442
instance, and I find that in Warriner v. Rogers, L. R. 16 Eq. 340, Vice-Chancellor Bacon throw doubt upon their authority and said that "all the other cases, including Kekewich v. Manning and most especially Milroy v. Lord had put the test, he thought, upon a satisfac- tory footing." Again, in In re King; Sewell . King, L. R. 14 Ch. D. 179. Mr. Romer arguendo questioned whether those decisions can be sustained at the present time, and Vice. Chancellor Hall said :- I do not require you to go into those cases. The law was misappre- hended by some judges, but all was set right by the decision in Milroy v. Lord" I will pre- sent y refer to some observations of the Court of Appeal to the same effect.
THE HONGKONG WEEKLY PRESS AND view was taken by some judges that where a voluntary assignment of something which an intended settlor intended to give to another could not take effect, the instrument might nevertheless be read as constituting him, if the property was vested in him, a trustee for the person whom he intended to benefit, I think Milroy v. Lord, which has been followed by other cases, has put an and to any such notion."
I have now examined, so far as appears to be necessary, the cases which relate to the general question of imperfect gifts as distinguished from declarations of trust. I now proceed
consider the cases in which to
gifts between husband and wife are dealt with Further, in Richards v. Delbridge, L. R. 18 and their effect in equity ascertained. An Eq. 11, Jessel M.R., declined to follow investigation of these cases will show that the Richardson v. Richardson and Morgun v. Mal-difficulty lies in determining whether the case leson on the ground that they were wholly of husband and wife is to be decided in accor opposed to the decision of the Lords Justices dance with the principles which govern the in Milroy t. Lord. He added that the re- general question or is to be regarded as excep- marks of Lord Justice Turner in that case tional in its character and therefore to be (already quoted) "appeared to him to contain decided in accordance with principles peculiar the whole law on the subject." Curiously to itself. Let me illustrate my meaning. If nough, the Master of the Rolls had been we suppose the doctrine of Milroy v. Lord counsel for the successful litigant in Morgan supra to apply to the present case, then the v. Malleson,
position is this: Domenico Musso, the hus- baad, has by a present assignment made a gift of leaseholds direct to the defendant, bis wife. But by the common law such a gift is ineffectual and passes no property in the Then there comes leaseholds to the wife. in the ruling of Lord Justice Turner to the effect settlement is intended to take that "if a
In this case of Richards v. Delbridge supra, J. Delbridge, who was possessed of leasehold premises and stock in trade, shortly before his death purported to make a voluntary gift in favour of his grandson, E. B. Richards, who was an infant, and assisted him in his business, by the following memorandum, endorsed on the lease and signed:
"This deed, and all thereto belonging, I give to E. B. Richards from this time forth, with all the stock in trade." He then delivered the lease to the mother of E. B. Richards, on behalf of the latter. It was hold that there was no valid declaration of trust of the
property in favour of E. B. Richards. In the course of his judgment the Master of the Rolls said:"The true distinction appears to me to be plain and beyond dispute; for a man to make himself a trustee, there must be an expression of intention to become a trustee. whereas words of present gift show an intention to give over property to another, and not retain it in the donor's hands for any purpose, fiduciary or otherwise." And again: "If the decisions of Lord Romilly (in Morgan v. Malleson) and of Vice-Chan- cellor Wood (in Richardson v. Richardson) were right, there never could be & 0ase where an expression of a present gift would not amount to an effectual declaration of trust, which would be carrying the doctrine on that subject too far." This decision is said in IW & T. L. C. 315 (sixth edition) to have "put the law upon this subject on a very satisfactory footing." It was followed by Bacon, V. C., in Heartley v. Nicholson, L. R. 19 Eq. 233. There the testator, being the owner of a share in a colliery, by the use of certain expressions in letters, by the signature of a minute, and by the gift of a dividend purported to give, and believed himself to have given, the share to the plaintiff, his daughter, but what he s0 did was not sufficient to pass the property in the share. On the hearing of a bill filed by the plaintiff and her husband to enforce her claim to the share, it was held that the above. mentioned expressions, signature, and gift did not amount to a declaration by the testator, or to proof of an intention and determination. on his part, that he would hold the share for the plaintiff; but that the testator, having the desire and intention that the plaintiff should, from and after a certain date, have the share as her property, failed to fulfil that desire and complete that intention.
Re Shield; Pethybridge v. Barrow, 53 L. T. N. S. 3, was the case of a memorandum signed by the donor, addressed to his executors, making a gift of a debenture bond nd requesting them on his death to give the bond to the donor, although he kept the bond and received the interest during his life. It was held by Pearson, J, that there was a good declaration of trust of the debenture bond, but this decision was reversed by the Court of Appeal, who held that the memorandum was an ineffectual attempt to assign the debenture bond, and did not amount to a good declaration of trust. In the course of his judgment Lord Justice Cotton said Down to the time of Milroy v. Lord'a
effect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust." Let us then consider the cases with a view of seeing whether they fall within the operation of this general rule or whether any special rule, applicable to the peculiar position of husband and wife, is to be deduced from them. In doing so, we must bear in mind the observation of Mr. Francis that the assignment here is complete in point of form and the difficulty only arises in con. nexion with the relation in which the assignor and the assignee stood to one another.
I will take the cases in their chronological order. It will be found that there is an even greater conflict of judicial opinion in them than in those which deal with the subject in its general aspect, and it will require much patient consideration of them to decide what is the rule which is best founded in reason and best supported by authority.
[June 4, 1898
substance which he then had or might there. after have. Lord Hardwicke held that the will was revoked as to all the personal estate by the deed poll. But he said, "the latter cannot take effect as a grant or deed of gift to the wife, because the law will not permit a man to make a grant or conveyance to the wife in his life- time, neither will this Court suffer the wife
to have the whole of her husband's estate while he is living, for it is not in the nature of a provision, which is all the wife is entitled to.”
The case of Price v. Price 14 Beav. 598, is in- structive. It was decided by Sir John Romilly, M.R., in 1851, and the decision was subsequent- ly affirmed by the Lords Justices. There George Price, the husband of the plaintiff, Esther Price, being seized in fee simple of a messunge in which he and the plaintiff resided, executed a dood poll whereby he voluntarily granted it to his wife as her sole and absolute property for ever. George Price thereafter died in- testate, and the plaintiff remained in posses. sion of the messuage. Emma Price, George Price's heiress at law, thereupon brought an action of ejectment against her, and obtained a verdict. The plaintiff then filed a bill against Emma Price to restrain execution in the action of ejectment. For the plaintiff it was argued inter alia that there was a difference with respect to voluntary gifts between the case of strangers and that of husband and wife, while for the defendant it was said that the wife, who was a mere volunteer, was not entitled to the assistance of the Court to enforce an instrument legally invalid, and that in that respect she stood in the same situation as a etranger. The Master of the Rolls, in a con.. sidered judgment, upheld the contention of the defendant. He said:"It is not disputed that the deed in question was wholly inopera- tire at law; but the plaintiff contends that this deed created the husband a trustee for the separate use of his wife, and that the heiress-at-law of the intestate became, on his death and in like manner, a trustee for the plaintiff.
In this ease, it first to be considered whether the deed would have oreated a trust enforceable in this Court as
What is the
看看
case here? The
between strangers, and, if it would not, whether the circumstance that the transaction is one | between husband and wife produces any such
relation.
as between strangers, I am of opinion that this deed would have been merely inoperative in equity as well as at law. instrument does not profess to be a declaration of trust but to be a distinct gift; the giver treats it as such, and parts with the deed, which, if he had meant to constitute himself the trustee, he should not have done. It is, in truth, not a declaration of trust, but either a gift of the whole property or nothing. As a gift it is clearly inoperative; no estate passed, and in truth, nothing took place, but the execution of the deed, the communication of it' to the wife, and the delivery of it to the attest- ing witness. If I were to decide that this deed would be good as between strangers, I should really be deciding, that if a man execute a deed, simply saying I hereby give all my estate at A to another," and nothing further takes place, either to give possession or to transfer the legal estate, this Court would compel delivery of the estate. This would, in my opinion, be contrary to the authorities, and I entertain no doubt, but that in such a case, equity would leave the parties to their legal rights, whatever they might be, and would not, in any respect, The interfere to assist either party. next question is this:-This was a transaction between husband and wife; the deed was executed for the benefit of the wife; it is expressed to be for her sole use. Did this circumstance give to the transaction a different character from that which it would have had if it had been one between strangers? Was a good trust created as soon 88 there the deed was executed P In other words, could the wife, during the life of the husband, have maintained a bill in this Court, by her next friend, against the husband, Beard v. Beard, 3 Atk., 71, was decided by to have it declared that he was a trustee of
In that case the same learned judge in 1744.
this property and to have the trusts applied for a husband, by a will executed in 1739, gave all her separate use? I am of opinion that no his estate, real and personal, to his brother and such bill could have been supported. made him his executor. Then in 1740, by a Upon the whole, therefore, I am of opinion that deed poll, he grauted to his wife all his that relation of trustee and cestui que trust was
The earliest and one of the simplest cases, is Lucas v. Lucas, 1 Atk. 269, decided in 1738 by Lord Hardwicke, C. There a husband transferred to his wife in her own name £1,000 South Sea annuities, and the Court upheld the gift. The Lord Chancellor said:"In this Court gifts between husband and wife have often been supported, (1.) though the law does not allow the property to pass; (2.) it was so determined in the case of Mrs. Hungerford and in Lady Cowper's case, before Sir Joseph Jekyll, where gifts from Lord Cowper in his life-time were supported, and reckoned by this Court, as part of the personal estate of Lady Cowper." It will be observed that in the transfer of the annuities no words importing a separate estate of the wife in them were employed. But at the hearing the wife insisted that her husband had intended to give them
+1 "to her own use to her
and that a deed to give effect to this intention by vesting them in trustees was prepared by an attorney, but afterwards her husband (on information that it would be better) transferred them to her and assured her that such transfer would effectually secure them to her." In his judgment Lord Hardwicke makes no mention of this point of the separate estate, but in Graham v. Lord Londonderry,3 Atk., at p. 394, he says, referr- ing to Lucas v. Lucas, "I was of opinion the wife was entitled to the South Sea anquities, because I considered them as given to her separate use."
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