Deviations From The Terms of A Trust

DOIhttp://doi.org/10.1111/j.1468-2230.1954.tb00265.x
AuthorO. R. Marshall
Publication Date01 Sep 1954
DEVIATIONS FROM THE TERMS
OF A TRUST
THE
limits of the jurisdiction of the courts to sanction deviations
€rom the strict terms of a trust have now been fixed by the House
of
Lords
in
Chapman
v.
Chapman.’
This decision makes
it
clear
that the court does not possess plenary powers to alter a trust
because alteration is thought to be advantageous to beneficiaries
who are infants
or
not yet born, even though, paradoxically, such
beneficiaries could
of
their own volition and without the assistance
of
the court have made the desired alteration, had they been
in esse
and
sui juris.
A
brief review of the attitude of equity towards
the rights of beneficiaries
in
relation to trusts will show that this
paradox is nothing new, and will at the same time focus attention
on
the underlying diversities which are reflected in the recent
decisions.
Equity has never conceded that the
cestui que trust
is
the
owner of the trust property for all purposes.
It
began by saying
that he had nothing more than a right to compel the trustee to
perform the trust according to its terms
or
to make good any loss
caused by his failure to perform
it,
and this right ultimately became
enforceable against everyone except the bona fide purchaser for
value
of
the legal estate.2
Gradually, however, the personal right of the
cestui que trust
to compel performance of the trust expanded into an intezest in the
trust property itself at any rate for certain specific purposes. This
development is exemplified in three ways
:
First, the rule in
SAUNDERS
v.
VAUTIER
A
cestui que trust
who is
sui juris
and absolutely entitled
can put an end to a trust for accumulation which is directed
for his exclusive benefit, and call for an immediate transfer.
He can in effect say
the fund is mine: give
it
to me now.”
The basis of this is obviously something more than a right to
compel the carrying out
of
the settlor’s directions.
The
cestui que trust
has a right
in
the trust property to this
extent that he can follow
it
as a
res
into the hands of the
trustee himself
or
anyone who receives
it
from the trustee
otherwise than by purchase for value without notice. This
is additional to the personal right which he has against the
1
[1954]
2
W.L.R.
79.3;
and
see
Re Downshire, Re Blackwell
and
Re
Chapman
(C.A.)
reported
together
[1953]
2
W.L.R.
94.
2
See
Maitland,
Equity
(ed.
Brunyate),
Lectures
IX.
X,
and
XI.
3
(1841) 4
Beav.
115;
affd.
Cr.
k
Ph.
240;
10
L.J.Ch.
354.
4
(1880) 13
Ch.D.
696;
see
also
Re Diplock
[1948] 1
Ch.
465.
Secmdhy, the rule in
HALLETP’S ESTATE
420

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