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Trusts - From: 1849 To: 1899

This page lists 133 cases, and was prepared on 02 April 2018.

 
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
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."
1 Citers

[ Commonlii ]
 
Beloved Wilkes' Charity, Re [1851] EWHC Ch J52; (1851) 3 Mac & G 440; [1851] EngR 375; (1851) 42 ER 330
28 Apr 1851
ChD

Trusts, Charity
Trustees are under no general duty to explain the exercise by them of a discretion.
1 Citers

[ Bailii ] - [ Commonlii ]
 
In The Matter Of Atkinson's Trust Estate, [1851] EngR 715 (B); (1851) 4 De G & Sm 548
12 Jul 1851


Trusts

[ Commonlii ]
 
Egerton v Lord Brownlow [1851] EngR 789; (1851) 1 Sim NS 464; (1851) 61 ER 180
20 Aug 1851


Wills and Probate, Trusts
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.
1 Citers

[ Commonlii ]
 
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

[ Commonlii ]
 
Lewis v Hillman (1852) 3 HLC 607
1852

Lord St. Leonard
Trusts
A sale by a sole trustee to his nominee posing as a bona fide purchaser was held to be incapable of overreaching the interests of the beneficiaries. It was “powerless for that purpose”.
1 Citers


 
In Re Field's Trust [1852] EngR 715 (A); (1852) 16 Beav 146
11 Jun 1852


Trusts

[ Commonlii ]

 
 Lyon v Baker; 30-Jun-1852 - [1852] EngR 796 (A); (1852) 5 De G & Sm 622

 
 The Trusts of Waite's Will Ex parte Pugh; 2-Jul-1852 - [1852] EngR 803; 11 Vict c 96; (1852) 61 ER 428
 
Egerton v Earl of Brownlow [1853] 4 HLC 484; [1853] 4 HLC 1; [1853] EngR 885; (1853) 10 ER 359
1853
HL
Lord Truro, Parke B
Trusts, Constitutional
The House considered a challenge to the terms of a trust on the basis that it offended public policy. The House therefore considered the nature and importance of public policy. Held: Public policy 'has been confounded with what may be called political policy; such as whether it is politically wise to have a sinking fund or a paper circulation, or the degree and nature of interference with foreign States; with all which, as applied to the present subject, it has nothing whatever to do.' For these reasons, in our view, the defendants' point on public policy is wholly unfounded." (Lord Truro)
Parke B: "Public policy is a vague and unsatisfactory term, and calculated to lead to uncertainty and error, when applied to the decision of legal rights; it is capable of being understood in different senses; it may, and does, in its ordinary sense, mean 'political expedience,' or that which is best for the common good of the community; and in that sense there may be every variety of opinion, according to education, habits, talents, and dispositions of each person, who is to decide whether an act is against public policy or not. It is the province of the statesman, and not the lawyer, to discuss, and of the Legislature to determine, what is best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound the law only; the written from the statutes: the unwritten or common law from the decisions of our predecessors and of our existing courts, from the text writers of acknowledged authority, and upon principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is best, in his opinion, for the advantage of the community. Some of these decisions may have no doubt been founded upon the prevailing and just opinions of the public good; for instance, the illegality of covenants in restraint of marriage or trade. They have become part of the established law, and we are therefore bound by them, but we are not thereby authorised to establish as law everything which we may think for the public good, and prohibit everything which we think otherwise."
1 Cites

1 Citers

[ Commonlii ]

 
 Rochdale Canal Company v King; 1853 - (1853) 16 Beav 630
 
Kelson v Kelson [1853] EngR 74 (B); (1853) 10 Hare 385
13 Jan 1853


Family, Trusts
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.
[ Commonlii ]
 
Kelson v Kelson [1853] EngR 240; (1853) 9 Hare App 86; (1853) 68 ER 807
11 Feb 1853


Family, Trusts
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.
[ Commonlii ]
 
James Foster Groom, Henry Hunt, Daniel Titmuss And Richard Oakley v James Henry John Booth [1853] EngR 715; (1853) 1 Drew 548; (1853) 61 ER 561
13 Jun 1853


Trusts

[ Commonlii ]
 
Stone v Godfrey [1853] EngR 1085; (1853) 1 Sm & G 590; (1853) 65 ER 258
10 Dec 1853


Trusts, Equity
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.
1 Citers

[ Commonlii ]
 
Ramsden v Smith (1854) 61 ER 734; [1854] EngR 460; (1854) 2 Drew 298
2 May 1854


Trusts

[ Commonlii ]
 
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

[ Commonlii ]
 
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
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.'
1 Citers



 
 In Re Langmead's Trusts; 13-Feb-1855 - [1855] EngR 231; (1855) 20 Beav 20; (1855) 52 ER 509
 
Burrows v Walls [1855] EngR 294; (1855) 5 De G M & G 233; (1855) 43 ER 859
10 Mar 1855


Wills and Probate, Trusts
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,
1 Citers

[ Commonlii ]
 
Sugden v Crossland [1856] EngR 276; (1856) 3 Sm & G 192; (1856) 65 ER 620
18 Feb 1856

Sir William Page Wood V-C
Trusts
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".
1 Citers

[ Commonlii ]
 
Darby v Darby; Rebecca Darby v Alfred Edmund William Darby, Alice Mary Darby, Alfreda Lucy Darby, Abraham Darby [1856] EngR 328; (1856) 3 Drew 495; (1856) 61 ER 992
8 Mar 1856


Land, Trusts
A. and B. purchased Iand on a joint speculation with their joint monies for the purpose of laying it out in building plots, and reselling it at the joint profit or loss of A. and B. Held, that it was converted out and out, and the share of one of the partners deceased in part of the unrealised real estate passed to his personal representatives.
[ Commonlii ]
 
Willeter v Dobie [1856] EngR 706; (1856) 2 K & J 647; (1856) 69 ER 942
23 Jun 1856


Trusts, Wills and Probate
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.
[ Commonlii ]
 
In Re Saunders' Trust [1857] EngR 114; (1857) 3 K & J 152; (1857) 69 ER 1060
17 Jan 1857


Trusts

[ Commonlii ]
 
Stanley v Jackman [1857] EngR 259 (C); (1857) 23 Beav 450
10 Feb 1857


Trusts, Family
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.
[ Commonlii ]
 
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.
[ Commonlii ]
 
Earle v Bellingham (1857) 24 Beav 448; [1857] EngR 795 (B); (1857) 24 Beav 445
24 Jul 1857


Trusts, Wills and Probate
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.
1 Citers

[ Commonlii ]
 
Birley v Birley [1858] EngR 441; (1858) 25 Beav 299; (1858) 53 ER 651
12 Mar 1858
CA
Sir John Romilly MR
Trusts, Equity
An absolute appointment was made to an object of a power, under a prior "understanding" between the appointor and appointee, to hold in 'In trust ' for persons, some of whom were objects ancl some not. Held: The whole was void.
1 Citers

[ Commonlii ]
 
Clarke v Woodward [1858] EngR 547; (1858) 25 Beav 455; (1858) 53 ER 710
17 Apr 1858


Trusts
A fund in Court belonged in reversion to a married woman. After her death the husband, in 1821, sold arid assigned it. The tenant for life died, arid it having been found impossible to obtairi from him an affidavit of no settlement, the Court, in 1858, orclerecl payment to the assigtiee without one, on proof of there having been no children.
[ Commonlii ]
 
Roddy v Fitzgerald [1858] UKPC 16
17 Apr 1858
PC

Trusts, Land

[ Bailii ]

 
 Knight v Bowyer; 7-May-1858 - (1858) 2 De G & J 421; [1858] EngR 673; (1858) 2 De G & J 421; (1858) 44 ER 1053
 
In Re Kingsley's Trust [1858] EngR 1022 (B); (1858) 26 Beav 84
26 Jul 1858


Trusts

[ Commonlii ]
 
Clavering v Ellison (1859) 7 HLC 707
1859

Lord Cranworth
Trusts
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"
1 Citers


 
Greenwood v Percy [1859] EngR 402; (1859) 26 Beav 572; (1859) 53 ER 1019
10 Mar 1859


Trusts
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.
[ Commonlii ]
 
In Re Marsden's Trust [1859] EngR 676; (1859) 4 Drew 594; (1859) 62 ER 228
4 Jun 1859


Trusts
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.
1 Citers

[ Commonlii ]

 
 Knight v Bowyer; 1-Aug-1859 - [1859] EngR 908; (1859) 4 De G & J 619; (1859) 45 ER 241
 
Ingle - -Richards (No 1) (1860) 28 Beav 281
1860


Trusts

1 Citers


 
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 ]
 
Peover v Hassel [1861] EngR 318; (1861) 1 J & H 341; (1861) 70 ER 778
13 Feb 1861


Trusts
Settlement - Wife's estate - General power to husband before limitation to children
[ Commonlii ]
 
The Attorney-General v Jesus College, Oxford [1861] EngR 322; (1861) 29 Beav 163; (1861) 54 ER 589
13 Feb 1861


Trusts
A testator 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.
[ Commonlii ]
 
Talbot v Staniforth [1861] EngR 625; (1861) 1 J & H 484; (1861) 70 ER 837
27 May 1861


Land, Trusts
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.
[ Commonlii ]
 
Harrold v Harrold [1861] EngR 833; (1861) 3 Giff 192; (1861) 66 ER 378
23 Jul 1861


Trusts
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.
[ 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.
1 Citers

[ Commonlii ]

 
 Milroy v Lord; CA 26-Jul-1862 - (1862) 4 De GF & J 264; [1862] EWHC Ch J78; [1862] EngR 951; (1862) 4 De G F & J 264; (1862) 45 ER 1185
 
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.
[ Commonlii ]
 
Re Maxwell's Trusts [1863] EngR 381; (1863) 1 H & M 610; (1863) 71 ER 267
23 Mar 1863


Company, Trusts

[ Commonlii ]
 
Duke of Portland v Topham [1863] EngR 1051; (1863) 1 De G J and S 517; (1863) 46 ER 205
1864
CA
Turner LJ
Trusts
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".
1 Cites

1 Citers

[ Commonlii ]
 
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.

 
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
Lord Westbury LC
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.
Lord Westbury LC stated the rule: "that the donee, the appointor under the power, shall, at the time of the exercise of that power, and for any purpose for which it is used, act with good faith and sincerity, and with an entire and single view to the real purpose and object of the power, and not for the purpose of accomplishing or carrying into effect any bye or sinister object (I mean sinister in the sense of its being beyond the purpose and intent of the power) which he may desire to effect in the exercise of the power."
1 Cites

1 Citers

[ Commonlii ]
 
Pryor v Pryor [1864] EngR 412; (1864) 3 De G J & S 205; (1864) 46 ER 353
29 Apr 1864
CA
Knight Bruce LJ
Trusts, Equity
Parents having a power of appointing an estate to all or any of their children appointed it absolutely to two of their sons, upon the underatanding that the appointmens should resettle the estate upon certain trusts for the benefit of all the children then living during their respective lives, and subject thereto for the benefit of the children of the sons. This resettlement was made by a contemporaneous deed. Held, that the transaction could not be supported by analogy to the common case of an appointment to a daughter in contemplation of her marriage, accompanied by a. contemporaneous settlement of the appoInted fund, but that the appointMent was void in equity, as made upon A bargain for the benefit of persons not objecta of the pOwer,
1 Citers

[ Commonlii ]
 
Talbot v Marshfield [1864] EngR 762; (1864) 2 Dr & Sm 285; (1864) 62 ER 630
17 Nov 1864


Trusts, Litigation Practice
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.
1 Citers

[ 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

[ Commonlii ]
 
The Rt Hon Henry John Chetwynd Earl Of Shrewsbury And Earl Talbot And The Right Hon George Rice Baron Dynevor v Keightley And Others [1865] EngR 550; (1865) 19 CB NS 606; (1865) 141 ER 924
6 Jun 1865


Trusts

[ Commonlii ]
 
The Right Hon Henry John Chetwynd, Earl Of Shrewsbury And Earl Talbot, And The Right Hon George Rice, Baron Dynevor v Beazley And Others [1865] EngR 561; (1865) 19 CB NS 651; (1865) 141 ER 942
8 Jun 1865


Trusts, Landlord and Tenant

[ Commonlii ]
 
Talbot v Marshfield [1865] EngR 589; (1865) 2 Dr & Sm 549; (1865) 62 ER 728
15 Jun 1865


Trusts, Litigation Practice, Legal Professions
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.
1 Cites

1 Citers

[ Commonlii ]
 
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

[ Commonlii ]
 
Yeomans v Williams [1865] EngR 792; (1865) 35 Beav 130; (1865) B)
20 Dec 1865


Trusts

[ Commonlii ]
 
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

[ Commonlii ]
 
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
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.
[ Commonlii ]
 
Brittlebank v Goodwin (1868) LR 5 Eq 545
1868


Trusts
A trustee is bound to inform a beneficiary, who, on attaining majority is entitled to share in a trust fund, of that interest
1 Citers



 
 Re Hotchkiss Trusts; 1869 - (1869) 8 Eq 643
 
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."
1 Citers

[ Bailii ]
 
Thomas v Secretary of State for India in Council (1870) 18 WR 312
1870

James VC
Legal Professions, Trusts
Subscribers to an annuity fund asserted claims to surplus money belonging to the fund. The trustees took advice in relation to that claim. One of the subscribers filed a Summons to compel the production of the legal opinion. Held: Where there is a conflict of interest between the trustee and the beneficiaries and the trustee procures an opinion of counsel for his own protection, the beneficiaries are not entitled to inspect the opinion.
James VC said: "There is a difference between an opinion taken by a trustee on his own behalf, and one taken on behalf of the trust estate. In this case the opinion was taken by the trustees on their own behalf, after litigation had been commenced, and with a view to resisting future litigation. It is absurd to say that that is taken by a trustee on behalf of his cestuis que trustent. You might as well ask for production of the instructions given by the defendants to their counsel in this present case. The application must be refused."
1 Citers


 
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, Commonwealth
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.
[ Commonlii ]
 
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.
[ Commonlii ]
 
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; PC 14-Dec-1871 - [1871] EngR 58; (1871) 14 Moo Ind App 393; (1871) 20 ER 833
 
Vyse v Foster (1872) LR 8 Ch App 309
1872
CA
James LJ
Trusts
James LJ: "This Court is not a Court of penal jurisdiction. It compels restitution of property unconscientiously withheld; it gives full compensation for any loss or damage through failure of some equitable duty; but it has no power of punishing any one. In fact, it is not by way of punishment that the Court ever charges a trustee with more than he actually received, or ought to have received, and the appropriate interest thereon. It is simply on the ground that the Court finds that he actually made more, constituting moneys in his hands "had and received to the use" of the cestui que trust."
1 Citers


 
Imperial Mercantile Credit Association v Coleman (1873) LR 6 HL 189
1873
HL

Company, Trusts
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.
1 Citers



 
 The London Chartered Bank of Australia v William George Lempriere And Others; 6-Feb-1873 - [1873] EngR 3; (1873) 9 Moo PC NS 426; (1873) 17 ER 574

 
 Barnes v Addy; 1874 - [1874] 9 ChA 244
 
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."
1 Citers

[ lip ]
 
Heugh v Scard (1875) 33 LT 659
1875
CA
Sir George Jessel MR
Trusts
Sir George Jessel MR said: "In certain cases of mere neglect or refusal to furnish accounts, when the neglect is very gross or the refusal wholly indefensible, I reserve to myself the right of making the executor or trustee pay the costs of litigation caused by his neglect or refusal. But I expressly guard myself against saying that in every case of mere neglect, or even in every case of mere neglect, or even in every case of mere refusal, an honest executor or trustee who has fairly discharged his duty - an onerous and thankless one - is to pay costs . . In this case I find inexcusable delay, inexcusable refusal to furnish accounts, and misconduct in dealing with the trust fund . . I think he [the executor] must pay the costs of the suit, except the cost of vouching the accounts."
1 Citers



 
 Attorney General v Webster; 1875 - (1875) LR 20 Eq 483

 
 Gisborne v Gisborne; HL 1877 - [1877] 2 AC 300; [1874-80] All ER Rep Ext 1698
 
Yeatman v Yeatman (1877) 7 Ch D 201
1877

Hall VC
Litigation Practice, Trusts
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.
1 Citers



 
 Sri Gajapathi Nilamani Patta Maha Devi Garu v Sri Gajapathi Radhamani Patta Maha Devi Garu; PC 3-Jul-1877 - [1877] UKPC 30
 
Erlanger v New Sombrero Phosphate Company (1878) LR 3 App Cas 1218
1878
HL
Lord Penzance, Lord Blackburn
Trusts, Undue Influence
Where a fiduciary relationship between parties may be the occasion of unfair advantage to one of them, the burden of proof lies on that party to show that he has not used that advantage for his own benefit. The value of depreciation of a phosphate mine could be measured in order to make counter-restitution in equity.
Lord Blackburn said: "It is, I think, clear on principles of general justice, that as condition to a rescission there must be a restitutio in integrum. That parties must be put in statu quo. See Lord Cranworth in Addie v The Western Bank. It is a doctrine, which has often been acted upon both at law and in equity. But there is a considerable difference in the mode in which it is applied in Courts of Law and Equity, owing, as I think, to the difference of the machinery which the Courts have at their command. I speak of these Courts as they were at the time when this suit commenced, without inquiring whether the Judicature Acts make any, or if any, what difference.
It would be obviously unjust that a person who has been in possession of property under the contract which he seeks to repudiate should be allowed to throw back on the other party's hands without accounting for any benefit he may have derived from the use of the property, or if the property, though not destroyed, has been in the interval deteriorated, without making compensation for that deterioration. But as a Court of Law has no machinery at its command for taking an account of such matters, the defrauded party, if he sought his remedy at law, must in such cases keep the property and sue in an action for deceit, in which the jury, if properly directed, can do complete justice by giving as damages a full indemnity for all that the party has lost; see Clarke v Dixon and the cases there cited.
But a Court of Equity could not give damages, and, unless it can rescind the contract, can give no relief. And, on the other hand, it can take accounts of profits, and make allowance for deterioration. And I think the practice has always been for a Court of Equity to give this relief whenever, by the exercise of its powers, it can do what is practically just, though it cannot restore the parties precisely to the state they were in before the contract."
Lord Penzance said: "The principles of equity to which I refer have been illustrated in a variety of relations, none of them perhaps precisely similar to that of the present parties, but all resting on the same basis, and one which is strictly applicable to the present case. The relations of principal and agent, trustee and cestui que trust, parent and child, guardian and ward, priest and penitent, all furnish instances in which the Courts of Equity have given protection and relief against the pressure of unfair advantage resulting from the relation and mutual position of the parties, whether in matters of contract or gift; and this relation and position of unfair advantage once made apparent, the Courts have always cast upon him who holds that position, the burden of shewing that he has not used it to his own benefit."
Contracts (Applicable Law ) Act 1990
1 Citers


 
Ex parte Adamson; In re Collie (1878) 8 Ch D 807
1878
CA
James and Baggallay LJJ
Trusts
The Court of Chancery never entertained a suit for damages occasioned by fraudulent conduct or for breach of trust, and that the suit was always for "an equitable debt, or liability in the nature of a debt".
1 Citers


 
Special Case - Watson and Others (Munro's Trustees) [1878] SLR 16 - 211
13 Dec 1878
SCS

Trusts
Trust - Intention - Deduction of Liferent Interest of Heritable Subject in Estimating Division of Estate where One Share Bequeathed to Liferenter.
[ Bailii ]

 
 The Ferguson Bequest Fund Case; 1879 - (1879) 6 R 486
 
In re Hallett's Estate; Knatchbull v Hallett (1880) 13 ChD 696
1880
CA
Sir George Jessel MR
Wills and Probate, Trusts
Where a trustee of a policy used money received from others to make payment of premiums on an insurance policy, they would be entitled to a lien on the policy. Where an asset was acquired exclusively with trust money, the beneficiary could either assert equitable ownership of the asset or enforce a lien or charge over it to recover the trust money. In the case of a mixed substitution the beneficiary is confined to a lien.
1 Citers


 
Oceanic Steam Navigation Co v Sutherberry (1880) 16 Ch D 236
1880


Trusts

1 Citers


 
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.
1 Citers



 
 Ex parte Forder; CA 1881 - (1881) 25 Sol Journ 720

 
 Smith v Lucas; CA 1881 - (1881) 18 Ch D 531

 
 Tempest v Lord Camoys; CA 1882 - (1882) 21 ChD 571
 
In re Cross (1882) 20 Ch D 109
1882


Trusts, Equity
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.
1 Citers



 
 Speight v Gaunt; CA 20-Jan-1883 - (1882) 22 Ch D 727; [1883] EWCA Civ 1

 
 Speight v Gaunt; HL 26-Nov-1883 - (1883) 9 App Cas 1; [1883] UKHL 1; (1883-84) LR 9 App Cas 1
 
Letterstedt v Broers [1884] UKPC 1; (1884) 9 App Cas 371; [1884] UKPC 18
22 Mar 1884
PC
Lord Blackburn
Trusts, Equity, Wills and Probate
(Supreme Court of the Cape of Good Hope) Lack of harmony may be of itself a good reason for a trustee to resign or be dismissed. Lord Blackburn approved a passage in Story's Equity Jurisprudence, 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."
. . and "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 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, andc., 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."
1 Citers

[ Bailii ] - [ Bailii ]
 
Re Cowin (1886) 33 ChD 179
1886


Trusts

1 Citers



 
 In re Whiteley; 1886 - (1886) 33 ChD 347

 
 Helmore v Smith; 1886 - (1886) 35 Ch D 436
 
In re Whiteley, Whiteley v Learoyd (1886) 33 ChD 347
1886
CA
Lindley LJ
Trusts, Costs
The trustees were charged with making unauthorized or improper investments, and the claim was that the trusts of the will relating to the sums invested should be carried into execution under the direction of the court and that the trustees might be ordered to invest the sums or so much thereof as were not properly invested upon the securities mentioned in the will. The imprudent investment of one sum of £3,000 was established, but as to another of £2,000 no want of prudence or of diligence was established. There was no order as to costs so far as the £3,000 was concerned, but as to the £2,000 the trustees were given their costs out of the trust estate or out of the £3,000, for which they were liable to account. The standard required of a trustee is to take reasonable care, being the care that an ordinary prudent person of business would apply to his own affairs, keeping in mind that moral obligations to others have been undertaken
1 Citers


 
Learoyd v Whiteley [1887] UKHL 1; (1887) LR 12 App Cas 727; (1887) 12 AC 727
1 Aug 1887
HL
Lord Halsbury LC
Trusts
In managing a trust business the trustee should exercise the same care as an ordinary, prudent business person would exercise in conducting that business as if it were his or her own
1 Cites

1 Citers

[ Bailii ]
 
Farrer v Farrer's Ltd (1888) 40 ChD 395
1888

Lindley LJ
Trusts
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.
1 Citers


 
In re Dugdale, Dugdale v Dugdale (1888) 38 ChD 176
1888

Kay J
Trusts
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."
1 Citers


 
Re Brogden; Billing v Brogden (1888) 8 Ch D 436
1888


Trusts
Trustees have a duty to enforce collection of sums due to the trusts, and if necessary by litigation.

 
Magnus v Queensland National Bank (1888) 37 Ch D
1888

Lord Halsbury LC
Commonwealth, Trusts
A custodial bank was liable to restore trust funds merely because it dissipated the trust funds in a manner which was not authorised. Lord Halsbury LC said: "we are not at liberty to speculate whether the same result might not have followed whether the bank had been guilty of that default or not. The bank have in fact been guilty of default. As a matter of fact they concurred in the money being handed to a person who had no authority, in my view of the facts, to receive it."
1 Citers



 
 Rae v Meek; HL 1889 - (1889) 14 App Cas 558

 
 Nunneley v Nunneley; 1890 - [1890] 15 App Cas 186
 
In re Akerman [1891] 3 Ch 212
1891
ChD
Kekewich J
Trusts, Equity, Wills and Probate
The court was asked whether in the division of the testator's residuary estate three of the testator's seven children had to bring into account statute-barred debts due to the estate. Held. They were bound to bring them into account. Kekewich J restated the rule in Cherry v Boultbee: "A person who owes an estate money, that is to say, who is bound to increase the general mass of the estate by a contribution of his own, cannot claim an aliquot share given to him out of that mass without first making the contribution which completes it. Nothing is in truth retained by the representative of the estate; nothing is in strict language set off; but the contributor is paid by holding in his own hand a part of the mass, which, if the mass were completed, he would receive back. That is expanding what the Lord Chancellor calls in Cherry v Boultbee 'a right to pay out of the fund in hand,' rather than a set-off."
1 Cites

1 Citers



 
 Forsyth v Forsyth; 1891 - [1891] P 636
 
In re Richerson, Scales v Heyhoe [1892] 1 Ch 379
1892


Trusts
The court considered the doctrine of conversion.
1 Citers


 
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).
1 Citers


 
In re Tillott [1892] 1 Ch 86
1892
ChD
Chitty J
Trusts
The plaintiff was entitled under a will trust to a one twelfth share in the capital of the residue, contingently on the death of his mother, who was a life tenant. The residue included Bank of England Consols. He had already obtained from the court an order that the defendant will trustee write to the Bank of England authorising it to inform the plaintiff of the amount of such Consols and to produce all the documents relating to property in which the plaintiff was interested. He now sought an order that the defendant trustee authorise the Bank to inform him of any incumbrances on that property, such as charging orders or stop notices. The trustee objected, on the grounds that the plaintiff might thereby obtain information as to the dealings of other contingently entitled remaindermen with their own shares. Held: The plaintiff was entitled to have the further information sought, so that he would know whether the fund in which he was interested was incumbered or not.
Speaking of the trustee's argument, Chitty J said: "this may give the Plaintiff more information than he is entitled to ask, because as there are twelve shares in this fund, it may be that there are several distringases of the fund obtained by persons who have charges on the continent interest of the other persons, and it is clear that the trustee is not bound to give the cestui que trust of one share any information as to the dealings of the other cestui que trust in whose share he has no interest, shewing whether those shares are or are not incumbranced."
1 Citers


 
Mogridge v Clapp [1892] 3 Ch 382
1892


Trusts

1 Citers



 
 In Re Beddoe, Downes v Cottam; CA 1893 - [1893] 1 Ch 547

 
 In re Beddoe, Downes v Cottam; CA 1893 - [1893] 1 Ch 547

 
 Soar v Ashwell; CA 1893 - [1893] 2 QB 390
 
Re Owen [1894] 3 Ch 220
1894


Trusts, Limitation
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.
1 Citers


 
In re Duke of Marlborough, Davis v Whitehead [1894] 2 Ch 133
1894

Stirling J
Trusts
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."
1 Citers


 
Attorney General v Worrall [1895] 1 QB 99
1895
CA
Lord Esher MR
Trusts
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"
1 Citers


 
In re Dartnall [1895] 1 Ch 474
1895
CA

Trusts

1 Citers



 
 In re Bennett, Jones v Bennett; CA 1896 - [1896] 1 Ch 778
 
Bray v Ford [1895-99] All ER Rep 1011; [1896] AC 44
1896
HL
Lord Herschell, Lord Halsbury LC
Trusts, Equity, Litigation Practice, Damages, Defamation
An appellate court's power to order a new trial is conditional on "some substantial wrong or miscarriage" being established.
Lord Hershell said: "It is an inflexible rule of the court of equity that a person in a fiduciary position, such as the plaintiff’s, is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict. It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that, human nature being what it is, there is danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect. It has, therefore, been deemed expedient to lay down this positive rule. But I am satisfied that it might be departed from in many cases, without any breach of morality, without any wrong being inflicted, and without any consciousness of wrong-doing. Indeed, it is obvious that it might sometimes be to the advantage of the beneficiaries that their trustee should act for them professionally rather than a stranger, even though the trustee were paid for his services."
Lord Halsbury LC: What ws required was something sufficiently serious to render the decision of the jury unsafe amounting to "a substantial wrong" in which "the defendant was not permitted to present his case to the jury with the argument that his original complaint was true".
Lord Herschell discussed the approach to damages in defamation cases: "The damages cannot be measured by any standard known to the law; they must be determined by a consideration of all the circumstances of the case, viewed in the light of the law applicable to them. The latitude is very wide. It would often be impossible to say that the verdict was a wrong one, whether the damages were assessed at £500 or £1,000."
1 Citers


 
Rochefoucald v Boustead [1897] 1 Ch 196
1897

Lindley LJ
Trusts
A property was purchased by the defendant which the court found to have been on the basis as trustee for the plaintiff. The defendant resisted the plaintiff s claim on the ground of, inter alia, absence of writing. Held: This defence was rejected. A constructive trust was created. The 1677 Statute cannot be used itself as an instrument of fraud.
Lindley LJ said that it is a fraud for a person to whom land is conveyed as a trustee, and who knows it was so conveyed, to deny the trust and claim the land as her own, and: “It is further established by a series of cases, the propriety of which cannot now be questioned, that the Statute of Frauds does not prevent the proof of a fraud; and that it is a fraud on the part of a person to whom land is conveyed as a trustee, and who knows it was so conveyed, to deny the trust and claim the land himself. Consequently, notwithstanding the statute, it is competent for a person claiming land conveyed to another to prove by parol evidence that it was so conveyed upon trust for the claimant, and that the grantee, knowing the facts, is denying the trust and relying upon the form of conveyance and the statute, in order to keep the land himself.”
Statute of Frauds 1677
1 Cites

1 Citers


 
Head v Gould [1898] 2 Ch 250
1898
ChD
Kekewich J
Trusts
Kekewich J said: "On retiring from the trust and passing on the trust estate to their successors - and this is whether they appoint those successors or merely assign the property to the nominees of those who have the power of appointment - they are acting as trustees and it is equally incumbent on them in this ultimate act of office to fulfil the duty imposed upon them as at any other time."


 
 Perpetual Executors and Trustees Association of Australia Limited v Swan and Others; PC 3-Aug-1898 - [1898] UKPC 53; [1898] AC 763

 
 In re Lacy; Royal General Theatrical Fund Association v Kydd; 1899 - [1899] 2 Ch 149
 
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