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Chap. X.

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occasionally going on board ship, holding that this case came within the exception of the act, and that it was the will of a seaman “at sea," although the deceased was not actually on board ship at the time when the will was made.(a) So a codicil signed but not attested on board a Queen's ship in a river by the commander-in-chief actually engaged in a naval operation, (b) the informal will of an invalided surgeon in the navy, written on board ship while on his way home, (c) and of a mariner serving on board “The Excellent” whilst she was permanently stationed in Portsmouth harbour, (d) have been held to be within the exception of the Wills Act, s. 11.

Entries made in a book kept by a mariner while at sea, written in pencil and unattested,(e) a letter written by a seaman in the merchant service in the Margate Roads, unattested, and containing dispositive words, (f) and a latter written by the master of a trading vessel after arrival at his port of destination, (g) have been admitted to probate.

A mariner's will, commencing "instructions to be followed if I die at sea or abroad,” was held to be conditional, and pronounced against; the testator having died in this country.(h)

(a) Re Lay, 2 Curt. 375. (e) Re Thompson, 5 No. Cas.

(6) Re Admiral Austen, 2 596. Rob. 611.

(f) Re Milligan, 2 Rob. 108. (C) Re Saunders, L. R. 1 P. (9) Re Parker, 2 Sw. & Tr. & D. 16.

375. (d) Re M'Murdo, L. R. 1 P. (h) Lindsay v. Lindsay, L. & D. 540.

R. 2 P. & D. 459.

CHAPTER XI.

DECLARATIONS OF TRUST.

CHAP, XI.

HE seventh section of the Statute of Frauds All declara

provides that “all declarations or creations tions or crea

of trusts or confidences of any lands, tenetions of trust shall be in

ments or hereditaments shall be manifested writing.

and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void, and of none effect.”(a)

Before the Statute of Frauds a trust of lands might have been declared by parol. (b)

Trusts of freeholds, copyholds, (c) and of chattels real Freeholds, copyholds, and are within this section of the statute, and therefore a chattels real, within the trust relating to such interests must be proved in the statute,

manner provided by the act.(d)

Gifts to charitable uses are within the statute, and, Charitable

uses.

(a) As to execution and attestation of wills, see ante,

p. 302.

(6) Adlington v. Cann, 3 Atk. 149, 151 ; Fordyce v. Willis, 3 Bro. C. C. 587; Thruxton v. Attorney-General, 1 Vern. 341; Bellasis v. Compton, 2 Vern. 294.

(c) Withers v. Withers, Amb. 152; Langfielde v. Hodges, Lofft, 230; Acherley v. Acherley, 7 Bro. P. C. 273; but see Devenish v. Baines, Prec. Ch. 5.

(d) Skett v. Whitmore, Freem. 280 ; Riddle v. Emerson, 1 Vern. 108; Eq. Cas. Abr. 381, pl. 3; Bellasis v. Compton, 2

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therefore, a trust for a charity cannot be set up without CHAP. XI. a declaration in writing, even though there are such circumstances in favour of the charity that a testator could not mean anything else. (a) But chattels personal are not within the statute, and Chattels per

sonal not. a declaration of trust relating to them may therefore be made by parol, either by the donor declaring himself, or some other person, a trustee.(b) There

may

be valid declaration of trust in favour of Volunteer. a volunteer.(c) The words of the declaration must be Declaration clear, unequivocal, and irrevocable,(d) and if there is no and irrevoca: doubt about it, the Court will give effect to the trust as

ble. readily as if it were in writing.(e)

Remarks made in the course of conversation are not sufficient. “It may be doubtful,” said Sir W. P. Wood, V.C., “ whether the Court would hold that a voluntary trust could be created by merely oral expression; Vern. 294; Eq. Cas. Abr. 381, 461; 1 Ph. 157; Hughes v. pl. 5; Hutchins v. Lee, 1 Atk. Stubbs, 1 Hare, 476; Hawkins

Forster v. Hale, 3 Ves. v. Gardiner, 2 Sm. & G. 451; 696.

Peckham v. Taylor, 31 Beav. (a) Lloyd v. Spillett, 3 P. 250; Grant v. Grant, 34 Beav. Wms. 344, affd. 2 Atk. 148; 623; Lister v. Hodson, L. R. 4 Barn. 384 ; Adlington v. Cann, Eq. 30; Parker v. Stones, 38 3 Atk. 150; Boson v. Statham, L. J. Ch. 46; Roberts v. Roberts, 1 Eden. 513.

447;

15 W. R. 117 ; 15 L. T. (N. S.) (6) Fane v. Fane, 1 Vern. 31 ; 260. Fordyce v. Willis, 3 Bro. C. C. (c) Jones v. Lock, 1 Ch. 28, 587; Nab v. Nab, 10 Mod. 404 ; overruling a dictum contra in Lucas V. Lracas, 1 Atk. 270; Scales v. Maude, 6 D. M. G. West, 456; Bayley v. Boulcott, 4 Russ. 347; Thorpe v. Owen, (d) Grant v. Grant, 34 Beav. 5 Beav. 224; Benbow v. Towns. 623.

1 M. & K. 510; George v. (@) Peckham v. Taylor, 31 Bank of England, 7 Price, 646; Beav. 254. M Fadden v. Jenkyns, 1 Hare,

51.

CHAP. XI.

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Trust of money secured on mortgage.

so much might depend on a correct report of the words. If, as part of a verbal communication by a proposed settlor, he had used words of this sort: I propose to do so and so,' or, 'It is my present intention to do it,' the effect might be to show that he had not at the time absolutely determined to create the trust; and in such a case I can well imagine that the Court would require extremely strong evidence before it would say that an irrevocable trust was created.” (a)

Where a father put a cheque into the hand of his son, an infant of nine months old, saying, "I give this to baby for himself,” and then took back the cheque and put it away, and also expressed his intention of giving the amount of the cheque to the son, and the cheque was found among his effects after his death ; it was held that there had been no valid declaration of trust. (6)

A parol declaration of a trust of a sum of money secured upon a mortgage of real estate has been supported. Thus, where A took a mortgage in the name of B, declaring that the principal sum should be for the benefit of B, and received the interest during his life, it was held that the money after the death of A belonged to B by force of the parol declaration.(c)

If a trust is once declared of personalty by parol, the donor cannot afterwardschange it by a parol declaration.(d)

The parol approval of a draft declaration of trust, subject to instructions as to alterations in some of the

(a) Paterson v. Murphy, 11 Moore, L. R. 18 Eq. 476. Hare, 88; and see Dipples v. (C) Benbow v. Townsend, 1 Corles, ib. 184.

M. & K. 506; and see Bellasis (6) Jones v. Lock, L. R. 1 Ch. v. Compton, 2 Vern, 294. 25; and see Hughes v. Stubbs, (d) Crabb v. Crabb, 1 M. & K. 1 Hare, 476; Maguire v. Dodd, 511; Kilpin v. Kilpin, ib. 533, 9 Ir. Ch. Rep. 452; Moore v. per Sir J. Leach.

Parol change of trust.

What is sufficient declaration of trust.

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allowed to

particulars, is not a sufficient declaration of a trust of CHAP. XI. personalty.(a) Where the settlor of a fund directs an additional sum to be invested in the names of the trustees of the fund, and the dividends are treated as if they accrued from the original fund, there will be no resulting trust for the settlor, but the additional sum will be considered as impressed with the trusts of the settlement as an augmentation of the trust fund.(6)

The Statute of Frauds cannot be used by a defendant Statute not to cover a fraudulent act. Therefore, where the plaintiff cover fraud. conveyed an estate to the defendant by a deed, in which the conveyance was expressed to be absolute in consideration of a sum of money paid by the defendant, but no purchase money actually passed, and the plaintiff alleged that he conveyed the estate to the defendant as a trustee for him; and the defendant in his answer admitted that he gave no consideration for the estate, but stated that the plaintiff made the conveyance fearing that an adverse decision would be made against him in a suit then pending in Chancery; and that it was understood that the defendant should account to the plaintiff for the rents until he could make arrangements for paying the purchase money, and if no such arrangements could be made, that he should reconvey the estate; but nevertheless claimed to hold it discharged of any trust, and claimed the benefit of the statute, it was held that the statute could not be pleaded in answer to the plaintiff's claim, and that the defendant must reconvey the estate to the plaintiff.(c) But where A, the owner of estates in

(a) Re Sykes's Trusts, 2 J. & H. 415.

(6) Re Curteis' Trusts, L. R. 14 Eq. 217.

(c) Haigh v. Kaye, L. R. 7 Ch. 469; and see Lincoln v. Wright, 4 De G. & J. 16; Davies v. Otty, 35 Beav. 208.

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