PART I. Div. I. CHAPTER I. SECT. 1. Lands in colo states, not within the statute. another point, and the opinion was therefore clearly extrajudicial; moreover the circumstances seem only to warrant the application of those expressions to a customary devise by parol; and at the most they only authorize the raising of a trust by verbal declaration, which, as we have already seen, may still be done, notwithstanding the statute. Both copyholds and customary freeholds, if not within the words, are certainly within the spirit of the 7th sect.; and no objection arising from the tenure of such property can in this case be urged in favour of their being exempted from its operation; an exemption which, even in the case of the 5th and 6th sects., has been regarded with disapprobation by the courts (s). It may be observed that in the recent case of Benbow v. Townshend (t), in which the question arose of the validity of a parol declaration of trust of a mortgage of copyholds, the exemption of property of that tenure from the operation of the 7th sect. was not attempted to be urged on behalf of the party claiming under the trust; and the case throughout proceeded, as if there was no difference in that respect between copyholds and freeholds. It has been decided, that the Statute of Frauds applies only to such nies, or foreign English colonies as were founded at the time when the act was passed (u). Those colonies which have been established subsequently, are not bound by that or any other English act of parliament in which they are not named; unless, indeed, its adoption may have been sanctioned by their own legislature (x) *; and the court in dealing with real estate in a foreign country will be guided by the law of evidence as prevailing in that country (y). It follows therefore, that the validity of a parol trust of property in a British colony or foreign state must depend upon the law of the country where the property is situated. The king not bound by the statute. It is settled that the sovereign is not bound by the Statute of Frauds, and on that ground parol evidence has been admitted, to prove a verbal trust of lands for superstitious uses in support of the king's title (z). But where it was attempted to apply the same principle to trusts for charitable purposes, and parol evidence was But charitable offered to prove such a trust, the court rejected the evidence, and decided, that trusts for charities were within the 7th sect (a). It may trusts are within it. * However, it has been decided, that real property of an Englishman in India did not pass by a will, attested by two witnesses, but descended to his heir at law. Gardiner v. Fell, 1 J. & W. 22. also be remarked here, that Lord Hardwicke's observations, as reported in the case of Adlington v. Cann, appear to throw considerable doubt on the correctness of the general rule, according to which the king has been held not to be bound by the statute. PART I. Div. I. CHAPTER I. SECT. 1. trusts. It has been seen, that, by the 8th sect., trusts arising or resulting Not resulting by the implication or construction of law, are expressly exempted from and implied the operation of the statute: and as trusts of that nature were disposable by a bare declaration by parol before the act, they must still be considered as on the same footing (b). in cases of A court of equity will not permit the Statute of Frauds to be set up Parol trusts of as a defence by a party infected with fraud; and parol trusts of real land established estate have frequently been established in direct contradiction to the fraud. statute on the ground of fraud. Thus where a person obtains a gift of property upon a parol assurance to the donor, that he will dispose of it either wholly or partially in a particular way; the court will compel the performance of such an engagement (c). But this is a subject which will be reserved more conveniently for discussion in a future chapter (d). SECT. 2.—What will be a valid Trust by Parol. trust. In order to fasten a trust on property of any description by means Nature of the of parol declarations, the expressions used must amount to a clear and expressions requisite for explicit declaration of trust. They must also point out with certainty raising a parol the subject-matter of the trust, and the person who is to take the beneficial interest. Loose and indefinite expressions, and such as indicate only an incomplete and executory intention, are insufficient for this purpose. Therefore where a mother had assented to a recommendation, made to her by a third person, to make a settlement upon her daughter, and had requested her adviser to give instructions to her solicitors to prepare a proper deed for the purpose, but afterwards refused to execute the deed; it was held, that the expression of the mother's inchoate intention to settle the property was not such a declaration of trust, as the court could act upon (e). But a declaration by a person on investing money on a mortgage, "that the security was to be made in the name of his brother Job, as he intended the mortgage to be for his benefit, and that it would then And in like manner a be his," has been considered sufficient (f). trust was decreed on a verbal declaration, that an investment of stock (b) Bellasis v. Compton, 2 Vern. 294; Benbow v. Townshend, 1 M. & K. 510. (c) Devenish v. Baines, Prec. Chan. 3; Walker v. Walker, 2 Atk. 98; Podmore v. Gunning, 7 Sim. 649; Hutchins v. Lee, 1 Atk. 447; Chamberlain v. Agar, 2 V. & B. 262; vide post, Pring v. Pring, 2 Vern. (d) Vide post, Div. II., Ch. II., Sect. 1. PART I. CHAPTER I. SECT. 2. They must be contempora gift. was in trust for four children equally (g). But in that case the parol expressions were supported by a contemporaneous written entry.* Where it is attempted to convert a primâ facie absolute gift into a trust by means of verbal declarations, the expressions must be used conneous with the temporaneously with, or in contemplation of, the act of disposition (h). And it must be remembered, that even in that case they will be inadmissible for the purpose of contradicting any written instrument (i). Since the statute 1 Vict. c. 26, no parol declaration can be made to take effect as a nuncupative will; but it has been decided that a donatio mortis causâ may be made to a trustee for a particular purpose (k). And such a gift does not seem to be affected by the late Will Act. No nuncupative will since 1 Vict. c. 26. Parol trust, once created, cannot be revoked. How to be proved. Not by evidence in contradiction to a written instrument. It is to be observed, that a trust, once effectually created by parol, cannot subsequently be extinguished revoked or altered by the party creating it, any more than a more formal assurance (1). The evidence of a person claiming the beneficial interest in property under a parol declaration, is inadmissible for the purpose of establishing the trust in his own favour; but there is no objection to the testimony of the creator of the trust, who has parted with the whole interest, nor à fortiori to that of the trustee himself (m). No evidence can be admitted, for the purpose of engrafting a parol trust upon an instrument, which purports to be an absolute gift (n), (excepting in cases of fraud or mistake) (o); however, it has been frequently decided, that a plaintiff is entitled to an answer to allegations contained in a bill, suggesting the existence of a parol trust in (g) Kilpin v. Kilpin, 1 M. & K, 520; (h) See Kilpin v. Kilpin, 1 M. & K. 537. (k) Blunt v. Burrow, 4 Bro. C. C. 75. (1) Kilpin v. Kilpin, 1 M. & K. 531, 539; Adlington v. Cann, 3 Atk. 151. 2, 3; Strode v. Winchester, 1 Dick. 397. (n) Irnham v. Child, 1 Bro. C. C. 92; Bartlett v. Pickersgill, 1 Ed. 515; Leman V. Whitley, 4 Russ. 423. (0) Irnham v. Child, 1 Bro. C. C. 92; Cripps v. Jee, 4 Bro. C. C. 472; Podmore V. Gunning, 7 Sim. 644, 665. As to voluntary trusts created by parol. * Where the transaction is altogether voluntary, a trust will not be enforced as against the donor upon a parol declaration, unless a complete executed trust be clearly proved. Therefore where a testatrix drew a cheque on her banker in favour of A., and verbally directed A. to apply it in making up a legacy she had given to B., to a certain value; and no communication on the subject was made to B. by the testatrix in her lifetime; Sir J. Wigram, V. C., refused to enforce the trust against the estate of the testatrix in favour of B., Hughes v. Stubbs, 1 Hare, 476; and see McFadden v. Jenkyns, Id. 438. There seems to have been no doubt however in that case, but that A. was a trustee for the testatrix and her representatives. The same doctrine applies alike to voluntary trusts, whether they are created by parol, or written declarations; and the reader is referred to a subsequent part of this work, where the law respecting voluntary trusts is more fully considered. PART I. Div. I. CHAPTER I. SECT. 2. such a case (p); and a general demurrer to a bill of that nature, will be overruled (q). But no relief will be given where the defendant denies by oath, in his answer, the trust alleged by the bill (r); except indeed in cases of fraud, which, if otherwise established, would warrant Except in cases the interference of the court under any circumstances (s). Where there is an absolute conveyance to a person, but under a secret trust for purposes which the law will not suffer to take effect, the donee will hold absolutely for his own benefit; unless he admit the trust by his answer, or it be otherwise established in evidence against him (2). of fraud, if proved. the Statute of With regard to what will be a sufficient written manifestation, or What sufficient proof of the creation of a trust, to satisfy the Statute of Frauds, we proof to satisfy have seen that the 7th sect. requires "a writing, signed by the party Frauds. legally entitled to declare the trust.” party. These words will be satisfied by a written document of any descrip- Any writing tion; and, accordingly, a bond to assign as cestui que trust shall signed by the direct (u), or a covenant to purchase and convey lands to specified uses (x), or a recital contained in a deed (y), as well as written statements, of a much looser and more informal description, such as those contained in a bill or answer (z) in Chancery, or even in notes or letters in the handwriting of the party (a), have been considered sufficient to take a parol trust out of the statute. But it must be borne in mind, that the same principles of construction will be applied to trusts proved by evidence of this description, as in other cases; and the objects and nature of the trust must always appear from such documents with sufficient certainty, as well as their connexion with the property in question (b). it By the express words of the statute, the required declaration may Or will. be made by will; but if the instrument containing such a declaration, by reason of some informality, could not be supported as a will, might nevertheless, if signed by the party, be a sufficient evidence of the creation of the trust, to take it out of the statute (c). The writing which is to furnish the evidence of the trust, must be By whom it signed by the party legally entitled to declare it. If it be not previous must be signed. (p) Muckleston v. Brown, 6 Ves. 52; Strickland v. Aldridge, 9 Ves. 516; Chamberlain v. Agar, 2 V. & B. 259; Newton v. Pelham, 1 Ed. 514, cited. (q) Muckleston v. Brown, 6 Ves. 52. (r) Fordyce v. Willis, 3 Bro. C. C. 576; Bartlett v. Pickersgill, 1 Ed. 515. (8) Strickland v. Aldridge, 6 Ves. 520; Podmore v. Gunning, 7 Sim. 665. (1) Cottington v. Fletcher, 2 Atk. 156. (u) Moorecroft v. Dowding, 2 P. Wms. 314. (x) Earl of Plymouth v. Hickman, 2 Vern. 167; Blake v. Blake, 2 Bro. P. C. 250. (y) Degg v. Degg, 2 P. Wms. 412. (z) Butler v. Portarlington, 1 Con. & Law. 15; S. C. 1 Dr. & W. 20; Hampton v. Spencer, 2 Vern. 288; Wilson v. Dent, 3 Sim. 385. (a) O'Hara v. O'Niel, 7 Bro. P. C. 227 ; Forster v. Hale, 3 Ves. 707; Crook v. Brooking, 2 Vern. 106; Morton v. Tewart, 2 N. C. C. 67. (b) Forster v. Hale, 3 Ves. 708. (c) Nab v. Nab, 10 Mod. 404; 1 Eq. Ca. Abr. 404, Pl. 3. PART I. Div. I. CHAPTER I. SECT. 2. Parol evidence received to prove a trust, where doubt created by written documents. to or contemporaneous with the act of disposition, the party, legally entitled to declare the trust, will be the trustee himself; for when a person has once devested himself of all interest in property, by an absolute conveyance, it is no longer competent for him, either by parol or written declaration, to convert the party taking under such a conveyance, into a trustee (d). It would be otherwise indeed, where the circumstances of the transaction were such, as to raise a resulting or implied trust upon the conveyance; in which case, the person entitled to such an interest, would clearly have the right at any time to declare the trust (e). Where there is any written evidence that the person apparently entitled is not really so, that will open the door to the admission of parol evidence to prove the trust, notwithstanding the statute. As where there are entries in the books of the grantee, of payments made by him to or on account of the grantor, which payments were inconsistent with the grantee's taking the beneficial interest (ƒ). (d) Adlington v. Cann, 3 Atk. 145. (f) Cripps v. Jee, 4 Bro. C. C. 472. |