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A-G v Lady Downing
(1767) Wilm 1
Court: pre-SCJA 1873
Judgment Date: circa 1767
Cases referring to this case
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Treatment | Case Name | Citations | Court | Date | Signal |
Considered | Moggridge v Thackwell | (1803) 7 Ves 36, 32 ER 15, [1803-13] All ER Rep 754 | LC | circa 1803 |
Cases considered by this case
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Treatment | Case Name | Citations | Court | Date | Signal |
Considered | Jesus College, Oxford, Case | (1616) Duke 78, Hob 136 | pre-SC | circa 1616 |
Catchwords & Digest
TRUSTS - NATURE AND CREATION OF TRUSTS - CONSTRUCTIVE AND RESULTING TRUSTS - CONSTRUCTIVE TRUSTS - IN GENERAL - CONSTRUCTIVE TRUSTEES - FAILURE OF TRUSTEES - DISCLAIMER BY TRUSTEES
(1) The trust follows the legal estate wherever it goes, except it comes into the hands of a purchaser for a valuable consideration without notice (Wilmot CJ).
(2) The person who creates a trust means it should at all events be created. The individuals named as trustees are only the nominal instruments to execute that intention, and if they fail, either by death or being under disability to act, or refusing to act, the constitution has provided a trustee (Wilmot CJ).
TRUSTS - NATURE AND CREATION OF TRUSTS - EXPRESS TRUSTS - CONSTITUTION OF AN EXPRESS TRUST - CERTAINTY OF SUBJECT MATTER - WHETHER LEGAL ESTATE NECESSARY
(1) Trust estates do not depend upon the legal estate for an existence. A court of equity considers devises of trusts as distinct substantive devises, standing on their own basis, independent of the legal estate, or of one another; and the legal estate is nothing but the shadow which always follows the trust estate, in the eye of a court of equity (Wilmot CJ).
(2) Executory trusts fall under a very different consideration, for when the freehold is put into trustees, and the vacuum, which the law so much abhors, is thereby avoided, a trust to arise out of a remainder for a person not existing but who must exist within the compass of a life or lives in being, will be as good, and to be supported by a court of equity as much, as a trust for a person in esse; and therefore, suppose a remainder, limited to trustees and their heirs, in trust for the first son which A shall have and his heirs; the trust being in the mind and intention of testator for a person not then existing, but to exist, and where that existence must happen within the compass of a life or lives, would be clearly good. So in this case, testator does not only declare his intention to give to a person not in esse, but is actually giving directions for the creation of that person; and there is no difference between the cases, but that one is an executory trust for a natural person to be created and the other is for a political person to be created (Wilmot CJ).
