the trust. The circumstances which attend a transfer of property may, in the absence of all other evidence, show an intention to create a trust of the property transferred. If A. takes a conveyance of land or transfer of stock in the name of B. and pays the purchase money, the courts hold that B. is a trustee of the land or stock for A.; but this trust does not arise because A. had no intention in regard to the matter. The trust is based upon the presumed intention of A., and the presumption may be rebutted by other circumstances of the transaction. On the other hand, if A. gives property to B. upon trusts which are intended to exhaust the beneficial interest in the property given, but which fail of effect either wholly or partially, e.g., because they are indefinite or remote or illegal, B. is a trustee for A. of the unexhausted beneficial interest in the property. In this case A. clearly did not intend to create a trust in his own favour. The trust in his favour arises by operation of law and as a consequence of the doctrine, that, where a person takes as a trustee, he can never claim to hold beneficially. "All trusts," says Lord NOTTINGHAM in Cook v. Fountain (z), "are either, first, express trusts, which are raised and created by act of the parties, or implied trusts, which are raised or created by act or construction of law; again, express trusts are declared either by word or writing; and these declarations appear either by direct and manifest proof, or violent and necessary presumption. These last are commonly called presumptive trusts; and that is, when the court, upon consideration of all circumstances, presumes there was a declaration, either by word or writing, though the plain and direct proof thereof be not extant."

D.-REQUISITES FOR THE CREATION OF A VALID TRUST
AS BETWEEN THE CREATOR OF THE TRUST AND THE
CESTUI QUE TRUST.

A trust may be created either for valuable consideration Completed or gratuitously; and where it has been validly constituted, trust cannot "be revoked its creator cannot revoke or alter it unless he has reserved or altered.

(*) (1676), 3 Sw. 585, p. 591.

Declaration of trust by

owner.

Trust arising from transfer.

a power of revocation, although it was voluntary (a), and although it was not communicated to the cestui que trust (b). A trust may be validly constituted in either of two ways. The owner of property may declare himself a trustee of that property for another person, or he may transfer property to a trustee in trust for a third person (c). Each of these methods requires a separate treatment.

If A. declares himself a trustee of property for B., the beneficial interest in the property is as effectually divested out of him as if he had given the property to a third person in trust for B.; and B. has as large rights against A. as he would have against any other trustee. A party may declare himself a trustee for another of property in which he has an equitable as well as of property in which he has a legal interest; and a creditor may declare himself a trustee for another of a debt which is due to him (d). If a trust is intended to be carried into effect by a transfer, and the transfer is imperfect, the court will not hold the imperfect transfer to operate as a declaration of trust (e), even in the case of a gift by a husband to his wife (ƒ).

If A. gives property to B. and it is clear that A. intended at the time to confer a benefit upon B., A. cannot subsequently recover the property from B. simply because he repents of his generosity. To entitle him to recover the property he must show some equity in his favour, such as fraud or undue influence by B. in obtaining the gift, or the existence on B.'s side of a fiduciary relation towards him which, while it lasts, disqualifies B. from receiving a gift from him (g). On the other hand, the court will not assist

(a) Bill v. Cureton (1835), 2 My. & K. 503; Smith v. Hurst (1852), 10 Ha. 30, p. 47; Paul v. Paul (1882), 20 Ch. D. 742. (b) Re Way's Trusts (1864), 2 D. J. & S. 365.

(c) Milroy v. Lord (1862), 4 D. F. & J. 264, p. 274.

(d) Wheatley v. Purr (1837), 1 Kee. 551; McFadden v. Jenkyns (1842),

1 Ph. 153.

(e) Milroy v. Lord (1862), 4 D. F. & J. 264; Jones v. Lock (1865), L. R.1 Ch. 25; Warriner v. Rogers (1873), 16 Eq. 340; Richards v. Delbridge (1874), 18 Eq. 11; Heartley v. Nicholson (1875), 19 Eq. 233. (f) In re Breton's Estate (1881), 17 Ch. D. 416.

(g) Henry v. Armstrong (1881), 18 Ch. D. 668; Ogilvie v. Littleboy (1897), in C. A., 13 T. L. R. 399; S. C. in H. L., Ogilvie v. Allen (1899),

15 T. L. R. 294.

a volunteer to perfect an imperfect gift. If A. promises without consideration to give property to B., B. cannot institute a suit against A. to compel him to perform his promise (h). The same principles apply where the gift is made not directly to B., but to B. through the intervention of trustees. If A. gives property to a trustee for B., A. cannot revoke or alter the gift; if he merely promises to give it to a trustee for B., B. cannot compel him to perform his promise. The question whether a gift is effectual depends upon whether it is necessary to seek any relief against the donor in order to vest the subject-matter of the gift completely in the donee or in his trustee. If the donee or his trustee has to seek relief against the donor, the gift, so far as the donor is concerned, is not complete; and the court will not assist the donee to complete it. Therefore if A. has the legal title to property as well as the equitable interest, and transfers the equitable interest to B. or to a trustee for B., without at the same time divesting himself of the legal title, the court will not compel him at the instance of B. or of B.'s trustee to transfer the legal title (i). But if no relief is sought against the donor it is immaterial that relief has to be sought against some third person in whom the legal title is vested. If A. has merely an equitable interest in property and transfers that equitable interest to B., the gift is complete so far as A. is concerned (k); and it is none the less complete that the legal interest is held on trust for A. absolutely, so that he could get it in whenever he wished (). The person in whom the legal title is vested becomes upon the transfer a trustee for B. and B. can compel his trustee to convey the legal title to him or to deal with it as he directs.

The conditions which must be fulfilled in order to consti- What amounts to tute a complete and irrevocable gift vary with the nature complete transfer.

(h) Antrobus v. Smith (1806), 12 Ves. 39. The doctrine that the court will not perfect an imperfect gift does not apply to donationes mortis causa (Duffield v. Elwes (1827), 1 Bli. (N.s.) 497; In re Dillon (1890), 44 Ch. D. 76).

(i) Dillon v. Coppin (1839), 4 My. & Cr. 647; Milroy v. Lord (1862), 4 D. F. & J. 264.

(k) Kekewich v. Manning (1851), 1 D. M. & G. 176.

(1) Donaldson v. Donaldson (1854), Kay, 711.

of the subject-matter upon which the gift is intended to operate. A donor who has both the legal and equitable title to land can only make a complete gift of the land by conveyance. The owner of a chattel can only make a complete gift by delivery (m). A donor who has both the legal and equitable title to shares or stock which is registered in the books of a company can only make a complete gift by executing a transfer such as to give the transferee a present absolute and unconditional right to have the transfer registered (n). No formalities are required for the transfer of an equitable interest in property, except that where the interest concerns land it can only be transferred by an instrument which satisfies the requirements of the Statute of Frauds. Thus, where an equitable mortgagee of land by deposit of the title-deeds delivers the deed deposited without any writing, although with the intention of transferring the interest in the mortgage debt, the gift is incomplete (0). A chose in action could not be assigned at law before the Judicature Act, and the authorities were in conflict as to whether a chose in action could be effectually assigned without valuable consideration. In Fortescue v. Barnett (p) A. assigned by deed a policy of assurance on his life and covenanted to keep up the premiums. The deed was delivered to the donee but A. kept the policy in his hands. LEACH, M.R., held that the gift was complete. In Edwards v. Jones (q) the obligee of two bonds delivered them to A., and at the same time made an indorsement not under seal upon one of them by which she assigned it to A. and empowered A. to sue for and recover the amount thereof. Lord COTTENHAM held that the gift was not complete, and he distinguished Fortescue v. Barnett on the ground that, though the policy of assurance was not assignable at law, it was made by contract assignable between the parties. By the Judicature Act, 1873, an absolute assignment by writing under the hand of the assignor of any debt

(m) Cochrane v. Moore (1890), 25 Q. B. D. 57.

(n) Societe Générale de Paris v. Walker (1885), 11 App. Cas. 20, p. 28; Nanney v. Morgan (1887), 37 Ch. D. 346; Moore v. North Western Bank, [1891] 2 Ch. 599; Ireland v. Hart, [1902] 1 Ch. 522.

(0) In re Richardson (1885), 30 Ch. D. 396.

(p) (1834), 3 My, & K. 36.

(q) (1836), 1 My, & Cr. 226.

or other legal chose in action of which express notice in writing has been given to the debtor is made effectual in law to pass the legal right to the debt or chose in action from the date of the notice (r). In all the cases (s) in which since the Act a voluntary assignment has been upheld it has been by writing under the hand of the assignor; but notice has not been treated as a condition precedent to its validity. These cases, therefore, appear to be authorities that an equitable assignment of a debt may be valid although it is voluntary. Where a debt is secured by a bill of sale the debt may be effectually assigned by voluntary instrument without an assignment either of the bill of sale or of the property secured. In In re Patrick (t) specialty debts were secured on goods by registered bills of sale. The creditor, by a voluntary settlement, assigned the debts to trustees and empowered them to get in the debts and to execute and do all such assurances and things as should be expedient for the purpose. The settlement did not expressly assign either the bills of sale or the goods. The Court of Appeal held that the gift was complete.

Where a legal or equitable chose in action is assigned, and no notice is given to the debtor or trustee, the omission to give notice may postpone the transferee who has failed to give it to a transferee later in date who has been diligent in giving it; and if no notice is given the debtor or trustee incurs no liability by paying over the debt or fund to that claimant of whose rights he has notice; but omission to give notice does not vary rights as between transferor and transferee (u). Hence, if a donor who has made a complete gift of a debt or trust fund, subsequently gets in the debt or fund, he is accountable to his donee for the amount so got in (x).

(r) Section 25 (6).

(8) In re Harding (1886), 17 Q. B. D. 442; In re Patrick, [1891] 1 Ch. 82; In re Griffin, [1899] 1 Ch. 408.

(t) Supra.

(u) Fortescue v. Barnett (1834), 3 My. & K. 36; Donaldson v. Donaldson (1854), Kay, 711; In re Patrick, [1891] 1 Ch. 82; In re Griffin, [1899]1 Ch. 408.

(x) Fortescue v. Barnett, supra ; In re Patrick, supra.