mr Grant’s appeal succeeded at the Inner House, and Mrs Gow now herself appealed.
Held: The appeal succeeded. The Act did . .
Cited – Singh v Singh and Another ChD 8-Apr-2014
The parties disputed ownership of various valuable properties. The father asserted that they were held under trusts following the Mitakshara Hindu code, under a common intention constructive trust. The son said that properties held in his own name . .
These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.448292
Whether French law should be treated as the applicable law for a putative trust arising between parties domiciled in England, but relating to immovable property in France, because, in making the arrangements which give rise to the putative trust, the parties gave consideration to the effect of French succession law where the answer to this question is likely to affect a significant number of people because it arises in the context of (1) increased property ownership abroad by United Kingdom nationals and (2) social security legislation regulating entitlement to means tested benefits, and that is also likely to affect a significant number of people.
Held: Permission to appeal to Supreme Court Refused.
Lord Justice Mummery
[2009] EWCA Civ 1487
Bailii
England and Wales
Citing:
Judgment – Martin v Secretary of State for Work and Pensions CA 27-Nov-2009
The claimant appealed against refusal of his claim for income support. He owned property in France which had been counted to disallow his entitlement for the capital resources. Under French law the property would have been counted as subject to a . .
These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.396413
F claimed to be the beneficial owner of shares registered in the names of the claimants. The appellants challenged a finding that the shares were held on trust for F, and the implication that the first appellant had presented a dishonest claim.
Held: The appeal was dismissed. The judge had given proper consideration to the evidence and his assessment was not perverse and should stand. There had been a common intention that the shares were to be held in trust for the respondent. The circumstances including the faking of documents by others supported the judges conclusion as to the reliability of the principle claimant.
Mummery LJ, Lloyd J, Aikens LJ
[2009] EWCA Civ 1368
Bailii
England and Wales
Citing:
Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – Eckersley v Binnie CA 1988
The court considered the duties of a judge considering conflicting expert evidence: ‘In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he . .
Cited – Datec Electronics Holdings Ltd and others v United Parcels Services Ltd HL 16-May-2007
The defendants had taken on the delivery of a quantity of the claimant’s computers. The equipment reached one depot, but then was lost or stolen. The parties disputed whether the Convention rules applied. UPS said that the claimant had agreed that . .
Cited – Piglowska v Piglowski HL 24-Jun-1999
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Cited – Biogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
Cited – Fanmailuk.Com Ltd and Another v Cooper and others ChD 11-Jun-2008
Claim for a declaration that the entire share capital was held on trust for the claimant.
Held: Engelhart QC said: ‘on an application under section 261 it would be ‘quite wrong . . to embark on anything like a mini-trial of the action’ . .
Appeal from – Fanmailuk.Com Ltd and Another v Cooper and others ChD 17-Dec-2008
A declaration was sought as to the beneficial ownership of some shares. . .
These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.384329
The couple were unmarried but had bought a property in joint names. Ms Jones had contributed the overwhelming share of the purchase price, and had paid all outgoings after Mr Kernott left several years ago. The County court judge had awarded J 90%, and K 10%. K appealed.
Held: The appeal was dismissed.
Nicholas Strauss QC J
[2009] EWHC 1713 (Ch), [2009] 1 All ER 947, [2009] Fam Law 1043, [2010] 1 P and CR DG4, [2010] 1 FLR 38, [2009] BPIR 1380, [2009] WTLR 1771
Bailii
Trusts of Land and Appointment of Trustees Act 1996 14
England and Wales
Cited by:
Appeal From – McCartney and Unite The Union and Another v Nortel Networks UK Ltd (In Administration) ChD 22-Apr-2010
The administrators gave employees of the company notice of termination of their employment. Then administrators refused consent under para 43(6) to actions against the company in the Northern Ireland Industrial Tribunal for protective awards, unfair . .
At High Court – Kernott v Jones CA 26-May-2010
The unmarried couple bought a property together. Mr K appealed against an award of 90% of the property to his former partner. The court was asked, whether, following Stack v Dowden, it was open to the court to find that the parties had agreed that . .
At High Court – Jones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.368638
The claimant appealed against refusal of his claim for income support. He owned property in France which had been counted to disallow his entitlement for the capital resources. Under French law the property would have been counted as subject to a trust depriving him of any beneficial interest.
Held: The appeal failed. The house had been placed in his name in order to avoid French inheritance taxes. That could not be left out of the putative implied trust. The 1987 Act produced a similar consequence.
Lord Justice Mummery, Lady Justice Arden and Lord Justice Elias
[2009] EWCA Civ 1289, Times 17-Feb-2010, [2010] AACR 9, [2010] WTLR 671
Bailii
Recognition of Trusts Act 1987
England and Wales
Cited by:
Judgment – Martin v Secretary of State for Work and Pensions (Permission to Appeal) CA 27-Nov-2009
Whether French law should be treated as the applicable law for a putative trust arising between parties domiciled in England, but relating to immovable property in France, because, in making the arrangements which give rise to the putative trust, . .
These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.381580
Suggestion of common intention constructive trust.
[2008] EWCA Civ 829
Bailii
England and Wales
Updated: 09 June 2021; Ref: scu.270862
Appeal from order for sale of substantial property and an occupation rent
Mrs Justice Andrews
[2020] EWHC 1743 (QB)
Bailii
Trusts of Land and Appointment of Trustees Act 1996 14
England and Wales
Updated: 07 June 2021; Ref: scu.652411
[2021] EWHC 853 (Ch)
Bailii
England and Wales
Updated: 04 June 2021; Ref: scu.662122
Whether car and other assets held subject to trusts
Deputy Master McQuail
[2021] EWHC 1055 (Ch)
Bailii
England and Wales
Updated: 04 June 2021; Ref: scu.662219
Mr Cooley was the managing director of the claimant. His duties included procuring business in the field of developing gas depots. The company had unsuccessful negotiations with the Eastern Gas Board for the development of four depots. However, the Gas Board were not prepared to let the contracts to the company. The Gas Board subsequently approached Mr Cooley in his private capacity; and indicated that they would be prepared to contract with him personally. In the course of the meeting, Mr Cooley acquired knowledge that the company did not have; and would have wanted to have. Mr Cooley therefore resigned his office (on the basis of a false excuse) and entered into the contracts with the Gas Board.
Held: He was accountable for the profit. Where a fiduciary obtains a benefit in breach of his fiduciary duty, he is liable to account even if the beneficiary could not itself have obtained that benefit or opportunity. A company director owes a fiduciary duty to report relevant information of concern to the company: ‘Information which came to [the director] while he was managing director and which was of concern to [the company] and was relevant for [the company] to know, was information which it was his duty to pass on to [the company] because between himself and [the company] a fiduciary relationship existed . . ‘ and ‘Therefore, I feel impelled to the conclusion that when the defendant embarked on this course of conduct of getting information . . using that information and preparing those documents . . and sending them off . . , he was guilty of putting himself into the position in which his duty to his employers, the plaintiffs, and his own private interests conflicted and conflicted grievously. There being the fiduciary relationship I have described, it seems to me plain that it was his duty once he got this information to pass it to his employers and not to guard it for his own personal purposes and profit. He put himself into the position when his duty and his interests conflicted.’
References: [1972] 1 WLR 443
Judges: Roskill J
Jurisdiction: England and Wales
This case is cited by:
These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.192208
Application to enter a restriction against the title of a property bought under the right to buy provisions by the Applicant’s former partner, now deceased. The property was bought in 2004 and the registered proprietor died 2017. The Respondent was her son. It appeared from the solicitors’ purchase file that it was always intended that the deceased) would be the sole legal and beneficial owner. Applicant did apply for a joint mortgage with the deceased, but in the event the mortgage was executed by her only. There was no satisfactory evidence of any payments made by the Applicant referable to the purchase. His application was dismissed.
References: [2019] UKFTT 164 (PC)
Links: Bailii
Judges: Ms Ann McAllister
Jurisdiction: England and Wales
Last Update: 24 October 2020; Ref: scu.644619
Losses were sustained by a trust-estate owing to part of the funds having been lent to a harbour trust upon an assignment of their revenues and property. By Act of Parliament passed shortly before this investment was made it was provided that assignments for money borrowed before the passing of the Act and in force at that date should have priority over assignments for money borrowed after the passing of the Act. The investment had been submitted by the law-agent of the trust along with another for the consideration of the trustees, and while expressing his preference for the other he stated his opinion that the harbour trust investment was ‘perfectly safe.’ One of the trustees was found liable to make good the loss, upon the ground that although the investment was one of a class in which the trustees under the trust-deed were entitled to invest the funds of the trust, it was not in the circumstances sufficient in point of value to make it a reasonably prudent investment for trust funds. He brought an action of relief against the law-agent of the trust. The Court found in fact that the investment had been made, not upon the recommendation or advice of the law-agent, but as the result of independent inquiries made by one of the trustees. Held that the law-agent was entitled to absolvitor.
Opinion ( per the Lord President) that while the law-agent of a trust by submitting an investment to the trustees in effect represents that the investment is of a kind or class upon which they have power to place the trust-funds, and will be liable if loss results from the trustees having acted upon this implied representation, it is not the duty of the law-agent in respect of his appointment as law-agent to the trust, and without any express employment or instructions, to make inquiries as to the sufficiency in point of value of a proposed investment, and that consequently, even if it is not proved that the trustees proceeded upon their own inquiries in making an investment, the law-agent will not be liable unless it is proved that he was employed to advise the trustees as to the sufficiency of the security, and that the trustees acted upon his advice.
References: [1900] SLR 38 – 343
Links: Bailii
Judges: Lord Kyllachy, Ordinary
Jurisdiction: Scotland
Last Update: 23 September 2020; Ref: scu.611715
The donor gave his son the benefit of a debt of about andpound;24,000 which was owing to him, in return for which the son covenanted to pay the father an annuity of andpound;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’
References: [1895] 1 QB 99
Judges: Lord Esher MR
Jurisdiction: England and Wales
This case is cited by:
These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.223765
A mere declaration of intent is not sufficient to create a trust, as there must be a clear and identifiable declaration of trust – an express declaration.
References: 1914 SC (HL) 1, [1914] UKHL 3, [1914] AC 311, (1914) 1 SLT 111
Links: Bailii
Judges: Lord Kinnear
Jurisdiction: Scotland
This case is cited by:
These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194235
References: [1995] EWCA Civ 12, [1995] 2 FLR 915, [1996] 1 FCR 442, [1995] 4 All ER 562
Links: Bailii
Coram: Stuart Smith, Waite, Schiemann LJJ
Ratio:
This case is cited by:
(This list may be incomplete)
Last Update: 17 July 2019
Ref: 259354
References: (1882) 21 ChD 571
Coram: Lord Jessel MR
Ratio: Jessel MR held that: ‘It is settled law that when a testator has given a pure discretion to trustees as to the exercise of a power, the court does not enforce the exercise of the power against the wish of the trustees, but it does prevent them from exercising it improperly.’
This case cites:
(This list may be incomplete)
Last Update: 12 March 2019
Ref: 536789
References: [1966] 3 All ER 721, [1967] 2 AC 46, [1966] UKHL 2
Links: Bailii
Coram: Lord Upjohn, Lord Hodson
Ratio: A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to the exact circumstances of each case. The relevant rule for the decision of this case is the fundamental rule of equity that a person in a fiduciary capacity must not make a profit out of his trust, which is part of the wider rule that a trustee must not place himself in a position where his duty and his interest may conflict.’ ‘The whole of the law is laid down in the fundamental principle exemplified in Lord Cranworth’s statement [in Aberdeen Railway Co v. Blaikie]. But it is applicable, like so many equitable principles which may affect a conscience, however innocent, to such a diversity of different cases that the observations of judges and even in your Lordships’ House in cases where this great principle is being applied must be regarded as applicable only to the particular facts of the particular case in question and not regarded as a new and slightly different formulation of the legal principle so well settled.’ and ‘The phrase ‘possibly may conflict’ requires consideration. In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in conflict.’
The court considered the circumstances under which information has been acquired so as to impose a duty of confidence: ‘The true test is to determine in what circumstances the information has been acquired. If it has been acquired in such circumstances that it would be a breach of confidence to disclose it to another then courts of equity will restrain the recipient from communicating it to another. In such cases such confidential information is often and for many years has been described as the property of the donor, the books of authority are full of such references: knowledge of secret processes, ‘know-how’, confidential information as to the prospects of a company or of someone’s intention or the expected results of some horse race based on stable or other confidential information. But in the end the real truth is that it is not property in any normal sense but equity will restrain its transmission to another if in breach of some confidential relationship.’
Lord Upjohn said: ‘In general, information is not property at all. It is normally open to all who have eyes to read and ears to hear. The true test is to determine in what circumstances the information has been acquired. If it has been acquired in such circumstances that it would be a breach of confidence to disclose it to another, then courts of equity will restrain the recipient from communicating it to another. In such cases such confidential information is often and for many years has been described as the property of the donor, the books of authority are full of such references; knowledge of secret processes, ‘know-how’, confidential information as to the prospects of a company or of someone’s intention or the expected results of some horse race based on stable or other confidential information. But in the end the real truth is that it is not property in any normal sense, but equity will restrain its transmission to another if in breach of some confidential relationship’.
Jurisdiction: England and Wales
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Leading Case
Last Update: 10 January 2017
Ref: 180410
References: [2010] EWHC 1605 (Ch), [2010] NPC 72, 13 ITELR 154
Links: Bailii
Coram: David Richards J
Ratio:
Jurisdiction: England and Wales
Last Update: 12-Nov-16
Ref: 420023
References: Times 06-May-1993
Ratio: Trustees to hold company de-merger shares as capital.
Last Update: 06-Sep-16
Ref: 89268
References: Gazette 21-Apr-1993
Ratio: Compensation calculated at ‘highest opportunity value’.
Last Update: 31-Aug-16
Ref: 82467
References: (1937) 57 CLR 666, [1937] HCA 52
Links: Austlii
Coram: Dixon J, Latham CJ
Ratio: (High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as ‘a trust which is declared by the law to affect the conscience of [the survivor’s] executor and of the volunteers who are devisees or legatees under his will.’
Dixon J set down the principles for mutual wills: ‘It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will he undertook would be his last will . . The purpose of an arrangement for corresponding wills must often be, as in this case, to enable the survivor during his life to deal as absolute owner with the property passing under the will of the party first dying. That is to say, the object of the transaction is to put the survivor in a position to enjoy for his own benefit the full ownership so that, for instance, he may convert it and expend the proceeds if he choose. But when he dies he is to bequeath what is left in the manner agreed upon. It is only by the special doctrines of equity that such a floating obligation, suspended, so to speak, during the lifetime of the survivor can descend upon the assets at his death and crystallize into a trust. No doubt gifts and settlements, inter vivos, if calculated to defeat the intention of the compact, could not be made by the survivor and his right of disposition, inter vivos, is, therefore, not unqualified. But, substantially, the purpose of the arrangement will often be to allow full enjoyment for the survivor’s own benefit and advantage upon condition that at his death the residue shall pass as arranged.’
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Last Update: 28-Aug-16
Ref: 183791
References: [1859] EngR 402, (1859) 26 Beav 572, (1859) 53 ER 1019
Links: Commonlii
Ratio: A testator devised freeholds to two and their heirs as tenants in common, and in case either should die without lawful issue surviviog her, then he devised her part ‘ unto the survivor.’ Held, that ‘survivor’ was to he read in its ordinary sense, and not in the sense of ‘other.’
A partition decreed without a commission, in a case in which infarns were interested, upon satisfactory evidence of the value.
Last Update: 11-Aug-16
Ref: 287754
References: [1853] EngR 240, (1853) 9 Hare App 86, (1853) 68 ER 807
Links: Commonlii
Ratio: A question in the cause was whether a settlement was voluntary, which was expressed to be made for ‘divers good and valuable considerations.’ No evidence had been given on the question of consideration ; and the Court was of opinion that the parties ought to have an opportunity of shewing whether there was or was not a valuable consideration for the deed ; and the case was adjourned to Chambers for that purpose.
Last Update: 06-Aug-16
Ref: 294226
References: [1855] EngR 294, (1855) 5 De G M & G 233, (1855) 43 ER 859
Links: Commonlii
Ratio: A testator, by his will, gave the residue of his property to three trustees, whom he appointed executors, upon trust to sell and invest the same and to pay the income thereof to his widow for life, and after her decease, to his children, who were still infants at the time of his death. The eldest child attained twenty one in the year 1839, and the youngest in 1846. The three executors proved the will, but one of them almost exclusively acted. The money which was the proceeds of the estate was suffered by two of the executors to remain in the hands of the third, who ultimately became insolvent. On the youngest child attaining twenty one on behalf of himself and his brothers and sisters, attempted to obtain payment from the acting executor, and in 1848 wrote to him a letter consenting to receive payment of the amount then admitted to be due by annual instalments. In 1849, and shortly before the insolvency of the acting trustee, a bill was filed by all the children against the three trustees for the purpose of making them each responsible. Held, that inasmuch as it was the duty of the three trustees to have explained to their cestuis que trust what their rights were, and as they had not done so, there was nothing in the conduct of the children to deprive them of their remedy against the three trustees, who were accordingly declarecl to be, jointly arid severally liable to make good the deficiency,
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Last Update: 02-Aug-16
Ref: 292216
References: [1853] EngR 74 (B), (1853) 10 Hare 385
Links: Commonlii
Ratio: The statement in a deed of settlement, executed after marriage, was that it was made in consideration of 5s., and divers other good and valuable considerations. Held, that this statement did not, as against strangers to the settlement, amount to evidence that it was not voluntary; and a Defendant claiming against it as a purchaser for valuable consideration, and insisting at the Bar that the settlement was fraudulent and void under the stat. 27 Eliz. c. 4, the Court directed an inquiry whether the settlement was founded on any and what valuable Consideration.
Last Update: 30-Jul-16
Ref: 294060
References: [1857] EngR 114, (1857) 3 K & J 152, (1857) 69 ER 1060
Links: Commonlii
Ratio:
Last Update: 20-Jul-16
Ref: 289860
References: [1866] EngR 161, (1866) 35 Beav 658, (1866) 55 ER 1053
Links: Commonlii
Ratio:The meaning of the word ‘survive’ in a limitation of property, is that the person to survive shall be living at the time of the event which he is to survive; it does not mean living at any time whatever after the event referred to. Consequently, a gift over, if there should be no child or remoter issue of AB who should survive the testator and AB, and should live to attain twenty-one, is not void for remoteness.
Last Update: 19-Jul-16
Ref: 280872
References: [2016] ScotSC 28
Links: Bailii
Ratio:
Last Update: 18-Jul-16
Ref: 567221
References: (1841) 4 Beav 115 affd Cr & Ph 240, [1841] EWHC Ch J27, [1841] EWHC Ch J82, (1841) Cr & Ph 240, [1841] EngR 629, (1841) 4 Beav 115, (1841) 49 ER 282
Links: Bailii, Bailii, Commonlii
Coram: Lord Cottenham
Ratio:A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of the legal title in the property to him.
Held: The beneficiary was entitled to call for the property. The intention of the testator was that the beneficiary would ultimately take the property, but had merely sought to postpone the date on which this would happen. Beneficiaries who are sui juris and together entitled to the whole beneficial interest can put an end to the trust and direct the trustees to hand over the trust property as they may direct: ‘once something has been given to a person the court will not enforce any attempt to keep it out of his grasp until a later date.’
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Last Update: 07-Jul-16
Ref: 182790
References: (1858) 2 De G & J 421, [1858] EngR 673, (1858) 2 De G & J 421, (1858) 44 ER 1053
Links: Commonlii
Ratio:The doctrine of laches and delay did not apply to an express trust, save possibly where there was a release or abandonment by the beneficiary and that was capable of being presumed from the facts of the case.
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Last Update: 17-Jun-16
Ref: 223436
References: [1770] UKHL 2_Paton_187, (1770) 2 Paton 187
Links: Bailii
Ratio Absolute Disposition – Trust.-
A party disponed certain lands to his agent, in order, as he stated, to qualify him to vote in the county election, but held no written obligation under his hand to redispone. Held that the absolute disposition, together with the law agent’s accounts, amounting to £1400 due him, foreclosed all idea of trust, unless this were proved by writing under the trustee’s hand, in terms of the act 1696.
Last Update: 14-Apr-16
Ref: 561660
References: [1861] EngR 833, (1861) 3 Giff 192, (1861) 66 ER 378
Links: Commonlii
A trust to raise by sale of a competent part of a sum of £3389 Bank annuities a sum not exceeding £2000, and pay -&he same to the Plaintiff : Held, not to be exhausted or fully performed by raising a sum of 31391 at the Plaintiffs request.
Last Update: 03-Feb-16 Ref: 284594
References: [1861] EngR 625, (1861) 1 J & H 484, (1861) 70 ER 837
Links: Commonlii
Where a tenant for life purchased the reversion of his nephew in the family estate : Held, that the transaction fell within the ordinary rule as to reversionary interests, and was not to be regarded as a family arrangement.
The fact that a reversion is dependent on contingencies, which do not admit of estimation by actuaries, does not relieve the purchaser from the onus of shewing that fair value was given.
A family estate stood settled on A. (a bachelor) for life, with remainder to his issue in tail male, with remainder to his nephew B. in tail male, with remainder to the brothers of B. successively in tail male. A. purchased B.’s interest, and required B. to concur in disentailing the estate and conveying the fee. The sale was bona fide intended to be for a fair price ; and the object of the purchaser appeared to be to prevent the estate being sold by B. out of the family. The devisees of A. having failed to prove that fair value was given, the sale was set aside, without costs on either side.
Semble, that the estate to be valued was the reversion in fee which the purchaser acquired, and not merely the base fee which the vendor alone could have sold to a stranger.
Last Update: 29-Jan-16 Ref: 284386
References: [1865] EngR 550, (1865) 19 CB NS 606, (1865) 141 ER 924
Links: Commonlii
Last Update: 12-Jan-16 Ref: 281462
References: [1865] EngR 561, (1865) 19 CB NS 651, (1865) 141 ER 942
Links: Commonlii
Last Update: 12-Jan-16 Ref: 281473
References: [1818] EngR 592, (1818) 3 Swans 1, (1818) 36 ER 751
Links: Commonlii
A deed of compromise executed by a cestui que trust, with the representatives and creditors of a deceased trustee was guilty of a breach of trust, rescinded, and co-trustees declared responsible.
Last Update: 04-Jan-16 Ref: 332592
References: , [1835] EngR 1081, (1835) 7 Sim 490, (1835) 58 ER 925
Links: Commonlii
A. was entitlecl for the joint lives of himself and his father to a rent-charge of £500 charged on an estate of which his father was tenant for life, with remainder to A in fee. A having agreed to sell to B a perpetual rentcharge of £500 issuing out of the estate, assigned to E. the rent-charge to which he was so entitled, and conveyed his reversion in fee to trustees in trust to secure to B a rent-charge of £500 a year, to commence on the termination of the prior rent-charge. Held, that the transaction was not to be considered as a sale of an interest in reversion, as A when he made the agreement, had it in his power to secure to B a perpetual rentcharge of £500 in possession.
In determining whether a fair price has been paid for a reversionary interest, the market value, and not an actuary’s estimate, ought to be regarded.
Last Update: 13-Dec-15 Ref: 316589
References: [1986] 1 All ER 885
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Last Update: 09-Dec-15 Ref: 223945
References: [1861] EngR 318, (1861) 1 J & H 341, (1861) 70 ER 778
Links: Commonlii
Settlement – Wife’s estate – General power to husband before limitation to children
Last Update: 22-Nov-15 Ref: 284079
References: [1746] EngR 746, (1746) 3 Atk 440, (1746) 26 ER 1054 (B)
Links: Commonlii
Last Update: 19-Nov-15 Ref: 381134
References: [1804] EngR 294, (1804) 9 Ves Jun 580, (1804) 32 ER 728
Links: Commonlii
Last Update: 18-Nov-15 Ref: 343762
References: [1861] EngR 322, (1861) 29 Beav 163, (1861) 54 ER 589
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A testatar devised his estate for providing £108 a year for scholars and exhibitioners of a college, and the remainder of the yearly rents for purchasing advowsons for them. By a codicil, he gave for a school and schoolmaster a house and land at Bala, and £15 a year for the master, and £15 to the scholars, and he gave the money necessary for keeping the school in repair; ‘there beirig £4, 17s. of the present rents ‘I of his estate in Merionethshire, above the £108 to the scholars and exhibitioners at the college, and £15 to the schoolmaster, and £15 to the scholars at Bala; but the house and land at Bala ‘being of the yearly rent of £3, 13s being so much of the £4, 17s., the remainder thereof is £1 5s. per annum for the repairs.’ The rental having greatly increased, held that the school ‘was entitled to such a proportion of the increase as £4, 17s. bore to the whole original rents.
Last Update: 17-Nov-15 Ref: 284083
References: [2014] 1 HKC 368, [2013] HKCFA 93
Links: Hklii
Coram: Millett NPJ, Ribeiro PJ
(Hong Kong) A trustee owes a duty to hold trust funds and apply them for the purposes of the trust (a stewardship or custodial duty). He is bound to answer for his stewardship when called on by the beneficiary to do so. If for any reason he misapplies the trust fund, or part of it, he must immediately reconstitute the trust fund in full. If he fails to do so, the court will order him to reconstitute the fund in specie, if that is possible, or pay the equivalent sum in money so as to produce the same result in financial terms.
Millett NPJ said that the relevant principle, in a case of unauthorised dissipation of trust funds is that: ‘Where the defendant is ordered to make good the deficit by the payment of money, the award is sometimes described as the payment of equitable compensation; but it is not compensation for loss but restitutionary or restorative. The amount of the award is measured by the objective value of the property lost determined at the date when the account is taken and with the full benefit of hindsight.’
Ribeiro PJ carried out a valuable review of the authorities concerned with equitable compensation in the context of a commercial relationship. He noted that where a relationship was fiduciary, there might be obligations which were not fiduciary in nature; and, equally, even in a commercial relationship, there might be aspects which engaged fiduciary obligations.
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Last Update: 09-Nov-15 Ref: 553779
References: [1994] 3 SCR 377, 117 DLR (4th) 161, [1994] 9 WWR 609, 97 BCLR (2d) 1, 16 BLR (2d) 1, 171 NR 245, 22 CCLT (2d) 1, 49 BCAC 1, 57 CPR (3d) 1, 5 ETR (2d) 1, [1994] CarswellBC 438, AZ-94111096, JE 94-1560, [1994] SCJ No 84 (QL), [1994] ACS no 84, 50 ACWS (3d) 469, 80 WAC 1, 95 DTC 5135
Links: Canlii
Coram: La Forest, L’Heureux-Dube, Sopinka, Gonthier, McLachlin, Iacobucci and Major JJ
Supreme Court of Canada – Fiduciary duty — Non-disclosure — Damages — Financial adviser — Client insisting that adviser not be involved in promoting — Adviser not disclosing involvement in projects — Client investing in projects suggested by adviser — Ultimate decision as to whether or not to invest that of client — Substantial losses incurred during period of economic downturn — Whether or not fiduciary duty on part of adviser — If so, calculation of damages.
Contracts — Contract for independent services — Breach by failure to disclose — Calculation of damages.
La Forest J, giving the judgment of the majority, drew the distinction between fiduciary relationships and commercial interactions governed by the common law, the former being characterised by one party’s duty to act in the other’s best interests, and often by power on the one hand and dependency on the other, whereas the common law generally respected the pursuit of self-interest. The proper approach to damages for breach of a fiduciary duty was said to be restitutionary. On that basis, the majority of the court concluded that the claimant was entitled to be compensated for the loss sustained on investments which he had made on the advice of a fiduciary who had failed to disclose a conflict of interest, notwithstanding that the loss had resulted from an unforeseen general economic downturn.
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Last Update: 05-Nov-15 Ref: 554204
References: (1992) 96 DLR (4th) 289, [1992] 3 SCR 6, 14 CCLT (2d) 1, AZ-92111111, EYB 1992-67549, JE 92-1644, [1992] SCJ No 85 (QL), 36 ACWS (3d) 466, 57 OAC 321
Links: Canlii
Coram: La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ
Supreme Court of Canada – Limitation of actions – Torts – Assault and battery – Incest – Woman bringing action against father for damages for incest – Whether or not action limited by Limitations Act – Application of the reasonable discoverability principle – Whether or not incest a separate and distinct tort – Limitations Act, R.S.O. 1980, c. 240, s. 45(1)(j), 47.
Limitation of actions – Equity – Fiduciary relationship – Parent/child – Woman bringing action against father for incest – Whether incest constitutes a breach of fiduciary duty by a parent – Whether limitation period applicable and whether the defence of laches applies.
Limitation of actions – Fraudulent concealment – Incest – Whether a limitation period in an incest action is postponed by defendant’s fraudulent concealment.
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Last Update: 03-Nov-15 Ref: 554205
References: [1866] EngR 157 (A), (1866) 35 Beav 504
Links: Commonlii
Last Update: 07-Sep-15 Ref: 280868
References: [1856] EngR 276, (1856) 3 Sm & G 192, (1856) 65 ER 620
Links: Commonlii
Coram: Sir William Page Wood V-C
A sum of money paid to a trustee to persuade him to retire in favour of the payee was to be ‘treated as a part of the trust fund’.
This case is cited by:
References: [1865] EngR 589, (1865) 2 Dr & Sm 549, (1865) 62 ER 728
Links: Commonlii
Trustees took counsel’s opinion as to whether they should exercise a discretionary power to advance part of their trust fund for the benefit of some of the cestuis que trust: and others of the cestuis que trust having filed a bill to restrain them from exercising such discretion, they took a second opinion as to their defence in the
suit.
Upon summons for production by the Plaintiffs :
Held, that, the first case and opinion having reference to the dealings with the trust estate, all the cestuis que trust had a right to inspection, and the Court ordered them to be produced ; but that the second case and opinion being after suit instituted, the Plaintiffs had no right to production.
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References: [1864] EngR 762, (1864) 2 Dr & Sm 285, (1864) 62 ER 630
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Payment into Curt. Discretionary Power in Trustees Over Fund, – Although the mere existence of a discretionary power in trustees over a fund affords no reason why the Court should not order payment of the fund into Court, unless such payment into Court would interfere with the exercise by the trustee of such discretion ; yet where it appeared that trustees were about in the due exercise of a discretionary power to deal with a fund, the Court refused to order payment into Court, although the trustees had not actually parted with the fund.
This case is cited by:
References: [1851] EngR 789, (1851) 1 Sim NS 464, (1851) 61 ER 180
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John WilIiam Earl of Bridgewater devised his freehold estates to trustees, in trust to convey them to the use of Lord Alford, his great-nephew, for ninety-nine years, if he should so long live ; remainder to trustees and their heirs doring the life of Lord Alford, in trust to preserve contingent remainders ; remainder to the use of the heirs male of the body of Lord Alford, with diverse remainders over: provided that, if Lord Alford should die not having acquired the title of Duke or Marquis of Bridgewater, the estate directed to be limited to the heirs male of his body should cease, and the estates should thereupon go over and be enjoyed according to the subsequent uses and limitations directed by his will. Lord Alford died leaving a son, but without having acquired the title. Held, that the proviso was valid.
This case is cited by:
References: [1853] EngR 1085, (1853) 1 Sm & G 590, (1853) 65 ER 258
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The father of a female infant, who was himself tenant by the curtesy, but whose right was regarded as doubtful, became next friend of his daughter in a suit against the trustee of his late wife’s real estates, in which a decree was obtained for a partition, and conveyance of the infant’s portion to the father, until she attained twenty one, and then to the use of the infant in fee. The father received the rents and profits, and duly accounted to his daughter in respect of them ; but, on her marriage, filed a bill against her and her husband, for a declaration that his daughter’s interest in the estate might be declared, subject to his estate by curtesy. Held, that the Plaintiff, having relinquished what was regarded as a doubtful right, by an arrangement under which he derived a benefit, was not entitled to relief. Semble -A wife, entitled to real estate sested in trustees, who, under an erroneous impression of her rights, paid the rents to other persons, died, without having received the rents, leaving her husband and one daughter her surviving that; the husband was tenant by the curtesy.
This case is cited by:
References: [1857] EngR 259 (C), (1857) 23 Beav 450
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A father directed a fund, given to his daughter, to be settled ‘upon her and her issue,’ so that ‘the same might not be liable or subject to the debts, control or engagements of any husband’ whom she might happen to marry during her lifetime. Held, that the settlement ought to give the daughter a power of appointment by will, in default of issue. Form of settlement in such a case.
References: [1736] EngR 81, (1736) Cas T Talbot 20, (1736) 25 ER 637
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Coram: Talbot LC
By Lord Chancellor Talbot – Where articles are entered into before marriage, and a settlement is made after marriage different from those articles (as if by articles the estate was to be in strict settlement, and by the settlement the husband is made tenant in tail whereby he hath it in his power to bar the issue), this Court will set up the articles against the settlement; but where both articles and settlement are previous to the marriage, at a time when all parties are at liberty, the settlement differing from the articles will be taken as a new agreement between them and shall control the articles. And although, in the case of West v Errissey . . afterwards in the House of Lords, in 1727, the articles were made to control the settlement made before marriage, yet that resolution no way contradicts the general rule; for in that case the settlement was expressly mentioned to be made in pursuance and performance of the said marriage articles, whereby the intent appeared to be still the same as it was at the making of the articles.
References: [1783] EngR 55, (1778, 1783) 1 Bro CC 206, (1783) 28 ER 1086
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(Lincoln’s Inn Hall) Devise to trustees to pay debts, then to stand seised to the use of A ‘for Life, without impeachment of waste ; after his decease to the use of the heirs male of his body, severally, respectively, and in remainder, is an estate-tail in A. Where tenant for life pays off an incumbrance upon the estate, he shall be considered as a creditor for the money so paid ; but where tenant in tail pays, it is in exoneration of the estate of which he may make himself absolute owner. This is merely a general rule of presumption or primary inference ; and therefore liable to be rebutted by circumstantial evidence to the contrary.
References: [1856] EngR 706, (1856) 2 K & J 647, (1856) 69 ER 942
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A married woman, by her will, in exercise of a power of appointment over trust moneys, made several bequests, and ‘after payment of her just debts, funeral and testamentary expenses, and the expenses attending the execution of her will, appointed’ the residue of the trust moneys among her nieces.
Held: The charge of funeral expenses was not contingent upon her surviving her husband, and that her husband surviving was entitled to repayment, out of the trust moneys, of money paid by him in respect of such expenses.
References: [1816] EngR 865, (1816) 2 Mer 71, (1816) 35 ER 867 (B)
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References: (1857) 24 Beav 448, [1857] EngR 795 (B), (1857) 24 Beav 445
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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.
This case is cited by:
References: [1963] 1 All ER 857, [1963] 3 WLR 742, [1963] Ch 576
Coram: Wilberforce J
An application was made for the trustee to be replaced. The trustee complained that he would remain liable in certain events, and sought an indemnity from any new trustee out of the trust fund.
Held: A new trustees would be under ‘the normal duty of preserving an equitable balance, and if at any time it was shown they were inclining one way or the other, it would not be a difficult matter to bring them to account.’ The court asked to what extent a trustee may have a lien over the trust fund for the liabilities to which that trustee may be subject.
This case cites:
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References: [1852] EngR 803, 11 Vict c 96, (1852) 61 ER 428
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As between the husband’s creditors and the wife, in respect of the wife’s equity for a settlement, the Court will, under circumstances, give the wife more than one-half; and where the wife had been at the time of the marriage and long afterwards in circumstances of comfort, and was reduced to distress by the husband’s embarrassments, the Court gave the costs of the Petitioner and of the husband’s assignees out of the fund, which was £681, £400 to the wife, and the remainder to the Petitioner ; the wife’s costs out of her own fund.
References: [1852] EngR 796 (A), (1852) 5 De G & Sm 622
Links: Commonlii
Coram: Sir James Parker VC
In a suit by a trustee against his co-trustee, a solicitor, and the parties beneficially interested under a will, some of them being infants, the costs of all parties had been ordered to be taxed and paid. It appeared that the Defendant trustee, the solicitor, had conducted his defence by his partner. The Taxing Master allowed the solicitor trustee costs out of pocket only. Held, that the rule which had allowed to solicitor trustees costs out of pocket only being well established, the Court would not, with reference to the question of costs, inquire whether the conduct of the suit by the partner of the solicitor trustee was beneficial for all parties, though no party objected to such inquiry, but that all costs beyond those out of pocket must be disallowed.
References: [1843] EngR 1216 (A), (1843) 7 Beav 47
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References: [1873] EngR 3, (1873) 9 Moo PC NS 426, (1873) 17 ER 574
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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.
References: [1855] EngR 231, (1855) 20 Beav 20, (1855) 52 ER 509
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References: [1742] EngR 24, (1742) 2 Coop T Cott 534, (1742) 47 ER 1291 (C)
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LORD CHANCELLOR in this case, that where there is a power to grant a rent charge for life, and the rent is given during widowhood, it is a good execution of the power, for it is an estate for life. Like grant of a jointure during widowhood in bar of dower, it is a good jointure by the statute E27 Hen. VIn. c. 101. Power was to grant an annuity of 250 per annum. Grant of one of £40 per annum is a full execution ; and the extent of it could not after be made up by a subsequent execution for the rest, the first being a complete execution.
References: [1859] EngR 908, (1859) 4 De G & J 619, (1859) 45 ER 241
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This case cites:
References: [1848] EngR 347 (C), (1847-1848) 2 Coop T Cott 325
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If all the heirs of a Scotch entail were necessary parties to a suit in this Court, touching matters in which they are interested as such heirs of entail, the suit could not proceed, not only on account of their number, but because future heirs of entail coming into esse would not be bound by any proceedings in it, as their claim is not through any persons parties to the suit.
As you cannot have, in any shape, before the Court all the heirs of entail whom you seek to bind, it would be idle to prove that some are out of the jurisdiction.
When, to avoid a failure of justice in the Court from the peculiar nature of the interest under a Scotch entail, it shall become necessary to decide the point [as to making all the heirs of a Scotch entail parties to a suit], some rule must be laid down, for which there is no precedent.
Not possible to dispute the proposition, that the heir of a Scotch entail is not bound by the proceedings in a suit to which he was no parly, he claiming under the entail, and not deriving title through anyone, a party to the suit, and having a direct interest in the subject of that suit in his own right, though not in possession.
Although the heir is not bound by the proceedings in such suit, he cannot have a decree in his own suit, unless he can shew that he was injured by the former decree, or has interests inconsistent with its directions.
References: Unreported, 7 July 1981
Coram: Goulding J
Two prospectively separate purchasers in a later ‘subject to contract’ arrangement between them had replaced their earlier concluded agreement as to how a property, if acquired, would be dealt with.
Held: Effect was to be given to the agreement by way of constructive trust, not to the ‘subject to contract’ arrangement but simply to the notion that the two parties should be obliged to share.
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Last Update: 03-Mar-16 Ref: 188287