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the Bedford Level, wishing to give his son a qualification as bailiff, for which, according to the Bedford Level Act, it is necessary to “have” 400 acres in the Level, wrote to the registrar of the Level, stating his wish, and asking him to find a qualification; and the registrar thereupon, without any further instructions, selected out
, of A's land the smallest lot that exceeded 400 acres, and sent to him a deed, by which he purported to convey it to the son in fee, in consideration of natural love and affection, and the deed was at once executed by A and registered; and the son died soon after without ever having heard of the transaction; it was held on a bill filed by A to establish his title to the land, against the infant heiress-at-law of the son, that, on the ground of trust, or of mistake, or on both grounds, he was entitled to the relief sought, as it clearly appeared that neither he nor the registrar intended or considered the transaction to have the effect of making the son the beneficial owner, nor intended any fraud or illegality.(a) In May v. May,(b) a conveyance of property by a father to his son to give him a qualification to vote, was held not invalid but a bounty. In Groves v. Groves, (c) property was purchased by one person and conveyed to another in order to give the latter a vote at parliamentary elections, and the Court would not assist the purchaser, and his bill seeking to make the grantee a trustee was dismissed.
In Rex v. Portington (d) it was held that the Statute of Frauds did not bind the Crown, but took place only between party and party. In Adlington v. Cann (e)
Whether Crown bound by statute.
(a) Childers v. Childers, 1 De G. & J. 482.
(6) 33 Beav. 81.
(C)3 Y. & J. 163.
however, Lord Hardwicke said that he was doubtful as CHAP. XI. to this doctrine that the king was not bound by a statute unless he was expressly named, but referred to a case upon the sixteenth section of the statute in which it had been determined that he was not. The statute does not apply to lands in a colony ac- Lands in a
colony. quired before the statute was passed. English subjects wherever they go carry their laws with them, and therefore a new colony is to be governed by the laws of England existing at the time when possession is taken, though afterwards acts of parliament made in England without naming the colony will not be binding there.(a) It will be observed that the statute does not require what
formalities that a trust shall be declared in writing, but that it shall required. be "manifested and proved” by writing (which must be signed (6)]. " It is not required by the statute," said Lord Alvanley, “that a trust should be created by a writing; and the words of the statute are very particular in the clause respecting declarations of trust. It does not by any means require that all trusts shall be created only by writing; but that they shall be manifested and proved by writing ; plainly meaning, that there should be evidence in writing, proving that there was such a trust. Therefore unquestionably it is not necessarily to be created by writing, but it must be evidenced by writing, and then the statute is complied with; and indeed the great danger of parol declarations, against which the statute was intended to guard, is entirely taken away.”(c)
(a) See 2 P. Wms. 75; Gar. diner v. Fell, 1 Jac. & W. 22.
(6) Denton v. Davies, 18 Ves. 503.
(©) Forster v. Hale, 3 Ves. 707; and see S. C. 5 Ves. 315, per Lord Loughborough; Davies v. Otty, 35 Beav. 540; Smith v.
Evidence of trust.
A trust may be manifested and proved by a declaration made by the trustee even after the death of the cestui que trust, (a) by letters written by the settlor,(b) by an affidavit, (c) a recital in a bond,(d) or deed,(e) even though the deed may be inoperative, (f) or by a mere memorandum promising to declare a trust.(g) Where a lease was granted to W, who afterwards committed an act of bankruptcy and then executed a declaration of trust in favour of R; it was held, it having been found on an issue directed by the Court that W's name was used in trust for R, that the lease did not pass to W's assignees.(h)
When it is sought to establish a declaration of trust from informal documents, there must be demonstration that they relate to the subject matter, (i) and the trust
Requisites to proof of trust.
Matthews, 3 De G. F. & J. 151,
(a) Ambrose v. Ambrose, 1 P.
(b) O'Hara v. O'Neill, 7 Bro. P. C. 227; Forster v. Hale, 3 Ves. 696 ; S. C. 5 Ves. 308; Gardner v. Rowe, 2 S. & S. 354 ; Morton v. Tewart, 2 Y. & C. 67 ; Bent. ley V. Mackay, 15 Beav. 12; Childers v. Childers, 1 De G. & J. 482.
(c) Barkworth v. Young, 4 Drew, 1. Under the old prac. tice an admission in an answer
was sufficient, Hampton F.
(d) Moorecroft v. Dowding, 2 P. Wms. 314.
(e) Deg v. Deg, 2 P. Wms. 412.
(f) Re Bennett's Settlement Trust, 16 W. R. 331 ; 17 L. T. (N. S.) 438.
(9) Bellamy v. Burrow, Cas. temp. Talb. 98.
(h) Gardner v. Rowe, 2 S. & S. 340, affd. 5 Russ. 258; see also Earl of Plymouth v. Hickman, 2 Vern. 167.
(i) Forster v. Hale, 3 Ves. 708; Smith v. Matthews, De G. F. & J. 151,
must be shown to be certain in its nature and in its CHAP. XI. object, otherwise it must fail.(a) Parol evidence is admissible to show the position in which the writer of letters stood when he wrote them, the circumstances by which to his knowledge he was then surrounded, and the degree of weight and credit which, independently of any question of construction, may belong to the letters. (b)
The declaration of trust must be signed by the party Signature. who is by law enabled to declare such trust;” and it is now settled that the signature must be by the beneficial owner, and not by a trustee who has the legal estate ; (c) and the rule applies to personal as well as to real estate. (d)
(a) Morton v. Tewart, 2 Y. & C.C. C. 80, per Knight Bruce, V. C.; Forster v. Hale, 3 Ves. 707 ; Smith v. Matthews, 3 De G. F. & J. 151-2.
(b) Morton v. Tewart, 2 Y.
& C. C. C. 77.
(c) Tierney v. Wood, 19 Beav. 330; Donohoe v. Conrahy, 2 J. & Lat. 688.
(d) Ea parte Pye, 18 Ves. 140; Bridge v. Bridge, 16 Beav. 315.
Trusts arising, resulting, transferred, or extinguished by act of law excepted.
HE eighth section of the Statute of Frauds provides “that where any conveyance shall be made of any lands or tenements by which
a trust or confidence shall or may arise or result by the implication or construction of law, or be transferred or extinguished by an act or operation of law, then and in every such case, such trust or confidence shall be of the like force and effect as the same would have been if this statute had not been made; anything hereinbefore contained to the contrary notwithstanding.”(a)
If a trust is declared of a part only of an estate, and the instrument creating the trust, whether a deed or will, does not mention the residue, the equitable interest therein will result to the settlor.(6)
Where the whole legal interest of a grantor is given for the purpose of satisfying trusts expressed, and those trusts do not in their execution exhaust the whole, so
Trust of part of estate.
(a) This section does not extend to wills, see Lewin on Trusts, 6th ed. 171.
(6) Culpepper v. Aston, 2 Ch. Cas. 115; Cook v. Gwavas, cited in Roper v. Radcliffe, 9
Mod. 187; Loyd v. Spillet, 2