Kekewich v. Manning. is settled that the court will not convert an imperfect gift into a trust. Holloway v. Headington, 8 Sim. 328; Dillon v. Coppin, 4 Myl. & Cr. 647; Antrobus v. Smith, 12 Ves. 39; Edwards v. Jones, 1 Myl. & Cr. 226. In Colyear v. Lady Mulgrave, 2 Keen, 81, referred to on the other side, the decision was against the voluntary deed. Ward v. Audland, 8 Beav. 201, is decisive against the appellant; Jefferies v. Jefferies, Cr. & P. 138. [The LORD JUSTICE KNIGHT BRUCE referred to Ellis v. Nimmo, Lloyd & G. C. t. Sug. 333, and asked if the argument was that the word "trust" or "confidence" must be used to create a trust.] In Meek v. Kettlewell, 1 Hare, 475, Vice-Chancellor Wigram said, "If the owner of property, having the legal interest in himself, were to execute an instrument by which he had declared himself a trustee for another, and had disclosed that instrument to the cestui que trust, and afterwards acted upon it, that might perhaps be sufficient." "Again, if the equitable owner of property, the legal interest of which was in a trustee, should execute a voluntary assignment of the property, and authorize the assignee to sue for and recover the property from that trustee, and the assignor should give notice to the trustee, and the trustee should accept the notice, and act upon it, by paying the dividends or interest of the trust property to the assignee during the life of the assignor, and with his consent, it might be dif ficult for the executor or administrator of the assignor afterwards to contend that the gift of the property was not perfect in equity. But such circumstances do not occur in the present case." The reasons assigned by Sir J. Wigram for his decision in the present case, are altogether unanswered by the arguments for the appellants. They are, among others, these: In a case in which there are no means of transferring the property in law, and there is an agreement to transfer, it is admitted that in the absence of consideration the court will not convert that voluntary agreement into a trust. Therefore, if the person having the property is called upon to transfer it, this court will not enforce the demand. Again, supposing the subject in dispute to be property which cannot be transferred at law by the act of the beneficial owner, and instead of there being an agreement to transfer, the transaction takes the form of an absolute assignment; still, if there be a want of consideration, and the deed of itself is inoperative as an assignment, then it is well settled that in the absence of consideration, this court does not distinguish the assignment in form from the agreement to assign. On the other hand if there be a consideration, it is immaterial whether it be an agreement or an assignment. With regard to the argument that where the parties could do more than they have done, there the court must consider that they have done sufficient to deprive themselves of all interest in the property, the case of Edwards v. Jones, 1 Myl. & Cr. 226, is as distinct an answer as any thing could possibly be to that argument. There the obligee of a bond, five days before his death, indorsed upon it that Kekewich v. Manning. which in form was an assignment, and parted with the possession of the bond to the person to whom he desired to transfer it. Nor can it be said that the trustee of the property, at the time when the settlement was made, was a party to it; for lady Farrington was not a party to the deed as a trustee, but as a party beneficially interested; and the whole scope of the instrument went to this, that she assigned her interest in the property when it should fall into possession to trustees to be held by them on certain trusts. If the mother and daughter had accepted the trusts, the transaction might, perhaps, be said to have been complete. [KNIGHT BRUCE, L. J., asked if the respondents' case could be supported consistently with Sloane v. Cadogan, Sug. V. & P. 11th ed. jun. 50, 1119; and Fortescue v. Barnett, 3 Myl. & K. 36.] Metcalfe. Those cases must be considered as, in effect, no longer binding authorities. Beatson v. Beatson, 12 Sim. 294; Colman v. Sarrell, 3 Bro. C. C. 12; 1 Ves. jun. 50; Meek v. Kettlewell, 1 Hare, 475; Edwards v. Jones, 1 Myl. & Cr. 226; Sugden, Vendors and Purchasers, p. 934, 11th ed. Rolt, in reply. Dec. 15. KNIGHT BRUCE, L. J. The present case has raised, necessarily or unnecessarily, a question which on several occasions, under different aspects, and in various circumstances, has been brought be fore this court, especially since the time of Lord Hardwicke, the question, namely, whether an act or intended act of bounty, whether a gift or a promised or intended gift, was in truth a perfect act, a completed gift, resting neither in promise merely, nor merely in unfulfilled intention; or was incomplete, was imperfect, and rested merely in promise or unfulfilled intention. Generally this question, when arising here, is very material. For as, upon one hand, it is, on legal and equitable principles we apprehend, clear that a person sui juris, acting freely, fairly, and with sufficient knowledge, ought to have and has it in his power to make, in a binding and effectual manner, a voluntary gift of any part of his property, whether capable or incapable of manual delivery, whether in possession or reversionary, and howsoever circumstanced, so, on the other, it is as clear generally, if not universally, that a gratui tously expressed intention, a promise merely voluntary, or to use a familiar phrase, nudum pactum, does not (the matter resting there) bind legally or equitably. I have been speaking of transactions without any sealed writing. But though it is true that in cases where such an intention, such a promise, is expressed in a deed, it may bind generally at law as a covenant by reason of the light in which the particular kind of instrument called a deed is regarded at law, yet in equity, where at least the covenantor is living, or where specific performance of such a covenant is sought, it stands scarcely, or not at all, on a better footing than if it were contained in an instrument unsealed. The rules and the distinction or distinctions between them are, Kekewich v. Manning. in theory, plain and simple enough, but are sometimes found to be of difficult application practically; nor, considering the position and circumstances, in many instances, of property, the administration of which, or the decision of the title to which, belongs to this jurisdiction, ought one to be surprised if he should find here occasionally a case so near the boundary line separating the two main classes, as to render it no light or easy task to say to which side of it the case belongs. Such instances have occurred not very unfrequently. To state, however, a simple case: Suppose stock or money to be legally vested in A, as a trustee for B, for life, and, subject to B.'s life interest, for C, absolutely; surely it must be competent to C, in B.'s life-time, with or without the consent of A, to make an effectual gift of C.'s interest to D, by way of mere bounty, leaving the legal interest and legal title unchanged and untouched. Surely it would not be consistent with natural equity or with reason or expediency to hold the contrary. C being sui juris, and acting freely, fairly, and with sufficient advice and knowledge. If so, can C do this better or more effectually than by executing an assingment to D? It may possibly be thought necessary to the complete validity of such a transaction, that notice should be given to A. Upon that we do not express an opinion. Suppose the case only varied by the fact that A and C are the trustees jointly instead of A being so alone? Does that make any substantial difference as to C.'s power, the mode of making the gift, or the effect of the act, C not severing nor affecting the legal joint tenancy? C would necessarily have notice. Possibly it may be thought material that A should have notice likewise, but upon that we avoid saying anything beyond referring to Meux v. Bell, 1 Hare, 73, and to Smith v. Smith, mentioned in Meux v. Bell. It is probably or certainly in some instances the course of this jurisdiction to decline acting at the suit of those whom it terms "volunteers," though within that description a person claiming directly, and merely, under a gratuitous promise, oral or not under seal, which is nudum pactum, may be thought perhaps hardly to come, for such a person has in effect had no promise at all. In effect no contract has been made with him. But whatever rule there may be against "volunteers" it does not apply to the case of one who, in the language of this court, is termed a cestui que trust, claiming against his trustee. For that which is considered by this jurisdiction a trust may certainly be created gratuitously. So that the absence of consideration for its creation is in general absolutely immaterial. To this doctrine Lord Eldon often referred. He did so especially in Ellison v. Ellison, 6 Ves. 656; Pulvetorft v. Pulvertoft, 18 Ves. 84, and Ex parte Pye, 18 Ves. 140. In which two latter cases his language is sufficient to correct any erroneous notion of his views that some part of his judgment in Ellison v. Ellison, narrowly construed, might possibly in some minds create. Ellison v. Ellison is among the valuable and instructive cases, various in kind and many in number, which we owe to the great learning, great carefulness, and great powers of that most distinguished With reference to the present litigation it is of the utmost man. Kekewich v. Manning. importance. The necessity of sparing time as much as reasonably possible, and the recollection that probably every member of this bar is familiar with the report, alone prevent me from reading it now throughout. Let the report however be considered as read and let it be particularly borne in mind that when Mr. Ellison executed the deed of 18th June, 1796, he had an equitable interest, and only an equitable interest in the property, wholly personal, but partly movable and partly immovable, which was the subject of the deed; that the legal interest became afterwards, and probably at his own request, vested in him by means of the indenture of 3d July, 1797, which seems not to have taken notice of the deed of 1796, but to have been just such an instrument as would have been proper if the deed of 1796 had never existed that the trustee of the property before, and independently of the deed of 1796, was the trustee of the deed of 1796, and the assignor of 1797-that whether this trustee, who had died before the suit, had notice of the deed of 1796 previously to his execution of the deed of 1797, or perhaps even in Mr. Ellison's lifetime, does not appear clearly, or does not appear at all, and that the deed of 1796 was after Mr. Ellison's death enforced against his residuary legatees; at the instance, I agree, of plaintiffs, of whom one was Mr. Ellison's executrix. The decision, however, seems not to have turned in any degree on that circumstance, but would, it is our clear impression, have been the same had the parties to the suit been reversed or had the eldest son been plaintiff alone. The ordering part of the decree which we have had extracted from the registrar's book is thus: "Whereupon, and upon debate of the matter, and hearing the deed of trust dated the 18th June, 1796 read, and what was alleged by the counsel on both sides, his lordship doth declare that the trusts of the said deed, bearing date 18th June, 1796, ought to be performed and carried into execution, and doth order and decree the same accordingly. And it is further ordered and decreed, that it be referred to Mr. Ord, one of the Masters of this court, to appoint a new trustee or trustees of the premises comprised in the said trust deed, and that the share of the said testator, Nathaniel Ellison, of, and in the said collieries, and the stock and effects belonging thereto comprised in the said deed, be assigned to such new trustee or trustees so to be appointed upon the trusts, and for the intents and purposes declared by the said deed concerning the same, and such new trustee or trustees is, or are, to declare the trusts thereof accordingly, and the said Master is to settle such assignment; and it is ordered that the said Master do tax all parties their costs of this suit, and that such costs, when taxed, be paid out of the estate of the said testator, and any of the parties are to be at liberty to apply to this court, as there shall be occasion." Some years afterwards occurred Pulvertoft v. Pulvertoft, and Ex parte Pye. In the former of these, Lord Eldon, after saying of Lord Thurlow, "I must take his opinion to have been, as I believe it was, that with a mere voluntary settlement this court has nothing to do," used this language: "The distinction is settled that in the case of a contract merely voluntary, (I do not speak of valuable or meritorious consideration,) this court will do nothing; but Kekewich v. Manning. if it does not rest in a voluntary agreement, but an actual trust is created, the court does take jurisdiction." And in Ex parte Pye, 18 Ves. 140, it is said by the same authority, "The other question involves not only the construction of the French law, and the point whether that has been sufficiently investigated, but further, whether the power of attorney amounts here to a declaration of trust. It is clear that this court will not assist a volunteer; yet if the act is completed, though voluntary, the court will act upon it. It has been decided, that upon an agreement to transfer stock, this court will not interpose; but if the party had declared himself to be the trustee of that stock, it becomes the property of the cestui que trust without more, and the court will act upon it." The case of Cadogan v. Sloane, Sugd. V. & P. 1119, 11th ed, (commonly called Sloane v. Cadogan,) the nature and effect of which, the whole profession knows, from a valuable note in one of Sir Edward Sugden's works, and which we have examined in the registrar's books, is a decision also of great weight. The plaintiff there was the widow and executrix of Mr. William Bromley Cadogan. The defendants were the surviving trustee of the original settlement of 1747, and the executors of Lord Cadogan, of whom that trustee was one. It does not, we believe, appear that in Cadogan v. Sloane, any point was, if any could have been, made, as to notice or the absence of notice, or as to the position of the legal title. It is observable, however, that Sir E. Sugden in arguing the cause said, "Here Mr. Cadogan did all he could, but that is not enough." Sir E. Sugden was certainly as unlikely as any man could be to omit any view or suggestion possibly favorable to the side on which he was counsel, though I think that I have heard him say that it was the first case that he ever argued in court, and there were other counsel of great considertion upon the same side. Perhaps Cadogan v. Sloane, could not have been decided as to the point of gift or trust, otherwise than it was, without contravening Ellison v. Ellison. In Antrobus v. Smith, 12 Ves. 39, which was near the time of Cadogan v. Sloane, but we think before it, there were very particular circumstances. The property seems to have been Scotch, and though probably the legal title might have been rightfully and effectually transferred or changed by Mr. Crawford at his pleasure, he seems not to have so acted, but seems to have retained it. Sir W. Grant, who appears to have dismissed the bill on the ground that Mr. Crawford was not, at his death, a trustee for Mr. or Mrs. Antrobus, upon the particular facts and in the particular circumstances of the case, did not, in our opinion, mean to do or to say anything of a nature with which that eminent judge's decision or language in Cadogan v. Sloane, was at variance. In our view Cadogan v. Sloane is entirely consistent with the decision in Antrobus v. Smith, but, if it is not, we think Cadogan v. Sloane the preferable and more correct decision-subject only to the question, if any, of notice. In an earlier case, Coleman v. Sarel, (of which the turpis contractus or turpis causa was sufficient to dispose,) the alleged donor George Davy had (as probably Mr. Crawford, in Antrobus v. Smith, had) the |