GHAIDAN v GODIN-MENDOZA

Smith, Philip Henry; Flats, 1960; Williamson Art Gallery & Museum; http://www.artuk.org/artworks/flats-1960-67888

Same-sex relationships and the discrimination of landlords under death of secured tenants, provokes the wisdom of the judiciary when the progressive interpretation of existing statute is the only salient answer to a claim for devolved rights by the freeholder.

After living together in a committed homosexual relationship for over thirty years, the respondent had been left facing continued occupancy of the flat under the terms of an assured rather than secure tenancy following the death of his partner and secure tenant, thus by falling subject to the lesser of the two tenancies, the respondent had become vulnerable to potentially increased rents and no legal rights to challenge repossession should the freeholder decide to remove him.

Having sought enforcement under schedule 2 paragraph 1 of the Rent Act 1977 the appellant landlord argued that same-sex relationships were precluded from the enjoyment of direct succession of statutory tenancy as prescribed, however those surviving death could remain in occupation under an assured tenancy, as was held in Fitzpatrick v Sterling Housing Association Ltd.

Whereupon the respondent argued that as that case was raised prior to the Human Rights Act 1998 (HRA), devolution of rights through the application of the 1977 Act constituted a direct violation of articles 8 (Right to respect for private and family life) and 14 (Prohibition of discrimination) of the European Convention on Human Rights (ECHR), therefore he was free to remain in occupation under the same rights bestowed those in schedule 1 paragraphs 1, 2 and 3 of the 1977 Act, which stated that:

“1.Paragraph 2 or, as the case may be, paragraph 3 below shall have effect, subject to section 2(3) of this Act, for the purpose of determining who is the statutory tenant of a dwelling-house by succession after the death of the person (in this Part of this Schedule referred to as “the original tenant”) who, immediately before his death, was a protected tenant of the dwelling-house or the statutory tenant of it by virtue of his previous protected tenancy.

2. If the original tenant was a man who died leaving a widow who was residing with him at his death then, after his death, the widow shall be the statutory tenant if and so long as she occupies the dwelling-house as her residence.

3. Where paragraph 2 above does not apply, but a person who was a member of the original tenant’s family was residing with him at the time of and for the period of 6 months immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be the statutory tenant if and so long as he occupies the dwelling-house as his residence.”

Rent Act 1977

Historically the courts viewed paragraph 3 of the Rent Act 1977 as designed to treat unmarried women as family members in order to allow assured tenancies to permit continuous occupancy when no marriage or family previously existed; however, Fitzpatrick widened the scope of entitlement when the House of Lords had held that:

“[T]wo people of the same sex can be regarded as having established membership of a family, one of the most significant of human relationships which both gives benefits and imposes obligations.”

FITZPATRICK v STERLING HOUSING ASSOCIATION LTD

In the first hearing, the court awarded for the respondent on principle that overt discrimination was not a virtue welcome in English law, while the Court of Appeal upheld the previous judgment, before the matter wound up before the House of Lords.

Here, the facts were given equal attention before the House dismissed the appeal on grounds that the time was right to embrace the universal nature of close and loving bonds and the freedoms of the Convention without a need for Parliamentary involvement, while further holding that:

“[T]he social policy underlying the 1988 extension of security of tenure under paragraph 2 to the survivor of couples living together as husband and wife is equally applicable to the survivor of homosexual couples living together in a close and stable relationship.”

MAYES v. PEOPLE

Death resulting from a reckless act is on most occasions deemed manslaughter, however with overwhelming evidence of wilful intent, the court cannot simply accept anything less than a charge of murder, as was explained in this case between the convicting State and the subjective argument of a clearly mentally distressed man.

The nature of this 1883 matter rests upon the testimony of both a grandmother and the defendant in error’s young daughter, who at the time of the offence, witnessed their father return home from a nearby saloon in a drunken state, while obviously angry for reasons left unknown to the court.

Having entered the family home around 9pm, the defendant in error proceeded to request arsenic while explaining that either himself or the deceased needed to die; upon which, the deceased made a number of strategic attempts to placate his temper and settle his mind.

After his refusing to eat food or engage with those around him, the defendant in error later sat alone and continued to make demands upon his wife and daughter, until for no sound reason, he threw a tin of food at his daughter, who ran for safety as the deceased quickly followed with a gas lamp in hand.

At this point, the defendant in error forcefully threw a heavy beer glass at his wife, and upon which, the glass struck the lamp and caused the ignited oil to spill all over her clothing.

Seemingly unwilling to assist the deceased, the defendant in error watched as she was engulfed in flames and suffered five major burns to her head, neck, legs and body; all of which, led to her death some five days later.

Indicted in the Circuit Court of Jersey County, the jury convicted the defendant in error of murder, whereupon he appealed the decision under writ of error in the Illinois Supreme Court.

Here, the court first referred to § 140 of the Illinois Revised Statutes, which read that:

“Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.” 

And then to Francis Wharton’s ‘A Treatise on the Law of Homicide in the United States’, in which p. 45 read that:  

“When an action, unlawful in itself, is done with deliberation, and with intention of mischief or great bodily harm to particulars, or of mischief indiscriminately, fall where it may, and death ensue, against or beside the original intention of the party, it will be murder.”

While the defendant in error continued to explain that he was simply attempting to dispose of the glass through an open rear door; a statement which was reasoned away by the two witnesses, who confirmed that the door was in fact closed at all times that evening. 

Hence, with no reason to accept the alcohol-hazed recollection of a man claiming to have felt no ill-will toward the deceased, the court instead noted that had there been no aggression behind the act, the verdict would have likely been in doubt.

However, it was patently clear that harm was intended when assessing the impact of the glass upon the lamp; and so, with little hesitation the court upheld the previous judgment while reminding those present that:

“Malice is an indispensable element to the crime of murder.” 

R v HAIGH

As is peculiar to criminal law in most jurisdictions, the necessary component for murder requires evidence beyond a reasonable doubt of the both the act itself (actus reus), and the subjective intention (mens rea) of those accused.

And so, on this occasion the English criminal courts were left with no option other than to reduce a murder sentence to manslaughter, on grounds that there was simply insufficient evidence to adduce deliberate and unlawful killing, as opposed to what could only be construed as a momentary loss of control on the part of the defendant.

Having been born to unloving and dysfunctional parents, the appellant had been later adopted by a well educated and devoted couple when aged only eight years of age, and whose only wish was for her to have a better life than the one she had left behind.

Sadly during her adolescence, the appellant was further diagnosed with an IQ of just 74, a personality disorder, attention deficit and hyperactivity disorder (ADHD) and prolonged depression, for which she was on prescribed medication.

After meeting her former partner at the young age of sixteen, the appellant soon became pregnant, and gave birth to their son Billy two years later; and although the two of them remained together for a further three years, her partner was eventually incarcerated for assaulting her; an act which had followed years of his routine verbal and physical abuse towards her both before, and after, their son’s arrival.

At the point of her indictment before the Central Criminal Court, the appellant was reported to have called the ambulance services complaining that her son had stopped breathing, and yet despite clear instructions to perform emergency cardiopulmonary resuscitation (CPR) at the time of the call, her son was pronounced dead almost five hours later.

After which, it was claimed by court that the appellant had murdered her son by way of asphyxiation, and that there was sufficient medical evidence upon which to sustain the conviction; whereupon the appellant challenged the verdict in the Court of Appeals.

Here, the appellant contended that when reaching summary judgment, the trial court had erroneously accepted circumstantial evidence relating to previous interactions with her son, and which presented her in a poor light,

However, the court referred to R v Penman; in which, the deciding court had held that:

“[W]here it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence.”

R v Penman

Thus, the first aspect of her appeal was denied, while on a second count, the appellant claimed that lack of witness testimony, and only one physical symptom of trauma, prevented the court from establishing beyond a reasonable doubt that she had intended to murder, or at the very least unlawfully kill her son in the moments before his death.

Here, the court was reliant upon the presence of petechial haemorrhaging upon her child’s face, which in most instances was attributable to asphyxial death.

However, there was also theoretical argument that prolonged resuscitation could also prove a contributory factor; yet further circumstantial evidence proposed this as incredible, based upon the appellant’s refusal to perform CPR whilst waiting for the ambulance crew to arrive, and via witness testimony citing visible evidence of the symptoms upon their arrival.

In addition to this, there was further evidence of bleeding from the child’s ears, which according to expert medical testimony, had often been found present when addressing traumatic asphyxiation cases in which young children had become trapped in washing lines.

A fact which only exacerbated the suggestion that the appellant had either strangled or smothered her son whilst alone with him; therefore, the court held that there was sufficient evidence for a jury to determine that the appellant had unlawfully killed her child.

This left only the third count, which was that a murder conviction was unsafe due to the first two factors; and that there was simply no direct evidence to support the contention that the appellant had wilfully and with malice, killed her child, but that instead, the best the court could hope to rely upon was a manslaughter charge; an argument that caused the court to uphold the third ground of appeal, before quashing the murder conviction on grounds that in R v Stacey it had held that:

“[A]n intent to do serious bodily harm may be quickly formed and soon regretted; but so may a less serious intent, simply to stop a child crying by handling him in a way that any responsible adult would realise would cause serious damage or certainly might do so. That would only provide the mental element necessary for manslaughter.”

IN RE BADEN’S DEED TRUSTS NO.2

In what was to become an overly protracted and yet hotly debated case, the question of trust instrument validity and the limiting scope of trust powers, fell upon the English courts to answer, when what appeared at the time was judicial wisdom, later proved a confused doctrine that polluted similar cases in the years following its declaration.

Having become the director of a highly successful M&E company first established in 1927, and as a man of inherent providence, the deceased had taken it upon himself to draft a trust deed in 1941, that would allow his current and former employees to benefit from financial gifts on a potentially recurring basis, while in addition to this their immediate relatives were also to enjoy similar windfalls, as was contained in clause 9(a) of the trust, which read that:

“The trustees shall apply the net income of the fund in making at their absolute discretion grants to or for benefit of any of the officers and employees or ex-officers or ex-employees of the company or to any relatives or dependants of any such persons in such amounts at such times and on such conditions (if any) as they think fit and any such grant may at their discretion be made by payment to the beneficiary or to any institution or person to be applied for his or her benefit and in the latter case the trustees shall be under no obligation to see the application of the money…”

However upon his death in 1960, the appointed executors notified the trustees that the trust was void for uncertainty, as it would be almost impossible to distinguish one employee from another, never mind any relatives known to exist at the time of his passing, which was a position adopted in light of the company’s growth from 110 to 1,300 employees during the preceding years.

Commencing by way of an originating summons in 1967, the trustees argued that clause 9(a) merely represented a power to distribute funds to a class of beneficiaries, while the executors held that the use of the word ‘shall’ created instead, a mandatory trust that once unable to be fully executed, would nullify itself and thus fall within the residual estate.

In the first instance, the Court of Chancery examined the construction of the deed, and found that due to discretionary nature of clause 9(a), the trust conferred a power upon the trustees, and not an immutable instruction that once unfulfilled, rendered the trust void for uncertainty; a statement upon which the executors challenged the findings in the Court of Appeal.

Here, the court referred to In re Gestetner Settlement, in which Harman J had held that when ascertaining the exactness of a trust deed beneficiary class:

“[T]he trustees must worry their heads to survey the world from China to Peru…”

In re Gestetner Settlement

Which was to suggest an immense undertaking for trustees, unless it could be proven that the deed conferred a mere power, in which case, reasonable certainty of the beneficiary class ought then be shown. In light of this precedent, the court subsequently held that as before, the context of clause 9(a) was such that the trustees were afforded discretionary powers, and so held that:

“[C]lause 9 of the deed may properly be construed as the judge did, by holding that it creates a power and not a trust…”

At which point the executors along with the deceased’s widow, pursued their argument before the House of Lords on grounds that clause 9(a) represented a mandatory trust, and that as such, the ruling in the recent Inland Revenue Commissioners v Broadway Cottages directed the decision of the court when it held that:

“[A] trust for such members of a given class of objects as the trustees shall select is void for uncertainty, unless the whole range of objects eligible for selection is ascertained or capable of ascertainment…”

Inland Revenue Commissioners v Broadway Cottages

Which it was argued, was now impossible due to the vast number of both former and existing employees, causal employees and extended family members; a contention that left the House allowing the appeal by way of reference back to the Chancery Court for greater clarification, while also holding that in their opinion:

“[T]he trust is valid if it can be said with certainty that any given individual is or is not a member of the class.”

Once again in 1972, the court reviewed the position on the wording, and thereby meaning of trusts and powers, along with the validity of the trust in relation to section 164 of the Law of Property Act 1925, which stipulated that:

“1. No person may by any instrument or otherwise settle or dispose of any property in such manner that the income thereof shall…be wholly or partially accumulated for any longer period than one of the following…(a)the life of the grantor or settlor; or (b) a term of twenty one years from the death of the grantor, settlor or testator…” 

Law of Property Act 1925

And so with a thoughtful, albeit exhaustible, examination of the deed, the court held that a discretionary trust did exist, and that despite the 31 years since its execution, such an instrument was valid when called into purpose, which echoed the sentiment of the House when the court further held that the trust was valid on the principle that there were sufficient company records to show, and thereby establish, who was reasonably eligible for the benefit of the funds when distributed by the trustees, upon which the executors challenged the judgment before the Court of Appeal one final time.

Here, the executors argued that unless an individual could not be proven as falling outside the scope of the trust, the trust must fail, while the court reasoned that while operating within the bounds of practicality, the trustees had shown that they were equipped to trace staff records back to the inception of the company, and thereby allocate the majority of employees and their immediate relatives, whereupon the court conclusively dismissed the appeal, while simply holding that:

“[A] trust for selection will not fail simply because the whole range of objects cannot be ascertained.”

BURROUGH v PHILCOX

The intention to bequeath when drafting a well organised and thoroughly considered will, remains the deciding authority of the testator; and so, when perhaps vital elements to that redistribution are left wanting, the power falls to the court to compel the wishes of the deceased in as full a manner as possible, as was found in this potentially convoluted suit.

Having given tremendous thought to the lifetime of his estate, and the unavoidable dilemma of untimely deaths, the deceased had made express stipulations as to the execution of his legacy should his immediate  progeny die, while this caveat was made clear by the words:

“[I]n case my son and daughter should both of them die without leaving lawful issue, then for the said estates to be disposed of as shall be hereinafter mentioned (that is to say), the longest liver of my two children shall have power, by a will, properly attested, in writing, to dispose of all my real and personal estates amongst my nephews and nieces or their children, either all to one of them, or to as many of them as my surviving child shall think proper.”

And so, in the sad event that his two children were unable to live long enough to bear children, or oversee the disposition of his estate as he had wished, the matter was presented to the Court of Chancery to establish if when dying, the power to assign to those in vivo was relinquished, or if the estate was to remain in trust for the benefit of those now dead.

After much deliberation, and a reinvestigation of a number of arguable precedents, the court turned to Brown v Higgs; in which, it was held that within circumstances where those granted executory powers have passed, the will itself becomes a mere trust, and therefore:

“[T]he trustee having died without executing it, or transgressing it, or refusing to execute it, shall not prevent its being held an absolute benefit for the objects, with a power to give a preference.”

Brown v Higgs

Thus, the court held that where a will or codicil is deliberate enough to provide express use of its power, the court is granted proper authority to ensure that its instructions are followed both with judicial impartiality and honest justiciability, therefore the will was enforced and the proper class of beneficiaries shown due privilege, while the court also held that:

“[W]hen there appears a general intention in favour of a class, and a particular intention in favour of individuals of a class to be selected by another person, and the particular intention fails, from that selection not being made, the Court will carry into effect the general intention in favour of the class.”

MOORE v. ELMER

A promise to pay while absent of any consideration may at first blush appear to be enforceable, however the eyes of the law see things in quite a different light, as was found in this rather bizarre suit between a clairvoyant and the administrators of an estate.

For reasons best known to themselves, the plaintiff and former client had somehow entered into a bargain, whereby a written statement in January 1898 expressed that:

“In consideration of business and test sittings received from Madame Sesemore, the clairvoyant, otherwise known as Mrs. Josephene L. Moore on numerous occasions I the undersigned do hereby agree to give the above named Josephene or her heirs, if she is not alive, the balance of her mortgage note which is the Herman E. Bogardus mortgage note of Jan. 5, 1893, and the interest on same on or after the last day of Jan. 1900, if my death occurs before then which she has this day predicted and claims to be the truth, and which I the undersigned strongly doubt. 

Wherein if she is right I am willing to make a recompense to her as above stated, but not payable unless death occurs before 1900. Willard Elmer.”

And so upon his death, the plaintiff sued for recovery in the Hampden County Superior Court, while his various family members argued that the claim was void for want of consideration, after which the court dismissed the suit and the matter was argued again before the Massachusetts Supreme Court.

Here, the court turned first to Chamberlain v. Whitford, where it had held that:

“An executed and past consideration is not sufficient to support a subsequent promise. It is not enough to show that a service has been rendered, and that it was beneficial to the party sought to be charged, unless it was rendered at his express request, or under such circumstances that the law would imply a request.”

Chamberlain v. Whitford

While in Dearborn v. Brown the court had earlier held that:

“[T]he past performance of services constitutes no consideration even for an express promise, unless they were performed at the express or implied request of the defendant, or unless they were done in performance of some duty or obligation resting on the defendant.”

Dearborn v. Brown

To which, it had been evident that no money had been exchanged for the readings, nor any express terms set out during their meetings. And so when summarising the fruitlessness of the claim, the court finally relied upon Johnson v. Kimball in which it had later held that:

“An executed gift is neither consideration for an express contract nor a ground for implying one as a fiction of law.”

Johnson v. Kimball

Thus, the claim was one without merit; and so, the suit was again dismissed to the relief of the surviving parties and the dismay of a wanton clairvoyant, although one might have expected her to learn of the outcome prior to any litigation.

HUBBARD v. COMMONWEALTH

The willful if not reckless action of a drunken soldier lies central to a manslaughter charge that almost left the defendant facing imprisonment for something (i) he did not do and (ii) could not recall.

Having been temporarily released from military service during the tail end of WWII, the defendant was arrested for public drunkenness, and so too inebriated to stand trial, he was ordered by the county judge to spend time in jail, whereupon he became violently aggressive and refused to leave the court.

After falling to the ground, the defendant continued to resist the actions of the jailer, who after trying hard with others to get him up, left the room and collapsed of a fatal heart attack.

Upon which, the attending doctors later announced that his death had resulted from acute dilatation of the heart brought on by sudden physical exercise and excitement arising from the scuffle.

Tried in the circuit court of Jackson County, the jury found the defendant guilty of voluntary manslaughter subject to a prison sentence of two years; upon which, the defendant explained that he had no memory of the events and that the deceased was his friend.

Challenged before the Kentucky Court of Appeals, the court took steps to reevaluate the charge and determine whether the events were instead indicative of involuntary manslaughter; and so, turning first to Hopkins v. Commonwealth, the court noted how it had held that:

“If one unlawfully wounds another, and thereby hastens or accelerates his death by reason of some disease with which he is afflicted, the wrongdoer is guilty of the crime thereby resulting.”

Hopkins v. Commonwealth

While in Commonwealth v. Couch, it had also held that:

“Involuntary manslaughter is the killing of another in doing some unlawful act, but without intent to kill.”

Commonwealth v. Couch

However, in Livingston v. Commonwealth, the court had also held that when a blow is struck upon an individual with a pre-existing and potentially fatal illness:

“The blow is neither the proximate cause of the death, nor is it, though made by extraneous circumstances to accelerate it, linked with it in the regular chain of causes and consequences. A new and wholly independent instrumentality is interposed in the shape of the disease; and in contemplation of law, the death stroke is inflicted by the hand of Providence, and not by the hand of violence.”

Livingston v. Commonwealth

Upon which, the court noted that the defendant had not at any point, made actual physical contact with the deceased, a fact which was further compounded by the truth that the deceased had complained of ill-health that day, and yet chose to continue working in a familiar and frequently stressful environment, therefore the court abruptly reversed the previous judgment in full, while holding that:

“[T]o warrant a conviction of homicide the act of the accused must be the proximate cause of death….”

COMMONWEALTH v. COUCH

While there is a fine line between the deliberation of murder and recklessness of manslaughter, on this occasion the defendant found himself charged with the death of a complete stranger, roughly a year after his unlawful act had transpired.

In a moment of wanton stupidity, the now appellant took it upon himself to fire his pistols towards a public highway in the State of Kentucky; after which, a pregnant woman went into premature labour, due to the shock of hearing the gunfire. 

Following an abortive birth and prolonged illness resulting from the failed delivery, the woman sadly died, whereupon the appellant was indicted for her murder by the State.

Having been heard in the Perry County Circuit Court, the trial judge upheld the complaint against the charge, on grounds that the two incidents were separate and thus insufficient to sustain a conviction for murder, rather at best the appellant was guilty of the unlawful discharge of his weapons in a public place.

Taken to the Kentucky Court of Appeals, the court reviewed the facts, while reminding the parties that under the terms of his indictment, the court was empowered to convict anywhere between murder, involuntary manslaughter and manslaughter, while also referring to Sparks v. Commonwealth, in which the same court had held that:

“If a man, contrary to law and good order and public security, fires off a pistol in the streets of a town, and death be thereby produced, he must answer criminally for it, whether it be malum in se or merely malum prohibitum; and especially so when he knows, as in this instance, he is violating law.”

Sparks v. Commonwealth

However, in the later Hendrickson v. Commonwealth, the court had contrastingly noted that:

“Forcing a person to do an act which causes his death renders the death the guilty deed of him who compelled the deceased to do the act. And it is not material whether the force were applied to the body or to the mind; but, if it were the latter, it must be shown that there was the apprehension of immediate violence, and well grounded from the circumstances by which the deceased was surrounded; and it need not appear that there was no other way of escape; but it must appear that the step was taken to avoid the threatened danger, and was such as a reasonable man might take.”

Hendrickson v. Commonwealth

And so, in this instance the appeal court held that while the sound of gunfire had unquestionably caused the deceased to commence premature labour, any illness arising from complications associated with the birth could not be construed as a continuance of the shock, therefore the appellant was lawfully entitled to complain against the indictment, thus accordingly the court upheld the trial court judgment in full, while holding that:

“Involuntary manslaughter is the killing of another in doing some unlawful act, but without intent to kill.”

MARTIN v. HERZOG

Liability for negligence arising from a breach of statute is unquestionable in terms of culpability, however when both parties have acted beyond their prescribed rights, it becomes a matter of priority in reaching summary judgment.

In dusk of August 21 1915, a husband and wife were entering a stretch of road in a wagon, that whilst doing so on a bend, was unequipped with lights, as required by s.286 of the New York Highway Laws 1909, which explained that:

“Every motor vehicle, operated or driven upon the public highways of this state…shall, during the period from one-half hour after sunset to one-half hour before sunrise, display at least two lighted lamps on the front and on the rear of such vehicle…”

It was at this point that a car driven by the now appellant collided with the wagon, killing the respondent’s husband.

Upon litigation, the appellant remarked that he was unable to see the wagon, and thus had been straining to peer into the darkness at the time of the accident. In defence, the respondent argued that the inability to avoid the wagon constituted negligence under s.332(1) of the same Act, and which read:

“Whenever a person operating a motor vehicle shall meet on a public highway any other person riding or driving a horse or horses or other draft animals or any other vehicle, the person so operating such motor vehicle shall seasonably turn the same to the right of the centre of such highways so as to pass without interference.”

In the first instance, the jury upheld the respondent’s contention of negligent driving, while reducing the culpability of the deceased to that of contributory negligence when failing to upholster his vehicle with lights. The matter was then put before the Appellate Division, who reversed the judgment in favour of the appellant.

Challenged again, the New York Supreme Court examined the importance of statute, further noting that while both sections were essentially safeguarding the rights and lives of road users, the failure to install and use lights was by design, tantamount to absolute negligence, as had been found in both Massoth v. D & H Canal Co. and Cordell v. N.Y.C & H.R.R. Co.

It was also held that legislation is not something privy to the whims of a jury, regardless of how trivial such details might appear when taken in context, and that the misdirection of the trial judge was unlawful and in therefore in need of redress; hence, for these reasons the appellate court ruling was sustained and damages awarded to the appellant with costs, while the court reminded the parties that:

“A statute designed for the protection of human life is not to be brushed aside as a form of words, its commands reduced to the level of cautions, and the duty to obey attenuated into an option to conform.”

MILROY v LORD

When a man of standing sought to create a trust for the purposes of a relative’s benefit, he was careful enough to provide specific instructions to his trustee, but unfortunately erred in putting them into action.

A number of years after his death, the beneficiary challenged the assigned executor on grounds that his written desire for her to gain lawful receipt was sufficient enough to constitute an enforceable covenant and that the courts were inter alia wrong to deny it.

In 1852, the settlor drafted a deed-poll that enabled fifty shares of his stock held in the Louisiana Bank to be transferred to his associate (who had become his appointed trustee) on the proviso that under a number of specific conditions he was to hold the shares upon trust for the benefit of his beloved niece.

He also stipulated that during the time between his grant and the date of her marriage or his death, the trustee was to manage the trust and pay any profits arising from the dividend interest to the beneficiary.

During this period, the settlor also granted the trustee power of attorney over all of his financial matters, and so while it was possible for the trustee to complete the request, he never managed to fully execute transferral under the banking practice policy, which required the participation of either the settlor himself or a qualified solicitor, and where neither was found, that the power of attorney rested not with the trustee but the bank.

In the first instance, the presiding judge awarded that by virtue of the deed construction, a valid trust had existed, and that the fifty shares were to be reissued by the executor to the existing trustee, where they would be again held upon trust for the niece (as had been the case before the settlor’s death).

However, under appeal the Court took the equitable view that a legally incomplete gesture cannot be enforced as equity will not perfect an imperfect gift‘, and so held that it was impossible for the settlor to become a self-appointed trustee for the shares discussed.

Rather, it was declared that the funds were to be held upon trust by the executor until amendments could be made to the deed that provided for redistribution in the manner first intended, or until the trustee and beneficiary chose to take individual action against him, while the court reminded both parties that:

“[I]n order to render a voluntary settlement valid and effectual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him.”

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