BLACKWELL AND ANOTHER
v.
BLACKWELL AND OTHERS.
Lord Buckmaster,
MY LORDS,
The Lord Chancellor desires me to say that he agrees with this
judgment that I am about to read.
My Lords, the question raised on this appeal is one which in
various forms has for over two hundred years been the subject of
vexed controversy. It may be stated by asking to what extent is it
possible to give effect to testamentary intentions that are at variance
with the provisions first of the Statute of Frauds and later of the
Wills Act. That some deviation from the strict letter of these
statutes has been permitted and has now become settled law is not
disputed.
If a testator in his will makes a gift to a named legatee who
at the time of making the will has promised he will hold the benefit
of the gift for certain defined and lawful purposes, the Court will
enforce against the legatee the trust in promised obedience to which
he received the gift. (McCormick v. Grogan, 4 E. & I. Appeals
82.)
This, however, does not directly govern the present case as the
following facts will show. The Testator at the time of his death
had a son of 16 years, the child of a woman, also living, who was
not his wife. He was ill for many weeks before he died and was
much concerned as to how he should make provision for this
woman and her child without disclosing all the circumstances in
his will.
He expressed this view to the Respondents Barnett and Wettern,
who were his personal friends, and they agreed to act as trustees.
What took place between them is best described in the words of
Mr. Barnett, who said : ” He was urgently desirous of effecting at
” once, or as soon as possible, what he had talked about to me for
” the preceding two years or so. He mentioned the two beneficiaries,
” the mother and the son, and the sum of £12,000, and he also
” mentioned that it was his desire, if we would accept service, for
” my friend Wettern and myself, Mark Oliver, and Harrison, to
” act as Trustees in a secret trust which he had proposed to effect,
” the legal side of which would be carried out by Mr. Percy Cowley
” of the Isle of Man. I agreed to act as a trustee.”
The testator, therefore, caused the Respondent, W. P. Cowley,
who had for some time acted as his solicitor, to be summoned. He
arrived on the 13th February and saw the Testator alone, who gave
him instructions to the above effect.
These instructions he incorporated in a fourth codicil to the
will. At his instance a Mr. Oliver was added to the trustees, and
the codicil was then signed. It is in the following terms :-
THIS IS A CODICIL to the last Will of me, JOHN
DUNCAN BLACKWELL. I GIVE AND BEQUEATH
to my friends, Mark Oliver, Arthur Ernest Harrison, Fred
Wettern, Edward Watson Barnett, and William Percy Cowley
the sum of Twelve thousand pounds free of all duties UPON
TRUST to invest the same as they in their uncontrolled dis-
cretion shall think fit and to apply the income and interest
arising therefrom yearly and every year for the purposes in-
dicated by me to them with full power at any time to pay
3-13 A
2 [2]
over the capital sum of Eight thousand pounds to such person
or persons indicated by me as they think fit, and to pay the
balance of Four thousand pounds to my trustees as part of
my residuary estate, and upon the same trusts as are declared
in my Will and previous codicils.
Mr. Cowley then made a memorandum of the terms of the trust
which has been accepted by Eve J. and the Court of Appeal as
accurate. It is as follows :—
“Re Mr. J. D. BLACKWELL.—MEMORANDUM of
” Verbal Instructions given to me at execution of Codicil
” 13/2/25. INCOME of £12,000 to be paid to Mrs. Edith
” Burrows, 4, Wilbury Crescent, Hove, Sussex, or applied at
” discretion of Trustees for benefit of herself and her son,
” Dennis Burrows. At any time Trustees may pay over £8,000
” of capital either to her or Dennis Burrows or both of them.
” In such event £4,000 is to go back to Testator’s Trustees on
” same trusts as his residuary estate.- W. PERCY COWLEY.”
The Testator died on the 3rd June, 1925, and his will and four
codicils were duly proved. The named trustees in the fourth
codicil are ready and willing to carry out the trust evidenced by
the memorandum, but the testator’s widow and her son object that
the trusts fail and contend that the trustees hold the £12,000 as
part of the residue. It is first argued that Mr. Cowley’s memory
is faulty so that his recollection cannot be accepted as to the actual
terms of the trust, and further that if the terms in the memorandum
are the true record, they are too vague to be enforced.
It is, in my opinion, unnecessary to add anything on these points
to the judgment of Eve J. and the Court of Appeal. There can be
no reasonable doubt about the accuracy of the memorandum, and
none about its efficacy if it can be admitted in evidence.
The real difficulty lies in considering whether the fact that in
the will itself it is made plain that the gift is fiduciary destroys
the principle upon which verbal evidence has been admitted to
show the nature of a gift purporting to be absolute and beneficial.
The argument in favour of the appellants on this point cannot
be put more forcibly than in Lewin on Trusts, 10th Ed., p. 65,
and its strength lies in this—that while in a beneficial gift!
the imposition of a trust does not contradict the terms of
the will but merely adds to them, where the gift is made on
trust and no beneficiaries are specified the trust operates either for
the residuary legatees or the next of kin and heir at law, so that
the admission of verbal evidence showing the trusts contradicts the
will. It must be observed, however, that this reasoning in strictness
applies to a case where land is devised to trustees on trust and
nothing more is said so that on the will there is a complete trust
for the heir at law, but that is not the case here where the intention
to benefit persons outside the will is manifest, and further a will
is in fact contradicted when a gift complete made to a beneficiary
without the hint of a trust is converted into a fiduciary gift for the
benefit of some one never mentioned in the will. It is also urged that
the underlying principle admitting extraneous evidence is that the
legatee cannot profit by his own fraud, a principle that does not
apply where, on the face of the will, his interest is fiduciary.
This principle is easily understood and may be also stated by
saying that he cannot defraud beneficiaries for whom he has con-
sented to act by keeping the money for himself. Apart, however,
from the personal benefit accruing to the trustee, the real bene-
ficiaries are equally defrauded in both cases, and the faith on which
the testator relied is equally betrayed. Further, if the trustee
was the heir or one of the next of kin or a residuary legatee, the
[3] 3
fraud would be just the same. The Counsel for the appellants
seemed at one time to argue that in such a case and to such an
extent as to defeat the beneficial interest of the trustee the outside
evidence might be admitted, but it is difficult to Bee on what
principle of reasoning the evidence can be admitted in the one
case and rejected in the other, when in both cases the, fact of the
trust appears in the will itself. Again, in the case where no
trusts are mentioned the legatee might defeat the whole purpose
by renouncing the legacy and the breach of trust would not in that
case ensure to his own benefit, but I entertain no doubt that
the Court, having once admitted the evidence of the trust, would
interfere to prevent its defeat. If this be so the personal benefit
of the legatee cannot be the sole determining factor in considering
the admissibility of the evidence.
It is, I think, more accurate to say that a testator having been
induced to make a gift on trust in his will in reliance on the clear
promise by the trustee that such trust will be executed in favour of
certain named persons, the trustee is not at liberty to suppress the
evidence of the trust and thus destroy the whole object of its
creation, in fraud of the beneficiaries.
I now turn to the authorities to ascertain how far this ques-
tion has been the subject of decision. These authorities are of
ancient lineage and the first striking fact is that in no single in-
stance has any case been quoted that in terms supports- the
appellants’ view, but there are numerous cases—some of long
standing—against their contention.
The strongest statement in their favour is to be found in
McCormick v. Grogan, 4 E. & 1. Ap. p. 83, where Lord Hatherley
said:—
” But this doctrine evidently requires to be carefully
” restricted within proper limits. It is in itself a doctrine
” which involves a wide departure from the policy which in-
” duced the Legislature to pass the Statute of Frauds, and it
” is only in clear cases of fraud that this doctrine has been
” applied—cases in which the Court has been persuaded that
” there has been a fraudulent inducement held out on the
” part of the apparent beneficiary in order to lead the testator
” to confide to him the duty which he so undertook to perform.”
In that case, however, the present point was not argued and as
pointed out by Hall, V.-C., in the later case of re Fleetwood 15 C. D.
the earlier authorities were not cited.
In the first case of Crook v. Brooking (2 Vernon, p. 98), decided
by Lord Chancellor Jeffreys in 1688, the testator devised £1,500 to
two people, Simon and Joseph, to be disposed of by them
on a secret trust that he had revealed to Simon. Simon,
who knew the trusts, after the death of the testator
revealed them to Joseph, the trusts being that, if the
testator’s daughter died in the lifetime of her husband, the £1,500
should go to the children of another daughter as the first daughter
should direct. The first daughter did die in her husband’s lifetime
and the children of the second daughter claimed as beneficiaries
under the verbal trust. This is a perfectly clear case of a trust
being revealed upon the face of the will, the terms of which were
communicated to one of the executors. It was held that the trust
was well and sufficiently declared, although the actual method of
distribution among the beneficiaries was uncertain. The Lords
Commissioners approved this decision, as is found in the Report
page 107.
In Pring v. Pring (2 Vernon, p. 50) in the following year a man
gave properties to his executors, directed that they should be sold in
trust and the testator’s wife brought a bill declaring that the trust
4 [4]
was in her favour. It was decided that, as the will had declared
that the executors are only in trust and not declaring for whom,
the person may be averred and the wife’s claim was accordingly
admitted.
These cases were followed in Smith v. Attersoll (1 Russ, p. 266)
where again the gift was to executors in trust for purposes explained
outside the will, and to the same effect was Podmore v. Gunning
(7 Simon, 644), though in that case the outside trust was not proved.
These cases are before the Wills Act, but the principle applicable
is the same, as wills were, by the Statute of Frauds, obliged to be
in writing though if of personalty an attested signature was not
required. After the Wills Act the cases proceed in the same
channel.
In the case of Johnson v. Ball (5 D.J. & S., p. 85), a testator
determined to settle upon his mistress and illegitimate children a
policy of insurance for £2,000, and by his will of the 21st February,
1844, he gave to two named trustees a policy to hold the same upon
the uses appointed by letter ” signed by them and myself ” and he
signed a declaration of the trusts by a subsequent document dated
4th August, 1845. The Vice-chancellor held that the trusts could
not be carried out but the reasons for his judgment are most in-
structive. The learned judge points out that the letter referred to
in the will had no existence at the time when the will was made
and that, supposing it referred to a letter afterwards signed, it is
impossible to give effect to it as a declaration of the trusts since
it would admit the document as part of the will and it was un-
attested. The learned Vice-Chancellor adds:-
” Cases in which there is no trust appearing on the will
” and where the Court establishes a trust on the confession of
” the legatee have no application to the present nor, as it
” appears to me, have those cases cited in argument in which
” the will refers to a trust created by the testator by com-
” munication with the legatee antecedently to or contempo-
” raucously with the will.”
It is clear, therefore, that this authority does not affect the present
case and it points to a case where the actual trusts were left over
after the date of the will to be subsequently determined by the
testator. It does not even cover the case where the trusts being
already determined, they were subsequently communicated.
I omit the detailed examination of other cases for they are all
carefully considered and dealt with by Hall, V-C., in the case of
In re Fleetwood (15 Chancery Division; 594), an authority which
indisputably covers the present case if it be accurately decided. In
that case the testatrix left to a named person all her personalty,
” to be applied as I have requested him to do.” The request was
made out and the named trustee jotted down in the presence of
the testatrix the names of the persons and the amounts which the
testatrix desired to give and, after this, the codicil was executed.
The point raised was the same as in the present case, viz., that when
the trusteeship appears upon the instrument the trust must be for
the next-of-kin or residuary legatees and that the Wills Act pre-
vented effect being given to a trust to be effected by parol evidence.
The learned Vice-Chancellor went through all the cases, including
The case of McCormick v. Grogan, and decided that the trusts
should be executed. That decision has never been definitely disap-
proved in any decided case for the statements in Le Page v.
Gardom 84 L.J. Ch. p. 749 and In re Gardner 1920, 2 Ch. are mere
dicta in cases where the point raised here was not material, and,
in my opinion, it was in fact followed in In re Huxtable
in. 1902, 2 Chancery, p. 793. In that case a testatrix
bequeathed a sum of £4,000 ” for the charitable purposes
[5] 5
agreed upon between us.” The .testatrix had, in fact, verbally
communicated to the legatee her intention to leave him the sum
of £4,000, the income of which he was to apply during his life for
the relief of sick and necessitous persons being members of the
Church of England and that he was to dispose of the principal as
his own property. Mr. Justice Far we 11 admitted the evidence,
including that which conferred upon the trustee power of disposing
of the principal after his death. The Court of Appeal held that
the evidence was admissible as to the trusts of the £4,000 which
upon the face of the will, was wholly given for charitable purposes
but was not admissible for the purpose of providing for the £4,000
after the death of the trustee, since the will had given the whole
£4,000 and such evidence would contradict the will. All the
learned Lords Justices agreed that the affidavit of the trustee was
admissible for the purpose of showing what were the charitable
purposes but for no further purpose. There is nothing in the
judgments that shows that this decision was affected by the fact
that the gift was a charitable gift, nor on principle can I see that
such distinction could be maintained for, if a general charitable
purpose only were disclosed by the will, a scheme might be prepared
for carrying it into effect and unless evidence were admitted the
testatrix’s specific instructions could have been disregarded; but
they were not, they were distinctly carried out.
I agree with the Court of Appeal in thinking that this also is
an authority in support of the doctrine laid down in In re Fleetwood.
In these circumstances, even if the antecedent decisions had been
less definite, it would require a very clear conviction that In re
Fleetwood was wrongly decided to render it right and proper that
it should now be over-ruled. The case of Bourne and another v.
Keane and others (L.R., A.C., 1919, 815), was referred to for the
purpose of showing that this House had over-ruled an authority of
West v. Shuttleworth which declared a gift of money for the purpose
of saying Masses to be illegal notwithstanding the fact that it had
remained for seventy years. The circumstances were however
entirely different from those in the present case, for the effect of that
decision was to place a fetter upon the disposition of estate and
there is a great difference between removing a restriction which
ought never to have been imposed and curtailing a liberty which has
been long enjoyed. It is impossible to know the extent to which
during the period of nearly fifty years the decision in In re
Fleetwood has been used by people similarly circumstanced to
the testator in this case and, in these circumstances, it would not be
right in the absence of very special circumstances after this lapse of
time to declare that such dispositions were bad.
In my opinion, however. In re Fleetwood was not wrongly
decided. It was decided in accordance with the series of authori-
ties by which the law was established and which it is now too late
to question or to over-rule.
Lord
Buck-
master.
BLACKWELL AND ANOTHER
v
BLACKWELL AND OTHERS.
Viscount Sumner.
MY LORDS,
I am satisfied that In re Fleetwood, which is not distinguishable
from the present case on the facts, was affirmed by the Court of
Appeal in In re Huxtable and that professional opinion generally
has accepted these decisions as correct. In argument, however,
counsel for the Appellants treated it as almost self-evident that
they conflicted with Section 9 of the Wills Act, and counsel for
the Respondents, while making no admission, elected to rely mainly
on the time that has passed and the probable volume of rights that
have arisen, since these cases were decided, and in consequence
of them. I do not think that this question ought to turn merely
on the dates of the decisions and the extent of their adoption in
practice. It is a grave thing to affirm a doctrine that violates
the prescriptions of a statute and especially such a statute as the
Wills Act, even though the error is of long standing. In view
of this, and also in deference to the reservations of opinion
expressed by Lords Dunedin and Parker of Waddington in Lepage
v. Gardom (84 L.J. Ch. p. 749) and Lord Warrington of Clyffe
in Gardner’s Case (1920, 2 Ch. p. 532) I venture to examine this
aspect of the matter.
In itself the doctrine of equity, by which parol evidence is
admissible to prove what is called ” fraud ” in connexion with secret
trusts, and effect is given to such trusts when established, would
not seem to conflict with any of the Acts under which from time
to time the Legislature has regulated the right of testamentary
disposition. A Court of conscience finds a man in the position of
an absolute legal owner of a sum of money, which has been
bequeathed to him under a valid will, and it declares that, on proof
of certain facts relating to the motives and actions of the testator,
it will not allow the legal owner to exercise his legal right to do
what he will with his own. This seems to be a perfectly normal
exercise of general equitable jurisdiction. The facts commonly but
not necessarily involve some immoral and selfish conduct on the
part of the legal owner. The necessary elements, on which the
question turns are intention, communication, and acquiescence. The
testator intends his absolute gift to be employed as he and not as
the donee desires; he tells the proposed donee of this intention and,
either by express promise or by the tacit promise, which is
signified by acquiescence, the proposed donee encourages him to
bequeath the money in the faith that his intentions will be carried
out. The special circumstance, that the gift is by bequest, only
makes this rule a special case of the exercise of a general jurisdic-
tion, but in its application to a bequest the doctrine must in
principle rest on the assumption that the will has first operated
according to its terms. It is because there is no one, to whom the
law can give relief in the premises, that relief, if any, must be
sought in equity. So far, and in the bare case of a legacy absolute
on the face of it, I do not see how the statute-law relating to the
form of a valid will is concerned at all, and the expressions in
which the doctrine has been habitually described seem to bear this
out. For the prevention of fraud equity fastens on the conscience
of the legatee a trust, a trust, that is, which otherwise would be
inoperative; in other words it makes him do what the will in itself
has nothing to do with; it lets him take what the will gives him and:
then makes him apply it, as the Court of conscience directs, and
[7] 2
it does so in order to give effect to wishes of the testator, which
would not otherwise be effectual.
To this two circumstances must be added to bring the present
case to the test of the general doctrine, first, that the will states
on its face that the legacy is given on trust but does not state what
the trusts are, and further contains a residuary bequest, and,
second, that the legatees are acting with perfect honesty, seek no
advantage to themselves, and only desire, if the Court will permit
them, to do what in other circumstances the Court would have
fastened it on their conscience to perform.
Since the current of decisions down to In re Fleetwood and In re
Huxtable has established that the principles of equity apply equally
when these circumstances are present as in cases where they are
not, the material question is whether and how the Wills Act affects
this case. It seems to me that, apart from legislation, the appli-
cation of the principle of equity, which was made in Fleetwood’s
and Huxtable’s cases, was logical and was justified by the same con-
siderations as in the cases of fraud and absolute gifts. Why should
equity forbid an honest trustee to give effect to his promise, made
to a deceased testator, and compel him to pay another legatee,
about whom it is quite certain that the testator did not mean
to make him the object of this bounty ? In both cases the testator’s
wishes are incompletely expressed in his will. Why should equity,
over a mere matter of words, give effect to them in one case and
frustrate them in the other? No doubt the words ” in trust ” pre-
vent the legatee from taking beneficially, whether they have simply
been declared in conversation or written in the will, but the fraud,
when the trustee, so called in the will, is also the residuary legatee,
is the same as when he is only declared a trustee by word of mouth
accepted by him. I recoil from interfering with decisions of long
standing which reject this anomaly unless constrained by statute.
The answer is put in the phrase, ” this is making the testator’s
will for him,” instead, that is, of limiting him to the will made
in statutory form. What then of the legislation? Great author-
ities seem to have expressed an opinion, that this equitable
principle, as a whole, conflicts with Section 9 of the Wills Act.
Lord Cairns in 1868 says that when a devisee seeks to apply what
has been devised to him otherwise than in accordance with the
testator’s intentions, communicated by him and1 accepted,
” it is in effect a case of trust and the Court will not allow the devisee
” to set up the Statute of Frauds—or rather the Statute of Wills—but in this
” the Court does not violate the spirit of the Statute but for the prevention
” of frauds it engrafts the trusts on the devise, by admitting evidence,
” which the ‘Statute would in terms exclude, in order to prevent the devisee
” from applying property to a purpose foreign to that, for which he under-
” took to hold it.”—(Jones v. Badeley; 3 Ch. App. at p. 363.).
In the following year in McCormick v. Grogan (L.R. 4.E. & I.
App. p. 82) Lord Hatherley (p. 88) says that this doctrine, that
equity interferes to prevent a breach of an undertaking given to a
testator, ” is in itself a doctrine involving a wide departure from
” legislative policy in the Statute of Frauds,” but is established
with reference to the jurisdiction of Courts of Equity to interpose
in all cases of fraud, and Lord Westbury (p. 97) says :
” it is a jurisdiction by which a Court of Equity, proceeding on the
“ ground of fraud, converts the party who has committed it into a trustee
” for the party who is injured by that fraud. The Court of Equity has
” from a very early period decided that even an Act of Parliament shall
” not be used as an instrument of fraud, and if, in the machinery of per-
” petrating a fraud, an Act of Parliament intervenes, the Court of Equity
” does not avoid the Act of Parliament but it fastens on the individual,
” who gets a title under that Act, and imposes on him a personal obliga-
” tion because he applies the Act as an instrument for accomplishing a fraud.
” In this way the Court of Equity has dealt with the Statute of Frauds
” and in this manner it deals with the Statute of Wills.”
3 [8]
My Lords, I venture to think that when, on the strength of these or
similar general statements of the doctrine, it has been said that in
this connexion equity has ” given the go-by ” to the Wills Act (In
re Pitt-Rivers 1902 1 Ch. 403), less than justice has been done
to equity and these great masters of it. When Lord Cairns speaks
of equity not letting the devisee, set up the statute it would seem
that a fortiori equity would not set up the statute for itself to
prevent the devisee from doing what it would have, itself compelled
him to do, if he had been negligent or dishonest in his trust, and
when he speaks, in a figure, of ” engrafting ” the trusts on the
devise surely he is saying in condensed words, that evidence, which
could not be admitted to fill in what the testator’s will leaves out,
may yet be admissible to inform the Court what duty, onerous or
not”, it must bind on the conscience of the devisee, taking him as
being with regard to legal title such a devisee as the will has made
him according to its terms. This exactly conforms to Lord West-
bury s phrases ” converts ” into a trustee one, who was not such
under the will, and ” imposes a personal obligation” on an
individual, who under the Wills Act would get a title, not in itself
so fettered.
In the authorities it has been common to classify these cases
according as the terms of the will make the gift in question absolute
or fiduciary. If it is by force of the words of the will that the
residuary legatee takes, what is given in trust without any specifi-
cation of the trust, then parol evidence to show what that trust
is would contradict the written will. Accordingly the crucial
point is whether or not it is the will itself that gives this
fund to the residuary legatee in such a case. Now Section 9
of the Wills Act prescribes the form, in which any disposition
in a will must be testified, if it is to be valid, but it does
not deal with the construction of wills, or the application of
the general law of trusts to interests created by wills. It is one
thing to say that in itself the trust cannot be given effect to, not
being expressed in the will, hut it is quite another to say that, when
for this reason the trust fails, the will gives the fund to the legatee
in trust for the residuary legatee, as if the document, signed and
witnessed, had said so in words. The question appears to be
whether the resulting trust in favour of the named residuary
legatee in such a case arises as part of the will or only as the result
of the application of equitable doctrines to a portion of the
testator’s estate, which in the circumstances of the will has not
been consistently disposed of.
The Wills Act is an amending Act, of which it may be said in
no merely theoretical sense that the Legislature was acquainted
with the existing state of the law, as enacted and decided, to which
it proceeded to apply amendments, for two Royal Commissions—the
Real Property Commission of 1828 and the Ecclesiastical Com-
mission of 1830—after enquiring inter alia into the subject of wills
of real and personal property had reported before the Wills Act
came before Parliament as a Bill. The extent to which parol
evidence was admissible under existing practice for various pur-
poses and the evils thereout arising were known. The equitable
doctrine which is now before your Lordships was on record ever
since Pring v. Pring. In Smith v. Attersoll, 1826 (1 Russell 266)
it had been contended, as the Appellants contend now, that the
admission of evidence dehors the will was forbidden by statute,
and its admission against the trustees to show the terms of
their trust was supported by the Master of the Rolls on the
doctrine of Jones v. Nabbe (Gilbert’s Equity Reports 146), that
the Statute of Frauds was an Act to prevent frauds and perjuries,
and that, where no question of fraud or perjury arose since the trus-
tees admitted their trust, evidence could be referred to. The Wills
Act made no attempt to correct this quaint way of regarding a
[9] 4
Statute. So far as Section 9 is concerned it simply increased and
denned the formalities already required by law. Similarly there had
long been litigation between executors and next of kin on the ques-
tion how far a specific bequest to an executor adeemed his general
right to take surplus personalty undisposed of, and on this
intricate conflicts of evidence frequently took place and a separate
statute, 11 Geo. IV and 1 William IV c. 40, had been passed to cover
it by expressly providing how such surplus should go. No similar
remedy is attempted by the Statute of Wills for the mischiefs that
might arise from admitting evidence in a case like the present.
Accordingly I think the conclusion is confirmed, which the frame
of Section 9 of the Wills Act seems to me to carry on its face, that
the legislation did not purport to interfere with the exercise of a
general equitable jurisdiction, even in connexion with secret dis-
positions of a testator, except in so far. as reinforcement of
the formalities required for a valid will might indirectly limit it.
The effect, therefore, of a bequest being made in terms on trust,
without any statement in the will to show what the trust is, remains
to be decided by the law as laid down by the Courts before and
since the Act and does not depend on the Act itself.
The limits, beyond which the rules as to unspecified trusts must
not be carried, have often been discussed. A testator cannot
reserve to himself a power of making future unwitnessed disposi-
tions by merely naming a trustee and leaving the purposes of the
trust to be supplied afterwards, nor can a legatee give testamentary
validity to an unexecuted codicil by accepting an indefinite trust,
never communicated to him in the testator’s lifetime (Johnson v.
Ball, 5 de G & S 85; re Boyes, 26 Ch. D. 531; Riordan v. Banon,
10 Irish Eq. Rep. 469; re Hetley, 1902 2 Ch. D. 66). To hold other-
wise would be to enable the testator to ” give the go-by ” to the
requirements of the Wills Act, because he did not choose to comply
with them. It is communication of the purpose to the legatee-,
coupled with acquiescence or promise on his part, that removes
the matter from the provision of the Wills Act and brings it within
the law of trusts, as applied in this instance to trustees, who
happen also to be legatees. If I am right in thinking that there
is no contradiction of the Wills Act in applying the same rule,
whether the trustee is or is not so described in the will, and the
whole topic is detached from the enforcement of the Wills Act
itself, then, whether the decisions in equity are or are not open to
doubt in themselves, I think that, in view of the subject matter
of these decisions and the length of time during which they have
been acquiesced in, your Lordships may well in accordance with
precedent refuse to overrule them lest titles should be rendered
insecure and settlements, entered into in reliance on their
authority, should now be disturbed. It is to be remembered
that the rule as to trusts not expressed in a will is not
limited to relations such as the testator in this case was
concerned to provide for, but may have been applied in many other
connexions. I pretend to no means of knowledge of my own but it
seems to me probable that effect has been given to these cases to a
substantial extent and therefore that, to avoid possible injustice,
your Lordships should refuse to interfere with them now. Accord-
ingly in my “opinion the appeal fails on all grounds.
3813 B
BLACK WELL
v.
BLACKWELL
Lord Warrington of Clyffe.
MY LORDS,
The testator John Duncan Louis Blackwell on the 13th February
1925 made a fourth codicil to his will in the following terms so far
as it is material to the question raised by this Appeal :—” I give
” and bequeath to my friends Mark Oliver, Arthur Ernest
” Harrison, Fred Wettern, Edward Watson Barnett, and William
” Percy Cowley the sum of £12,000 free of all duties upon trust to
” invest the same as they in their uncontrolled discretion shall think
” fit and to apply the income and interest arising therefrom yearly
” and every year for the purpose indicated by me to them with full
” power at any time to pay over the capital sum of £8,000 to such
” person or persons indicated by me as they think fit and to pay the
” balance of £4,000 to my trustees as part of my residuary Estate
” and upon the same trusts as are declared in my will and previous
” codicils.”
The testator died on the 3rd June, 1925.
As to the facts it is only necessary to state that the evidence if
admissible established First the names of the persons intended to be
benefited and the purposes for which the capital and income of the
fund were to be applied and Secondly that all the five trustees—four
of them before and one after the execution of the codicil—accepted
the trust and either expressly or by necessary implication promised
the testator to carry it into effect.
It has long been settled that if a gift be made to a person or
persons in terms absolutely but in fact upon a trust communicated
to the legatee and accepted by him the legatee would be bound to
give effect to the trust, on the principle that the gift may be pre
sumed to have been made on the faith of his acceptance of the trust,
and a refusal after the death of the testator to give effect to it would
be a fraud on the part of the legatee. Of course in these cases the
trust is proved by parol evidence and such evidence is clearly
admissible.
It is also settled that in such cases it is immaterial whether the
trust is communicated and accepted before or after the Execution of
the will, inasmuch as in the latter case the testator, if it had not
been accepted, might have revoked the will.
Further in Moss v. Cooper (5 and H 367), Wood V. C. said ” If
” on the faith of a promise by A a gift is made in favour of A and
” B the promise is fastened on to the gift for both for B cannot
” profit by A’s fraud.”
I think the principle on which this doctrine is founded is that
the parol evidence is not adduced for the purpose of altering or
affecting the will itself, the legatee still takes under the will, but is
under a personal obligation the breach of which would be a fraud
on the testator (Cullen v. The A. G. for Ireland L.R., 1 E. & I.
190).
The question is whether the same principle applies where as in
the present case the fact that the gift is upon trust is mentioned in
the will though the terms of the trust can only be established by
parol.
Eve J. and the Court of Appeal (The Master of the Rolls and
Lawrence and Russell L.JJ.) have answered the question in the
affirmative, basing their decisions on the judgment of Hall V. C.
[11] 2
in re Fleetwood 15 Ch. D. 694, the Court of Appeal also expressing
the view that that judgment was followed by the Court of Appeal in
re Huxtable 1902 2 Ch. 793.
I confess to having felt considerable doubt during the argument
whether to apply the principle in such a case as the present would
not be to give validity to a parol will in spite of the provisions
first of the Statute of Frauds and secondly of the Wills Act. Sub-
sequent reflexion however and a careful perusal of the judgment of
Hall V. C. in re Fleetwood (u.s.) wherein the earlier authorities
under both statutes are cited and discussed have satisfied me that
that case and, in consequence, the present case in the Courts below
were rightly decided. I think the solution is to be found by bearing
in mind that what is enforced is not a trust imposed by the will, but
one arising from the acceptance by the legatee of a trust, communi-
cated to him by the testator, on the faith of which acceptance the
will was made or left unrevoked as the case might be. If the
evidence had merely established who were the persons and what
were the purposes indicated it would in my opinion have been in-
admissible, as to admit it would be to allow the making of a will by
parol. It is the fact of the acceptance of the personal obligation
which is the essential feature, and the rest of the evidence is merely
for the purpose of ascertaining the nature of that obligation.
It was contended for the Appellant, who claims as Residuary
Legatee to be entitled to the fund should the trust not be estab-
lished, that the fraud for the avoidance of which the trust is en-
forced must be the personal fraud of the legatee, but I think the
answer is that, if it would be a fraud on the part of the legatees to
refuse to carry out the trust, the residuary legatees cannot take
advantage of and thus make themselves parties to such fraud. On
this point I agree with the view expressed by Wood V. C. in Moss
v. Cooper u.s. and by Hall V. C. in re Fleetwood u.s.
The authorities prior to re Fleetwood u.s. some of them dating
as far back as 1688 and 1689 were carefully analysed by Hall V. C.
in his judgment and I see no necessity for referring to them again.
They were conflicting and it was quite open to the learned judge to
follow those which supported his own view. I think also that) re
Unstable 1902 2 Ch. 793 could not have been decided as it was
unless the Court had approved of the decision in re Fleetwood.
For these reasons I think that this appeal should be dismissed
with costs.
Lord Buckmaster:
MY LORDS,
My noble and learned friend Lord Carson desires me to say
that he agrees with the views that already have been expressed.
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