Die
Lunae, 28° Januarii, 1929.
Parliamentary
Archives,
HL/PO/JU/4/3/833
Lord
Chan
cellor.
Viscount
Sumner.
Lord
Buck-
master.
Lord
Carson.
Lord
Warring-
ton
of
Clyffe.
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
Chan-
cellor.
Viscount
Sumner.
Lord
Buck-
master.
Lord
Carson.
Lord
War-
rington of
Clyffe.
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
Lord
Chan-
cellor.
Viscount
Sumner.
Lord
Buck-
master.
Lord
Carson.
Lord
Warring-
ton
of
Clyffe.
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.
(3813) wt. 2272-01 12 P.st G
311
