June 4, 1898.]
not created in this case-that the transaction | was an imperfect gift, in regard to which equity will not interfere to assist either side, but will leave the parties as it finds them, and that consequently, this injunction must be dissolved."
This case appears to me in its circumstances to come very near to the one now before the Court and to support the position of the plain- tiffs. Two points in it are especially deserving of notice. In the first place the Master of the Rolls expressly refused to recognize any difference in respect of transactions of this kind between the case of husband and wife and the case of strangers, or, in other words, he held that such transactions between husband and wife fell within the general rule of law on the subject. And in the next place the terms of the grant to the wife" as her sole and absolute property for ever"-were, I think, sufficient to defeat the marital rights of her husband by creating a separate use for the wife in the subject of the grant.
The next case is one which makes in favour of the defendant's contention. It is that of Grant v. Grant, 34 Bear. 623, decided by Sir John Romilly, M. R., in 1865. There the widow of the testator, Mr. Grant, claimed, as gifts to her from her husband, several chattels, such as statuettes, etc., which were at the testator's residence at his decease, and she brought the suit against his executor to enforce her claim. The Master of the Rolls, in a considered judgment, held that the plaintiff was entitled to a decree. He said: It has been very properly observed, on both sides, that in cases of this description. the question in equity is merely one of evidence, and that it cannot now be disputed that a husband may be trustee for his wife. That is perfectly settled, and the only question is, whether be has constituted himself such a trustee or not. I apprehend that the fact of the transaction taking place between the husband and the wife, instead of between strangers, makes no differ ence, in this respect, further than this-that, in the case of a gift of chattels by one stranger to another, there must be a delivery of the chattels in order to make the gift complete, whereas, in the case of husband and wife, there cannot be a delivery, because, assum. ing they are given to the wife, they still remain in the legal possession of the husband, and therefore it is impossible to give that completion to the gift that would be necessary to give effect to it between strangers. There- fore, this comes under that class of cases in which it has been held, that though there is not an absolute delivery a declaration of trust is sufficient. The question here is, whether the husband has used words which are equivalent to a declaration of trust. In the first place, these words need not be in writing, that is quite settled by the authorities. They must be clear, unequivocal, and irrevocable, but it is not necessary to use any technical words, it is not
necessary to say, I hold the property in trust for you, nor is it necessary to say, I hold the same for your separate nse. Any words that show that the donor means, at the time he speaks, to divest himself of all beneficial interest in the property are, in my opinion. sufficient for the purpose of creating the trust. I think it is also sufficient, for the purpose of showing that the trust has been created, if he afterwards states that he has so created the trust, though there was no witness except the donee present at the time the trust was created. For instance, if A, who has £1,000 consols standing in his name, in the presence of wit- nesses or in writing (it does not matter which), says to B, I hereby give you £1,000 consols now standing in my name in the books of the governor and company of the Bank of Eng- land, in my opinion, that would create A a trustee for B, and the gift would be complete." In this case the learned judge appears to qualify to a limited extent the proposition which he had laid down in Price v. Price supra as to the practical identity of the position of
■ husband and wife in dealings of this kid with that of strangers. But, notwithstanding this limited qualification, the following remarks of Vice Chancellor Hall in. In re Breton's estate; Breton v. Woollven, L. R. 17 Ch. D. at p. 420, appear to be well founded The case Grant v. Grant was that of a gift to a
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CHINA OVERLAND TRADE REPORT.
wife, and if the late Mester of the Rolls had based his judgment on that ground, supporting it as being a special and peculiar case, and creating a different law as applicable to bus band and wife in every case, I should have had nothing more to do than follow that decision. But it is plain, from the reasons given for the decision, that it was meant to be applicable to every other case of the kind, and not merely to that of husband and wife." And, taking this view, it is plain from the Vice- Chancellor's judgment that he regarded the decision as not reconcileable with Milroy v. Lord, and therefore declined to follow it.
On the other hand Vice-Chancellor Malina in Baddeley v. Baddeley, L. R. 9 Ch. D. at p. 115, said that the law on this subject was "correctly stated in Grant v. Grant."
It may be observed that in this case the Master of the Rolls used language some- what wider in its scope as to the test for determining the validity of a gift than he had employed in Mews v. Mews, 15 Beav. 533-a case which was cited in the argument. There he said: The evidence which is required to constitute a valid gift, as I have before stated, is that there must be some clear and distinct act by which the husband has divested himself of the property, and engaged to hold it as a trustee for the separate use of his wife." This language again was taken from the judgment of the Master of the Rolls in McLean v. Long- lands, 5 Ves. 71.
$.
In Moore . Moore, L. R. 18 Eq. 474, decided by Hall, V.C., in 1874, the facts were as follows:-A husband, two years before his death, gave to his wife a railway debenture, subsequently converted into railway stock, which remained in his name and on which the dividends were received by him, but paid to his wife. He gave the certificates to his wife, and they remained in her posses- sion until he required them in order to re- place a lost dividend warrant.
While on his death-bed be handed the certificates to his wife, saying. these are yours." The Vice-Chancellor held that the gifts, being made by the husband to the wife in a an insufficient way, could not be supported as a trust. The husband had intended an immediate gift, and had not meant to make himself a trustee; and the question must be decided exactly in the same way as if a bill had been filed by the next friend of the wife against the husband in his life time. The Vice-Chancellor further said that his view of the case was founded upon Milroy v. Lord supra, and continued:-"I do think it very important to keep a clear and definite distinction between cases of imperfect gift and cases of declaration of trust, and that we should not extend beyond what the anthorities have already established, declarations of trust, so as to supplement and supply what, according to decisions of the highest authority, would otherwise be imperfect gifts. I refer to the decisions of Lord Cottenham in Edwards v
|
Jones, 1 My. & Cr. 226, and of Sir William Grant in Autrobus v. Smith, 12 Ves. 39, and other similar cases, where the distinction has always been considered to be very marked and clear; and we shall only be able to satisfac- torily dispose of these cases when they arise by keeping this distinction in view."
In Re Shield; Pethybridge v. Burrow, 53 L. T. N. S. 5, Lord Justice Lindley quoted these observations and said he entirely acceded to them.
The next two cases were ach relied on by counsel for the defendant as supporting his contention. They are Baddeley v. Baddeley L. R. 9 Ch. D. 113, decided by Malins, V. C., in 1878, and Fox v. Hawks; Hawks v. Fox, L. R. 13 Ch. D. 822, decided by Bacon, V. C., in 1879. In the case of Baddeley w. Baddeley, John Baddeley executed a deed poll, of which the material part was as follows:- Whereas I am beneficially possessed of the ground rents hereby intended to be settled, now in consider ation of my love and affection for my wife, I do hereby settle, assign, transfer, and set over unto my said wife Eliza Baddeley, as though she were a single woman, her heirs, executors, administrators, and assigns, all that my share in [certain specified houses and ground rents in Middles ex] as though she were now feme sole and unmarried, and in accordance with the spirit and intention in the recent Act of Parliament
443
entitled the Married Women's Property Aot, 1870." The deed was duly registered in the Middlesex kegistry, and Mrs. Baddeley entered into the receipt of the rents. She now claimed that the deed poll operated as a valid assign- ment, and a demurrer to the claim was put in on behalf of John Baddeley's legal personal representatives. The Vice-Chancellor, while * recognizing the general rule as to imperfect gifts, said: "But this is, in my opinion, a case where the husband has declared himself a trustee for his wife, and she entered into possession, an act which I construe, not as an attempt to take possession adversely to her hus- band, which could not be done, as is shown by Roe v. Wilkins, 4 A. and E. ~6, but as a taking possession of her separate property under the trust. The husband was no doubt mistaken in thinking he could make this gift by way of assignment, but there is enough in the deed to make it operate as a declaration of trust which the Court ought to carry into effect."
It will be seen from a perusal of the judg- ment in this case that the decision turned upon the special facts of the case, such as the wife's entry into pussession and receipt of the rents, and upon the special terms of the deed poll; and did not really lay down any exception to the general rule of law in the case of a transfer between husband and wife.
11
This decision was followed in the second of the two cases referred to, namely, Fox v. Hawks; Hawks v. Fox supra. There a hug. band, being about to leave England for s residence in India, at the request of his wife, who was to remain in England, executed an assignment by deed to her of a leasehold dwell- ing-house, to hold the same unto her, "her executors, administrators, and assigns, as. ber separate estate." No trustees were appointed, the husband and wife being the only parties to the deed. The title deeds of the house, and also the deed of assignment, were left by the husband in his wife's possession. In these circumstances it was held by Vice-Chancellor Bacon that the deed purported to be, and was, an assignment by the husband to his wife, for her separate use, of this property; that it was clear, from his evidence, that at the time he executed the deed he intended to make a settlement upon her; that, knowing trustees might be appointed, and refusing to name one, he chose to constitute himself the
sole trustee of the deed; and that this was consistent with her afterwards requiring- as she had done a power of attorney from him to enable her to deal with the house. Accordingly he declared the husband a trustee of the property for his wife.
It will be noticed that in some of its circum- stances this case resembles the one now before the Court while in others it is quite unlike it. It will also be observed that the judgment does not purport to set up any exception, in the case of husband and wife, to the general rule of law which regulates imperfect transfers of property; it appears to proceed entirely upon
the special facts of the case.
Mr. Robinson urged that, even assuming these two cases to go as far as was contended on behalf of the defendant, they were distinguishable from the present case by the fact that, in each of the instruments of transfer used in these cases, words were employed which were apt to create and did create a separate estate in the wife in the subject of the gift. I think it is clear that the fact was so in each of the two cases. if seems equally clear that the words used in the present case, namely, "assign and give absolutely unto the said Lucia Vittoria Musso
to hold Vittoria Musso
unto the said Lucia
absolutely " are not sufficient to constitute a separate use in favour of the defendant. And the difference between the cases is of importance in connexion with the question whether or not there is a declara- tion of trust, because a gift to separate use necessitates a trust, and if no trustee is named, it is not unreasonable to hold that the husband has constituted himself a trustee for the preservation of the separate estate.
These two cases were observed upon in In re Breton's Estate; Breton v. Woollen, L. R. 17 Ch. D. 416, decided by Hall, V.C., în 1881. In that case Frederick Breton, by three letters written and signed by him and handed to his wife, gave her certain furniture, plate, and other