318 HOUSE OF LORDS (1929) {HOUSE OF LORDS.} H. L. (E)* BLACKWELL anp ANOTHER . . . . APPELLANTS; — AND Jan, 24, BLACKWELL anp Orners . . . . . RESPONDENTS. Will—Codicil—Legacy on secret Trust—Detailed verbal Instructions by Testator to one of several Trustees—Writlen Memorandum on same Date as Brecution of Codicil—Knouledge and Acceplance of Trust by all Trustees— Admissibility of parol Evidence—Validity of Trust Legacy. A testator by a codicil to his will gave to five persons 12,0001. upon trust to invest the same as they should think fit, and apply the yearly income “ for the purposes indicated by me to them,” with power ‘to pay over the capital sum of 80001. “to such person or persons indicated by me to them” as thoy thought fit, and to pay the balance of 40001. to the trustees of his will to be held as part of his residuary estate. Detailed parol instructions for the codicil were given by the testator to C., one of the five trustees, and the object of the trust was known in outlino to and accepted by all the rest before the execution of the codicil. On the same day, soon after the execution of the codicil, C. wrote out and signed a memorandum of the instructions given to him to the effect (inter alia) that the interest of the 12,0001. was to be paid to ® lady, whose namo and full address were given, for the benefit of her and her son, whose full name followed. In an action by the widow of the testator and her son against the trustees and beneficiaries to test the validity of the trust legacy of 12,0001. :— Held, that parol evidence was admissible to establish the trust. In re Fleetwood (1880) 15 Ch. D. 694 followed. Held, also, that a complete valid and consistent trust had been established by the codicil and the memorandum of even date. Decision of the Court of Appeal [1928] Ch. 614 affirmed. Appa from an order of the Court of Appeal (1) affirming a judgment of Eve J. The action was brought by the appellants, the widow and son of John Duncan Blackwell, the elder (hereinafter called “the testator”), as residuary legatees under his will and codicils, for a declaration that no valid trusts of a legacy of 12,0001. bequeathed to the respondents Mark Oliver, Arthur Emest Harrison, Fred Wettern, Edward Watson * Present: Lorp Hamstam L.C., Viscount Sumver, Lonp BuckMasTER, Lorp Carsox, and Lorp WaRRINGTon om CLyvrE. (1) [1928] Ch. 614.A.C. AND PRIVY COUNOIL. 319 + Barnett and William Perey Cowley by a fourth codicil to the H.L. (E.) testator’s will were ever declared by the testator in favour of 1929 two other respondents, a lady and her son, an infant sixteen Brackwex. years of age, who were the beneficiaries under the trust legacy, Busckwotts or either of them, and that the legacy ought to be held upon the trusts declared by the said will and codicils of and concerning the testator’s residuary estate. The facts are fully stated in the report of the case before the Court of Appeal and sufficiently appear from the opinion ‘of Lord Buckmaster, and they are ‘summarized in the headnote. Eve J. held on the authority of In re Fleetwood (1) that the parol evidence adduced to prove the testator’s declarations of the trusts of the legacy of 12,0001. was admissible, and that the codicil and a memorandum of even date of the respondent Cowley disclosed a complete valid and consistent trust of the legacy, and he dismissed the action; and the Court of Appeal (Lord Hanworth M.R., Lawrence and Russell L.JJ.) affirmed his decision. 1928. Oct. 30; Nov. 1,2. Sir Thomas Hughes K.C. and J. M. Easton for the appellants. By s. 9 of the Wills Act, 1837, no will shall be valid unless it shall be in writing signed by the testator and attested in the manner therein mentioned. To admit parol evidence to explain what are the trusts of the will is directly contrary to the letter and spirit of the Act. There is one apparent exception to s. 9. A document not admitted to probate, if it is clearly identified by the description of it in the will and is shown to have been in existence when the will was executed, may be incorporated as part of the will: Singleton v. Tomlinson. (2) No further exceptions ought to be admitted. If the trust is in a written memorandum some protection is afforded, but if it is to depend on human testimony that protection is absent, and it was the object of the Wills Act to prevent that. There is one other apparent exception. Where a legacy is given to a man absolutely on the face of the gift, but he has been told by the testator the (1) 15 Ch. D, 594. (2) (1878) 3 App. Cas, 404, 413,320 H. L. (B) 1929 —— BuacKwELL 8. ‘BUACKWELL, HOUSE OF LORDS [1929] purposes for which he is to hold the money and expressly or impliedly agrees to abide by those instructions, then he is regarded as a trustee. The theory is that the legatee’s assent is a promise by him to carry out the trust and that he is bound in conscience to fulfil it. In such a case parol evidence is admissible to prove (a) that the legatee is a trustee ; (b) what are the terms of the trust: McCormick v. Grogan. (1) It was recognized that this doctrine, which was founded on personal fraud, involved a wide departure from the policy of the Wills Act and required to be restricted within proper limits. The so-called exception established by that case is not really an exception at all. The legatee does take the gift in accordance with the Wills Act, but then equity steps in and prevents him from committing « fraud ; ‘it fastens on his conscience and compels him to give effect to the trust. In that case, however, this House has said that this exception, if it is an exception, is not to be extended beyond the case of fraud, and their Lordships would appear to have thought that the malus animus must exist at the time of making the promise ; but it is not necessary to go so far. That doctrine does not apply to a gift explicitly to trustees who are endeavouring to support the trust. Where the legates ig expressed to be a trustee no question of fraud arises, and the question becomes merely one between the cestui que trust and the residuary legatees. In such a case parol evidence is inadmissible to show what were the purposes indicated by the testator, and, in the absence of any other trust, the trust is for the residuary legates. In re Fleetwood (2), which is opposed to the appellants’ contention, is inconsistent with the principle of McCormick v. Grogan (3), and was wrongly decided. Hall V.-C.’s decision was founded upon an Irish case, Riordan v. Banon (4), which proceeds upon the erroneous view that the principle of McCormick's case (3)— that the Statute of Wills was not to be used as an instrument of fraud—applies to cases where the legatee is expressed to take as trustee as well as to cases where the gift is in form absolute. (1) (1869) L. B. 4H. L. 82, 89,97, (3) LL R.4 HL. 82. (2) 16 Ch. D. 694. (4) (1876) 1. R. 10 Eq. 469, 478.A.C. AND PRIVY COUNCIL. There can be no question of fraud where the person to whom the property is given is not setting up a title of his own. The cases under the Statute of Frauds cited by the Vice-Chancellor in support of his decision cannot be relied on as authorities upon s. 9 of the Wills Act, which is framed in different language. In Crook v. Brooking (1) the point whether or not the trust was well declared was not argued, and the only question was as to the construction of the letter disclosing the trust. In Pring v. Pring (2) it does not appear whether there was any serious dispute as to the admissibility of parol evidence, but it is an authority that, notwithstanding the Statute of Frauds, parol evidence might be admitted to show what the trust was. In Smith v. Allersoll (3) the exeoutors had written out the trusts on which the property was to be held and the Court recognized the paper writing as @ valid declaration of trusts. But the next of kin do not appear to have been parties, and that case carries the matter no further. In Podmore v. Gunning (4) the testator gave his estate to his wife absolutely “having a perfect confidence she will act up to those views which I have communicated to her in the ultimate disposal of my property after her decease.” At the present time that would not be read as imposing any legal obligation on the wife. The plaintiffs claimed to be beneficiaries under the trust. Shadwell V.-C. held on the facts that the plaintiffs had failed to prove their case, but said that they would have been entitled if they had. That is dictum only. (Lorp Warrmmeron. In Cullen v. Attorney-General for Ireland (5) Lord Westbury points out that “ where there is secret trust, or where there is a right created by a personal confidence reposed by a testator in any individual, the breach of which confidence would amount to a fraud, the title of the party claiming under the secret trust, or claiming by virtue of that personal confidence, is a title dehors the will, and which cannot be correctly termed testamentary.”’] (1) (1688-89) 2 Vern. 50, 106. (8) (1826) 1 Russ. 266, 276. (2) (1689) 2 Vern. 99. (4) (1836) 7 Sim. 644. (5) (1866) L. R. 1 H, L. 190, 198. 321 H. L. (E) 1929 ‘BrackweLn ° ‘BLACKWELL.322 HOUSE OF LORDS {1929) H.L.(E) That is the true foundation of the doctrine of McCormick's 1929 case. (1) Bracewext, [LoRD Buokmasrer referred to Lewin on Trusts, 13th ed., Brackwexx, P. 60, ch. 3, sect. 3, para. 17.] = ‘That passage is a very clear and cogent argument in support of the appellants’ case. It shows that the Court only interferes in the case of fraud, and that where a trust results upon the face of the will the circumstance of an express or implied promise on the part of the devise to execute a certain trust is not a sufficient ground for authorizing the Court to execute the trust as against the heir. For the purposes of the present. appeal it is immaterial whether the gift is to a devisee or legatee. Mr. Jarman’s opinion was to the same effect. In Jarman on Wills, 6th ed., p. 484, the editor, quoting a passage from the first edition, says: “As the law requires wills of both real and personal estates . . . . to be in writing, it cannot, consistently with this doctrine, permit parol evidence to be adduced, either to contradict, add to, or explain the contents of such will; and the principle of this rule evidently demands an inflexible adherence to it, even where the consequence is the partial or total failure of the testator’s intended disposition.” The passage goes on to say that “no principle connected with law of wills is more firmly established or more familiar in its application than this.” The editor adds “Mr, Jarman, it is clear, would not have approved the decision in Re Fleetwood (2)”, and he deals with that decision at p. 496. The same case is also criticized in Williams on Executors, 11th ed., p. 1224, where ~ the following passage occurs: “In Re Fleetwood (2) Vice- Chancellor Hall held that one of the witnesses to the will being interested under the parol trust such interest failed, but if the trust was enforced not under the will but to prevent the Wills Act being used for fraud, the decision would seem difficult to support.” In Theobald on Wills, 8th ed., p. 81, after a reference to (among other authorities) Crook v. Brooking (3), Pring v. Pring (4), Riordan v. Banon (5), and In re Fleetwood (2), (1) L. R.4H. L. 82. (3) 2 Vern. 50, 106. (2) 15 Ch. D, 594, (4) 2 Vern. 99. (6) I, R. 10 Eq. 469.A.C. AND PRIVY COUNCIL. the following passage occurs: “The doctrine of these cases appears to have been established before the Wills Act by analogy to the cases of incorporation of documents in wills, but it is difficult to understand how it can have been upheld since the Wills Act. That Act declares that no will shall be valid unless it shall be in writing; the cases decide, that a will may be valid, though it is partly in writing and partly not.” As to the cases since In re Fleetwood. (1) In Inre Pitt Rivers (2) Vaughan Williams L.J. said that the Court never gave the go-by to the provisions of the Wills Act by enforcing upon any one testamentary intentions not expressed in the shape and form required by the Act, except for the prevention of fraud. But it was said in the Court below in the present case that the Court of Appeal had confirmed In re Fleetwood in In re Huxtable. (3) In that case no objection was taken to the admissibility of the evidence, and the only question was whether the charitable gift applied to the corpus as well as to the income. Farwell J., however, said he would have had some doubt about the admissibility of the evidence but for Zn re Fleetwood. (1) In the Court of Appeal In re Fleetwood (1) was not referred to, and again the question of admissibility was not argued, but Vaughan Williams LJ. said he had no doubt the affidavit was admissible to show what the purposes agreed upon were. That was dictum only, and cannot easily be reconciled with the dictum of the same learned Lord Justice in In re Pitt Rivers.(2) Even assuming that the point was decided by the Court of Appeal that decision ig not binding on your Lordships. In In re Helley (4) it was held that In re Fleetwood (1) had no application to a case where a power was given to a tenant for life to dispose of the property in accordance with wishes verbally expressed. In Le Page v. Gardom (5) both Lord Dunedin and Lord Parker kept an open mind as to the correctness of the decision in In re Fleetwood (1), and in In re Gardner (6) Warrington L.J. (1) 15 Ch. D. 594. 2 Ch, 793, 795. (2) [1902] 1 Ch. 403. (4) [1902] 2 Ch. 866. (8) [1902] 1 Ch. 214, 216; [1902] (5) (1915) 84. J.(Ch.) 749, 752, 753. (6) [1920] 2 Ch. 523, 632. 323 HL. (B) 1929 BrACkWELL v Brackwsun.324 HOUSE OF LORDS [1929] H. L. (E.) (as he then was) also treated the question as open. Assuming 1929 that In re Fleetwood (1) was wrongly decided, as being in Bracrwent contravention of s. 9 of the Wills Act, has it been standing Brackwan, too long to be upset? That question is answered by the decision of this House in Bourne v. Keane (2), where a decision of eighty-five years’ standing was upset. There is here nothing to show that the decision in In re Fleetwood (1) has ever become the foundation of any practice. Further, the trust is not effectually declared and is void for uncertainty. There is no definite trust of income for any particular period of time and no definite trust of the capital. C. A. Bennett K.C. and John Bennett for the respondents. In te Fleetwood:(1) is right both upon authority and upon principle. The principle of that decision—namely, that verbal or written instructions communicated by a testator to a legatee and assented to by him create an enforceable trust—has been accepted in Prideaux’s Conveyancing, 16th ed., vol. ii., p. 535, and it is there expressly stated that the rule applies whether the will refers to the undisclosed trust or not. This rule is stated in general terms by Lord Davey in French v. French. (3) What creates the trust is the promise which the testator has taken from the person to whom the property is given. The power of the Court to execute the trust cannot depend upon the question whether the person upon whom the trust is imposed is or is not fraudulent. The inroad made upon the Wills Act may have been made in the first instance in the case of fraud, but it does not depend upon fraud. The Court will carry into effect all the terms of the trust which result from the promise given by the legatee, whether in form the gift is absolute or upon trust. For the purposes of this argument there is no material difference between the Statute of Frauds and the Wills Act, and therefore decisions under the earlier statute are relevant. In re Fleetwood (1) is supported by Pring v. Pring (4) and Smith v. Aitersoll (5), which are decisions under the Statute of Frauds, (1) 15 Ch, D, 594. (3) [1902] 1 I. BR. 172, 230. (2) [1919] A. C. 815, 874, 915, (4) 2 Vern, 99. (6) 1 Russ. 266.A.C. AND PRIVY COUNCIL. and by Riordan v. Banon (1), a decision under the Wills Act, and it has been acted upon by the Court of Appeal in In re Huztable. (2) There the gift could only be carried into effect if the Court admitted parol evidence as to who the beneficiaries were on the basis of In re Fleetwood. (3) Ever since 1689 parol evidence has been held to be admissible in circumstances like the present to show what the terms of the trust are, and the Court has enforced the trust. In re Fleetwood (3) is also right on principle. A contrary decision making the jurisdiction of the Court depend upon the trustee being a fraudulent person would have led to an extraordinary inconsistency. Sir Thomas Hughes K.C. replied. [The following cases were also referred to: Johnson v. Ball (4); Jones v. Badley. (5)} The House took time for consideration. 1929. Jan. 24, Lorp Buckmaster. My Lords, the Lord Chancellor desires me to say that he agrees with the judgment that I am about to read. The question raised on this appeal is one which in various forms has for over 200 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 not contained in a written document duly executed as a will. That to some extent such intentions can be established even when orally expressed 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. (6) This, however, does not directly govern the present case, as the following facts will show. The testator at the time of (1) I. R. 10 Eq, 469, (4) (1851) 5 DeG. & Sm. 85. (2) [1902] 2 Ch. 793. (5) (1868) L. R. 3 Ch. 362. (8) 15 Ch. D, 594, (6) L.R.4H. L. 82, 325 HL. (E) 1929 ‘BrackwaLu v. ‘Brackwaun,326 HL L. (B) 1929 BiackwELt, BLACKWELL. Lora ‘Buckmaster. HOUSE OF LORDS (1929) his death had a son of sixteen 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 his anxiety and his wish 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 12,000J., 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 Islo of Man. I agreed to act as a trustes.” The testator, therefore, caused the respondent, W. P. Cowley, who had for some time acted as his solicitor, to be summoned. He arrived on February 13 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 iavest 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 purposes indicated by me to them with full power at any time to pay 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.”A.C. AND PRIVY COUNCIL. 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 12,0001. to be paid to (then there followed the name and address of the woman) or applied at discretion of trustees for benefit of herself and her son (mentioning him by name). ‘At any time trustees may pay over 8000J. of capital either to her or [her son] or both of them. In such event 40001. is to go back to testator’s trustees on same trusts as his residuary estate. W. Perey Cowley.” The testator died on June 3, 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 12,0007. 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 beert 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, 13th ed., p. 60 (1), and its strength lies in this—that while in a beneficial (1) Tho passago in tho 13th editioi is a repotition of a passage in the Sth edition, p. 64, for which Mr. Lewin was responsible—H. B. H. 327 H. L. (BE) 1929 BLACKWELL v. ‘BLACKWELL. Tord Buckmaster.328 H. L. (E) 1929 HOUSE OF LORDS 1929) gift the imposition of a trust does not contradict the terms of the will but merely adds to them, where the gift is made Bracewext on trust and no beneficiaries are specified the trust operates Brackwext, either for the residuary legatees or the next of kin and heir Tord Buckmaster, 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 consented to act by keeping the money for himself. Apart, however, from the personal benefit accruing to the trustee, the real beneficiaries 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 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 see 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 enure 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.A.C. AND PRIVY COUNCIL. 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 question has been the subject of decision. These authorities go back for over two centuries, and the first striking fact is that in no single instance 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 (1), 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 induced 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 In re Fleetwood (2), the earlier authorities were not cited. In the first case of Crook v. Brooking (3), decided by Lord Chancellor Jeffreys in 1688, the testator devised 15001. 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 (1) L.R. 4H. L. 82, 89, (2) 15 Ch. D. 594, 607-8. (3) 2 Vern. 50, 106. A.C. 1929. 3 2A 329 HL L. (E.) 1929 ree) BrackWELL e ‘Brackweuz. Tord ‘Buckmaster.330 H. L. (B) 1929 fees BrackwELt v BLACKWELL, Tord Buckmaster, HOUSE OF LORDS [1829] in the lifetime of her husband, the 15001. 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, p. 106. In Pring v. Pring (1) in the following year a man gave properties to his executors, directed that they should be held in trust and the testator’s wife brought a bill declaring that the trust 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. Aitersoll (2), where again the gift was to executors in trust for purposes explained outside the will, and to the same effect was Podmore v. Gunning (3), 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 (4), a testator determined to settle upon his mistress and’ illegitimate children a policy of insurance for 20001., and by his will of February 21, 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 August 4, 1845. The Vice- Chancellor held that the trusts could not be carried out but the reasons for his judgment are most instructive. The learned judge points out that the letter referred to in the (2) 2 Vern. 99. (3) 7 Sim. 644. (2) 1 Russ, 266. (4) 5 De G. & Sm. 85, 91.A.C. AND PRIVY COUNCIL. 331 will had no existence at the time when the will was made H. L. (E.) and that, supposing it referred to a letter afterwards signed, 1929 it is impossible to give effect to it as a declaration of the trusts Buackwett since it would admit the document as part of the will and it piackwars. was unattested. The learned Vice-Chancellor adds: “ Cases Tord 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 the argument in which the will refers to a trust created by the testator by communication with the legatee antecedently to or contemporaneously 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 (1), an authority which indis- putably 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—namely, 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 prevented 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 (2), and decided that che trusts should be executed. That decision has never been definitely disapproved in any decided case, for the statements in Le Page v. Gardom (3) and In re (1) 15 Ch. D. 594, (2) L. R.4 H. L, 82. (3) 84. J. (Ch.) 749, 752, 753. 3 2az Tord Buckmaster,332 H. L. (E) 1929 Buackwaxt. v. BLACKWELL Lord ‘Buckmaster. HOUSE OF LORDS (1929) Gardner (1) 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 Huztable.(2) In that case a testatrix bequeathed a sum of 4000I. for the charitable purposes agreed upon between us. The testatrix had, in fact, verbally communicated to the legatee her intention to leave him the sum of 40001., 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, Farwell J. 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 40001. which, upon the face of the will, was wholly given for charitable purposes but was not admissible for the purpose of providing for the 4000/. after the death of the trustee, since the will had given the whole 4000/. 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. (3) In these circumstances, even if the antecedent decisions had been less definite, it would require a very clear conviction that In re Fleetwood (3) was wrongly decided to render it right and proper that it should now be overruled. The case of Bourne v. Keane (4) was referred to for the purpose of (1) [1920] 2 Ch. 623, 632, (3) 15 Ch. D. 594, (2) [1902] 2 Ch, 793. (4) [919] A. ©. 815,A.C. AND PRIVY COUNCIL. showing that this House had overruled an authority of West v. Shuttleworth (1), 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 circum- stances were however entirely different from those in the present case, for the effect of West v. Shuttleworth (1) 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 (2) 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 reasons after this lapse of time to declare that such dispositions were bad. In my opinion, however, In re Fleetwood (2) was not wrongly decided. It was decided in accordance with the series of authorities by which the law was established and which it is now too late to question or to overrule. Viscount Sumner. My Lords, I am satisfied that In re Fleetwood (2), which is not distinguishable from the present case on the facts, was affirmed by the Court of Appeal in In re Huatable (3), 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 s. 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, (1) (1835) 2 My. & K, 684, (2) 15 Ch. D. 594. (8) [1902] 2 Ch, 793. 333 H. L. (E) 1929 BLACKWELL v. Brack wes. Lord, Buekinaster.334 HLL. (EB) 1929 Buagkweut BisckWwsrt. — HOUSE OF LORDS (1929) 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 Le Page v. Gardom (1) and Warrington L.J. in Gardner's Case (2), 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 connection 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 jurisdiction, 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 thero 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 (1) 841. J. (Ch.) 749, 752, 758. (2) [1920] 2 Ch. 523, 532.A.C. AND PRIVY COUNOIL. 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 it does 80 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 (1) and In re Huctable (2) 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 application of the principle of equity, which was made in Fleetwood’s and Husatable’s cases, was logical, and was justified by the same considera- tions 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” prevent the legatee from taking beneficially, whether they have simply been declared in conversation or written in the will, but the fraud, when the (1) 15 Ch. D. 594, (2) [1902] 2 Ch. 793. 335, HL.) 1929 Brackwan. Brackwae, ‘Viscount Sumner.336 HOUSE OF LORDS [1929] H, L. (BE) trustee, so called in the will, is also the residuary legatee, is 1929 the same as when he is only declared a trustee by word of Bracewaxz mouth accepted by him. I recoil from interfering with Brackwarx, decisions of long standing, which reject this anomaly, unless Viscount, Surnner. 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 authorities seem to have expressed an opinion, that this equitable principle, as a whole, conflicts with s. 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 and accepted, “it is in effect a case of trust, and in such case 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 statutes ; but for the . . . . prevention of fraud, it engrafts the trusts on the devise by admitting evidence which the statute would in terms exclude, in order to prevent a devisee from applying property to a purpose foreign to that for which he undertook to hold it”: Jones v. Badley. (1) In the following year in McCormick v. Grogan (2) Lord Hatherley says that this doctrine, that equity interferes to prevent a breach of an undertaking given to a testator, “is in itself a doctrine which involves a wide departure from policy which induced the Legislature to pass 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 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 perpetrating a fraud an Act of Parliament intervenes, the Court of Equity, it is true, does not set aside (1) L. R. 3 Ch, 362+ 364. (2) L. R.4H, L. 82, 88, 89, 97.A.C. AND PRIVY COUNCIL. the Act of Parliament, but it fastens on the individual who gots a title under that Act, and imposes upon him a personal obligation, 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, also, it deals with the Statute of Wills.” 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 connection equity has “given the go-by”” to the Wills Act (In re Pitt-Rivers (1)), 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 tho will has made him according to its terms. This exactly con- forms to Lord Westbury’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 foree of the words of the will that the residuary legatee takes what is given in trust without any specification 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 acase. Nows. 9 of the Wills Act prescribes the form, in which any disposition in a will must be testified, if it is to be valid, (1) [1902] 1 Ch. 403, 407. 337 iH. L. (E) 1929 Brackweut Brack wen, ‘Viscount, Sumner.338, HOUSE OF LORDS (1929) H. L. (E.) but it does not deal with the construction of wills, or the 1929 application of the general law of trusts to interests created Buackwe by wills. It is one thing to say that in itself the trust cannot Brackwnxt, be given effect to, not being expressed in the will, but it is Viscount Sumner. 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 legates 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 Commission of 1830—after inquiring (inter alia) into the subject of wills of real and personal property had reported before the Wills Act came before Parliament asa Bill. The extent to which parol evidence was admissible under existing practice for various purposes and the evils thereout arising were known. The equitable doctrine which is now before your Lordships was on record ever since Pring v. Pring. (1) In Smith v. Atersoll (2) 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. Nabbs (3), 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 trustees admitted their trust, evidence could be referred to. The Wills Act made no attempt to correct this quaint way of regarding a statute. So far as s. 9 is concerned it simply (1) 2 Vern. 99. (2) 1 Buss. 266. (8) (1718) Gilbert Eq. Rep. 148.A.C. AND PRIVY COUNCIL. increased and defined the formalities already required by law. Similarly there had long been litigation between executors and next of kin on the question 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. 4 and 1 Will. 4, 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 s. 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 juris- diction, even in connection with secret dispositions 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 limita, 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 dispositions 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 (1); In re Boyes (2); Riordan v. Banon (3); In re Hetley.(4) To hold otherwise would indeed 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 (1) 5 De G. & Sm. 85. a (3) I. R. 10 Eq, 469, (2) (1884) 26 Ch. D. 531. (4) [1902] 2 Ch. 866. 339 HL (B) 1929 Bracewans, Brackwarn, Viscount, Sumner.340 HOUSE OF LORDS [1929] H. L. (E.) applied in this instance to trustees, who happen also to be 1929 legatees, If I am right in thinking that there is no contra- Brackwout diction of the Wills Act in applying the same rule, whether Bracken. the trustee is or is not so described in the will, and the whole Viscount ‘Sumner, 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 connections. 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 Lord- ships should refuse to interfere with them now. Accordingly in my opinion the appeal fails on all grounds. Lorp Warrineton or Ciyrre. My Lords, the testator John Duncan Louis Blackwell on February 13, 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, William Percy Cowley the sum of 12,0001. 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 80001. to such person or persons indicated by me as they think fit and to pay the balance of 40001. 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 June 3, 1925.A. AND PRIVY COUNCIL. 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. Tt has Jong 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 presumed 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 (1) 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 to 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. Attorney- General for Ireland. (2) 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. (1) (1861) 1 Jo. & H. 352, 367. (2) (1866) L. R. 1 H. L. 190. 341 HLL. (BE) 1929 BiAckWELT, v. BLACKWELL. Tard Warrington of Clyife,342 H. L. (E) 1929 BLACKWELL v BrackweELs. HOUSE OF LORDS (1928) 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. in In re Fleetwood (1), the Court of Appeal also expressing the view that that judgment was followed by the Court of Appeal in In re Hustable. (2) 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. Subsequent reflection however and a careful perusal of the judgment of Hall V.-C. in In re Fleetwood (1), 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, communicated 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 inadmissible, 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. Tt was contended for the appellants, who claim as residuary legatees to be entitled to the fund should the trust not be established, that the fraud for the avoidance of which the trust is enforced 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 thomselves parties to such fraud. On this point I agree with the view expressed by Wood V.-C. in Moss v. Cooper (3) and by Hall V.-C. in In re Fleetwood. (1) (1) 16 Ch. D. 694. (2) [1902] 2 Ch. 793. (8) (1861) 1 Jo, & H. 352, 367.A.C. AND PRIVY COUNCIL. ‘The authorities prior to In re Fleetwood (1), some of them dating as far back as 1688 and 1689, were carefully analyzed 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 In re Huztable (2) could not have been decided as it was unless the Court had approved of the decision in In re Fleetwood. (1) For these reasons I think that this appeal should be dismissed with costs. Lorn Buckmaster. My Lords, my noble and learned friend Lord Carson desires me to say that he agrees with the views that have already been expressed. Order of the Court of Appeal affirmed and appeal dismissed with costs. Lords’ Journals, Jan. 24, 1929, Solicitors for the appellants : Rooke & Sons, for T. & @. 8. Brownson, Hyde and Manchester. Solicitors for the respondents : Simmons & Simmons, for Graham-Hooper & Betteridge, Brighton, and March, Pearson & Green, Manchester. (1) 15 Ch. D. 694. (2) [1902] 2 Ch, 793. 343 HL. (E) 1929 BLACKWELL Brackwet, Tord, ‘Warrington ‘of Clytte.