Trust and Trustees
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1744 |
| Date | 01 January 1744 |
| Court | High Court of Chancery |
English Reports Citation: 21 E.R. 1116
HIGH COURT OF CHANCERY
1116 TRUST AND TRUSTEES 1 EQ. CA. ABE. 379. [379] GAP. LIII. trust and trustees. (A) When a Trust shall be said to be raised. (B) Of resulting Trusts, or Trusts by Implication. (0) What shall be a Trust, and not an Use executed by the Statute, (D) What Act of the Trustee shall defeat the Trust, or be a Breach of the Trust in him. (E) What Acts of the Trustee jointly with Cestui que Trust, or by Cestui que Trust only, shall defeat the Trust, or destroy contingent Remainders. (F) When a Trust is to be executed, what Estate or Interest is to be conveyed, and to whom. (G) Trustees how to account, and what Allowances to have. (H) How far Trustees are answerable for each other. (A) when a -trust shall be said to be raised. 1. If a Man devises £1500 to A. and B. for such Uses as the Testator had declared to them, and by them not to be disclosed, and he discloses the Trust to A., who by Letter discloses it to B., this shall be a Trust, and the Letter is a good Declaration thereof, though either, or both the "Trustees be dead. Trin. 1689, Crooke and Brooking, 2 Vern. 50, 106. (When a Trust is well raised for Payment of Debts, vide Devise for Payment of Debts, Title Devise; Resulting Trusts for the Benefit of an Heir, Title Heir [1 Eq. Ca. Abr. 264]; where Executors shall be Trustees for the next of Kin, Title Executors and Administrators [1 Eq. Ga. Abr. 235]). 2. But if a Man devises £40 to be paid to his Cousin J. S., and by him to be disposed of in such Manner as the Testator should by a private Note acquaint him with, and dies without having made [380] any such Appointment; this shall be a good Bequest to /. S., and shall not go to the Executors, from whom it was intended to have been given away. [Lambert v. Bainton,] 1 Chan. Ca. 198. 3. If an Impropriator devises to one that served the Cure, and to all that should serve the Cure after him, all the Tithes and other Profits, &c., tho' the Curate is uncapable of taking by this devise in such Manner, for want of being incorporate, and having Succession, yet the Heir of the Devisee shall be seised in Trust for the Curate for the Time being. 2 Vent. 349, by Finch, Lord Chancellor. 4. A. lent B. £100, and in the Note which was given for it, Mention was made that it should be disposed of as A. should direct; on a Bill exhibited for it, the Court declared it was a Depositum or Trust, and decreed Payment of it, tho' it was barred by the Statute of Limitations. 2 Vent. 345. 5. A. in consideration of £80 conveys an Estate absolutely to B., and afterwards A. brings a Bill to redeem, and B. by Answer insists that the Conveyance was absolute, but confesses, that after the £80 paid, with Interest, it was to be in trust for the Wife and Children of A., and A. replies to the Answer; though there be no other Proof of the Trust, yet it will be decreed for the Wife and Children. Pasch. 1693, Hampton and Spencer, 2 Vern. 288-9. (S. C. ante [1 Eq. Ga. Abr.], 36.) 6. So if /. S. makes his Will, and his Wife Executrix, and the Son afterwards pre vails on his Mother (by telling her that the Executorship would be troublesome to her, &c.) to get J. S. to make a new Will, and name him Executor therein, he promising to be a Trustee for the Mother, which is done accordingly, and in that Will there is but a small Legacy given the Wife; this will be decreed a Trust for the Wife on the Point of Fraud, notwithstanding the Statute of Frauds and Perjuries. Hil. 1684, Thyn and Thyn, 1 Vern. 296. (B) OF RESULTING TRUSTS, OR TRUSTS BY IMPLICATION. 1. If a Man purchases Lands in another's Name, and pays the Money, it will be a Trust for him that paid the Money, tho' there be no Deed made, declaring the Trust thereof; for the Statute of Frauds and Perjuries extends not to Trusts raised by operation of Law. 2 Vent. 361. Vide [Gascoine v. Thwing] 1 Vern. 366, 367, S. P., 1BQ. CA. ABB. 381. TRUST AND TRUSTEES 1117 admitted; but there said, that the Proof must be very clear, that he paid the Purchase-Money. (By the 29 Car. 2, All Declarations and Creations or Trusts of Lands or Hereditaments must be in Writing, signed by the Party, or by his last Will in Writing, or else void ; except Trusts arising by Implication of Law, and transferred or extinguished by Act of Law, which shall be of the same effect as if this Act had not been made.*) 2. If there are three Lessees of a Church-Lease, and one of them surrenders the old Lease, and takes a new Lease in his own Name, it shall be a Trust for all. Mich. 1684, Palmer and Young, 1 Vern. 276, per Curiam. [381] 3. A. and B. agreed together to take a Lease of a Colliery for less than three Years, for which they contracted at a certain Eent, but by the Agreement the Lease was taken in A.'s Name only; tho' at the Time of the executing thereof, the Lessor insisted, that B. should be a joint Lessee with A., and should receive a Moiety of the Profits, and be answerable for a Moiety of the Eent, and refused to let it on any other Terms, and accordingly demanded and received a Moiety of the Rent from B. On a Bill brought by B., A. pleaded the Statute of Frauds and Perjuries, and that there was no Declaration of a Trust in Writing ; B. insisted that it was good, being a Lease for less than three Years ; or if his Title was not good on that Account, yet it was good as a resulting Trust; as to the first, the Court held, that tho' a Lease for three Years may be good by Parol, yet when such a Lease is made in Writing, the Trust of that Lease cannot be declared by Parol; and as to the second, ordered the Plea to stand for an Answer (the Judge, who sat in my Lord Chancellor's Absence, being in doubt about it, tho' he inclined to over-rule the Plea). Mich. 1682, Riddle and Emerson, 1 Vern. 108. 4. A.'s Father had executed a Grant of the next Avoidance of a Church to B. the Defendant's Father, who was a Clergyman, and a Person much intrusted and employed by him; and the Grantee knew nothing of the making of this Grant; and being examined in a Cause had deposed, that he did not purchase it; and it was held, that this was a resulting Trust to the Grantor, there being no other Trust declared. Hil. 1697, The Duke of Norfolk and Brown. (Prec. in Chan. 80, S. C., in totidem verbis.) 5. But if the Mortgagee assigns over his Mortgage to /. 8. and declares a Trust thereof by Parol for A. and B., there being in this Case an express Trust declared, though by Parol only, it shall prevent a resulting Trust to the Assignor; for the Statute of Frauds, which saves resulting Trusts, extends only to such as were resulting Trusts before the Statute; and a bare Declaration by Parol before the Act would prevent any resulting Trust. Trin. 1693, Lady Bellasis and Compton, 2 Vern. 294, but no Decree. 6. If a Father purchases Lands in the Name of his eldest Son, this shall be an Advancement for the Son, and not a Trust for the Father, though the Father has been in possession of it, and has received the Rents and Profits thereof. Hil. 28 Car. 2 [1677], Lord Gray and Lady Gray, 1 Chan. Ca. 296. [Scroope v. Scroope,] 1 Chan. Ca. 27, S. P. [Elliott v. Elliott,] 2 Chan. Ca. 231 (a), S. P., and there said to be the constant Rule. (S. C. but not S. P. ante [1 Eq. Ca. Abr.], 270.) (a) Note: In 2 Chan. Ca. 231, Lord Chan. Nottingham took a Distinction where a Parent made a Purchase in the Name of an unadvanced Child, and where in the Name of a Child already advanced. In the former Case it was only an Advancement for the Child, in the latter a Trust for the Parent. 7. So where the Lord of a West-Country Manor (his Tenants refusing to renew) made a Lease to his Daughter for ninety-nine Years, and afterwards sold the Estate to J. S., who had Notice of the Lease, and took a collateral Security, that the Daughter should release within four Years after she attained her Age of Twenty-one Years; and though it was insisted, that this was a Trust for the Father, and that it was the usual Method, that Lords of West-Country Manors took, when the Tenant in Possession refused to renew; yet my Lord Chancellor held it no Trust for the Father; but an Advancement for his Child; and that the Purchaser having purchased with Notice of it, and taken a collateral Security, he must make the best of his Security. Trin. 1687, Jennings and Selleck, 1 Vern. 467, decreed. [382] 8. So if a Father purchases a Copyhold Tenement in the Name of his eldest * Note : This relates to Trusts and equitable Interests, but not to an Use, which is a legal Estate. Per Lord Chan. 1 Will. Eep. 112. 1118 TRUST AND TRUSTEES 1EQ. CA. ABB. 383. Son, an Infant of about eleven Years old, and lays out £400 in Improvements, pays the Purchase-money, and all the Fines, and enjoys it during his Life (but having surrendered it to the Use of his Will), devises it to his Wife for Life, and after to his younger Children, who were otherwise unprovided for; and the eldest Son recovers in Ejectment; the Wife and Children cannot be relieved against it, for the Purchase shall be considered as an Advancement for the Son, and not a Trust for the Father, though he enjoyed it during his Life; for the Son was but an Infant at the Time of the Purchase. Pasch. 1687, Mumma and Mumma, 2 Vern. 19. Vide Baylis v. Newton, 2 Vern. 28. 9. A Man bought Copyhold Lands of the Nature of Borough English, in the Name of his eldest Son, but there was no Declaration of Trust in Writing; but the Plaintiff would have had it as a Trust for the Father, who, as well as the eldest Son, were both dead; it was agreed the Father paid the Purchase-Money, and many Witnesses were examined on both Sides, and Acts of Ownership, as Receipts of Rents, Repairs, &c., proved in both Father and Son; so that the Proofs as to that Matter seemed to be pretty equal; but there being no Declaration in Writing, that it was a Trust for the Father, the Court decreed it an Advancement for the Son ; which was affirmed in the House of Lords. Trin...
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