The Three Certainties
| Date | 01 July 1940 |
| Published date | 01 July 1940 |
| Author | Glanville L. Williams |
| DOI | http://doi.org/10.1111/j.1468-2230.1940.tb02728.x |
20
MODERN LAW REVIEW
July,
1940
THE THREE
CERTAINTIES
HE
requirement of three “certainties” for the effectual
declaration of a trust,
as
it
is
found
in
modern
books,
goes
T
back to some words of Lord Langdale in
1840,l
although
the idea lying behind
it
is
no doubt practically coeval with the
law of
trusts.
The three certainties
are
as
follows.
(I)
Certainty
of
intention.
This
certainty has always been
required
in
theory, although some of the older cases on precatory
trusts seem to our eyes to be over-confident of what the settlor’s
intention was.
(2)
Certuinty
of
szcbjcct-madter @ropcrty).
This
phrase conceals
an
ambiguity, of which more hereafter.
(3)
Certainty
of
benejciaries
(in
the case
of
private trusts)
or
of
objects
(in
the case
of
non-charitable “purpose” trusts without
human benejciaries-i,e. trusts
of
imperfect obligation).
This
requirement does not apply to charitable trusts
if
there
is
a
general
charitable intention.
What
is
a sufficiently certain beneficiary or object
is
frequently
a
matter of very great difficulty.
It
is
clear that
if
the possible
beneficiaries or objects are marked out with some degree of
definiteness, uncertainty
as
between two or more of them may
be cured by a discretion given
to
the trustee.8 Thus a discretion
given to a trustee to distribute property among Liberal associa-
tions in the United Kingdom: or to further foxhunting? is good
as
a trust of imperfect obligation.
On
the other hand
if
no beneficiaries or objects at
all
are
indicated, save
in
very general language, the fact that a discretion
is given to the trustee
will
not save the gift, and there
will
be a
resulting trust. This was laid
down
in
the much-discussed case
of
Morice
v.
Bishop
of
Durham
(1805):
where a bequest to the
Bishop for “such objects of benevolence and liberality
as
[he] in
his
own
discretion shall most approve
of”
was frustrated by Lord
Eldon, even though the bequest was of the corpus
of
the property
and the Bishop was willing to make the distribution. The
line
1 Knight
v.
K.
(1840). 3
Beav.
148
at
173.
A
fourth
requisite
has
sometimes
been
suggested, namely that the manner in which the trust
is
to
be
performed
must
be
certain
(Reeves
v.
Bakev
(1854).
18
Beav.
372
;
Farwell,
Powers,
3rd
4..
541). or
that the trust must be possible
of
execution by the trustees (Hanbury,
Modsm
Equity,
2nd ed.,
132).
But it seems that
in
practxe these rules are usually
reducible to
one
or
the other
of
the first three.
8
Cp. the American
Rcslcctemcnt,
Trusts,
ss.
120,
IZI,
124.
1
Re
Ogdsn,
Brydon
v.
Samuel,
[I9331
Ch.
678.
Ra
Thompson,
Public
Trustee
v.
Lloyd.
[1g34]
Ch.
342.
5
10
Ves.
522,
affg.
g
Ves.
399.
See
note
in
(1935) 48
H.L.R. at
1164-5.
and
Restatement,
ss.
IZZ,
123,
417.
The Restatement does not explain why the bene-
ficiary
is
not “definitely ascertaiible” within
s.
112,
but the
lack
of
logic
is
the
result rather
of
the
law
than
of
the compilers
of
the Restatement.
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