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Certain Uncertainties of Trusts and Powers
Author(s): John Hopkins

Source: The Cambridge Law Journal , Apr., 1971, Vol. 29, No. 1 (Apr., 1971), pp. 68-102
Published by: Cambridge University Press on behalf of Editorial Committee of the
Cambridge Law Journal
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Cambridge Law Journal 2J> (1), April 1971, pp. 68-102.
Printed in Great Britain.
CERTAIN UNCERTAINTIES OF TRUSTS

AND POWERS
John Hopkins
1. Distinction between Trusts and Powers
" It is striking how narrow and in a sense artificial is the distinctio

... between ... trust powers and powers/*1 That distinction (what¬
ever it may have been) and its consequences have, in recent years, l
to a good deal of judicial bewilderment; the distinction still exists
but, after Re Baden,2 certain of its principal consequences ha
disappeared.
The traditional account of the distinction between a trust and a
power runs thus. A trust imposes a duty upon a trustee; a power
confers a discretion upon a donee. The former is imperative; the
latter is discretionary. Thus, should a trustee fail to discharge his
duty, the court will see to it that the duty is performed and will
compel performance. If, on the other hand, a donee fails to execute
a power, the property subject to the power will devolve on default
of appointment. The court will seldom interfere in the case of the
non-exerdse of any power and, generally, will do so only if an
improper purpose underlying the non-exercise is proved.3 And in
the case of a power of appointment the court will normally interfere
in an exercise of the power only on the ground of fraud, or excessive
or defective execution,4 whilst as to non-exercise of the power, it will
do so, for obvious reasons, only very rarely, and even then simply to
provide that the property subject to the power shall devolve on
default of appointment.5
From such elementary principles of law, certain obvious con¬
sequences appear to flow. In the case of a trust, all the potential
beneficiaries need to be ascertained—or to be ascertainable—sinee
** the Court of Chancery, which acts in default of trustees, must know
with sufficient certainty the objects of the beneficence of the donor
McPhail v. Doulton [1970] 2 W.L.R. 1110, 1125, per Lord Wilberforce. This
case, the appeal from Re Baden's Deed Trusts [1969] 2 Ch. 388, is henceforth
referred to as Re Baden.
[1970] 2 W.L.R. 1110.
See, e.g., Klug v. Klug [1908] 2 Ch. 67 and, generally, Kiraify, 17 The Convey-
ancer (n.s.) (1953), 285; Hawkins, 31 ibid. (1967), 117.
See Sugden, Powers, 4th ed., 1826, p. 503; Farwell, Powers, 3rd ed., 1916,
Chapters 6-8.
" If [the power] has not been exercised, it does not devolve upon the Court1*
Brown v. Higgs (1800) 5 Ves. 495, 501, per Sir R. P. Arden M.R.
68
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C.L.J. Trusts and Powers 69
so as to execute the trust,"6 p

being equity. Possibly for this
purpose trusts have been held
other hand, as to a mere powe
beneficiaries need not be know
although the power " is exercisa
provided that " of John Doe
easily enough whether he is or
bounty "9; under those circum
have sufficiently certain criteria
person is or is not within th
members of the class cannot be ascertained since the donee does
not have to ascertain them in order to exercise the power and sin
the court will not have to order equal division between the sever
members of the class.10
2. Mere Powers and Trust Powers
Apparently somewhere midway between trusts and powers, howe

is a tertium quid, the so-called "power in the nature of a trust
the classic description of which is Lord Eldon's in Brown v. Higg
But there are not only a mere trust and a mere power,
there is also known to this court a power which the party
whom it is given is in trusted with and required to execute;
with regard to that species of power, the court considers i
partaking so much of the nature and qualities of a trust, tha
the person who has the duty imposed upon him does n
discharge it, the court will, to a certain extent, discharge t
duty in his room and place.13
This faintly cryptic statement was amplified in Burrough v. Philcox
by Lord Cottenham L.C.:
When there appears a general intention in favour of a class,
a particular intention in favour of individuals of a class to
selected by another person, and the particular intention fa
6 Whishaw v. Stephens [1970] A.C. 508, 524, per Lord Upjohn. This case
appeal from Re Gulbenkian*s Settlements [1968] Ch. 126, is henceforth refe
to as Re Gulbenkian.
7 See Morice v. Bishop of Durham (1805) 10 Ves. 522; Re Astor's Settleme
Trusts [1952] Ch. 534; Re Shaw [1957] 1 W.L.R. 729, affd. [1958] 1 All E
245n., though cf. Re Denley's Trust Deeds [1969] 1 Ch. 373, p. 100, below.
8 Re Gestetner Settlement [1953] Ch. 672, 685, per Harman J.
• Ibid., 688.
10 See Re Gestetner Settlement at 688, disapproving Blight v. Hartnoll (1881
Ch.D. 294; see also Re Coates [1955] Ch. 495; Kilroy v. Parker [1966] I
309; Re Gulbenkian [1970] A.C. 508.
11 See Fleming, " Hybrid Powers," 13 The Conveyancer (n.s.) (1949) 20; Marsh
41 Trusts and Powers,'* 35 Canadian Bar Review (1957) 1060.
12 (1803) 8 Ves. 561, 570.
13 Emphasis supplied; see p. 96, below. n (1840) 5 My. & Ch. 72, 92.

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70 The Cambridge Law Journal [1971]
from that selection not being made, the Co

effect the general intention in favour of the cl
intention appears, the case arises ... of th
given as to make it the duty of the donee to
such a case, the Court will not permit the ob
to suffer by the negligence or conduct of the d
the property a trust for their benefit.
In other words, the so-called power in the n

regarded really as a trust, which masquerades
power—a wolf in sheep's clothing from the po
donee though, in some respects, after Re Baden
clothing. Until that decision, however, the pow
trust (henceforth termed trust power) was rega
the characteristics of a trust to such an extent t
a trust, all the objects of the trust power had t
at least, be ascertainable—presumably in order t
be able to divide the property between all mem
the event of the donee's failure to do so: " an i
the division of income or capital between such
as the trustees may select is invalid if the who
beneficiaries cannot be ascertained." 16 Thus, i
Commissioners v. Broadway Cottages Trust,1
power was held to be void for uncertainty s
objects could not be ascertained. As Jenkins
validity of the trust must be tested by considering
oneself whether the court would be able to control and execute the
trust if called upon to do so. That question must be answered by
reference to what might happen and not merely by reference to what
would be likely to happen." 19 For the same supposed reason, in Re
Leek,20 a trust for such persons as trustees should consider to have
" a moral claim" upon the testator was held to be void for
uncertainty for " the donee of the [trust] power must be in a position
to know all the objects of it." 2l
The reasoning in these cases does have a certain logical charm.22
15 [1970J2 W.L.R. 1110.

i« Re Saxone Shoe Co. Ltd.'s Trust Deed [1962] 1 W.L.R. 943, 950-951, per Cross
17 (1955J Ch. 20, henceforth referred to as the Broadway Cottages Trust Case.
is Ibid., 31.
19 Contrast Re Saxone Shoe Co. Ltd.'s Trust Deed (above) at 953, per Cross J.:
141 should have thought that the answer depended on what was probable and not
on what was theoretically possible"; see also Re Hain's Settlement [1961] 1
W.L.R. 440, 447-448, per Lord Evershed M.R.
20 [1969) 1 Ch. 563.
2i Ibid., 579, per Harman L.J.; see also Re H. J. Ogden [1933] Ch. 678, 682, per
Lord Tomlin.
22 " A mere power is a different animal from a trust": Re Baden [1970] 2 W.L
1110, 1119, per Lord Hodson.

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CLJ. Trusts and Powers 71
A trust is indeed mandatory

court. The court normally w
that of the trustees but will
the members of the class; if
ascertained at the outset, th
the trust will accordingly
reached in these cases can b
Baden,23 should be, in view
provide for an execution on
(i) Distinctions between Me

The distinction between
extremely fine (" very nice
Brown v. Higgs24). It is all
the " proper approach is to
apparently means " in orde
imposed or a power conferr
in Re Baden,2B " what to
distribution coupled with a
surplus, by accumulation o
trust for distribution coup
and accumulate or otherwis
of the distinction led to "narrow and technical distinctions . . . in
this chapter of the law,"27 but it was upon such very distinctions
that the validity of instruments depended. The extent to which the
distinctions gave rise to different—and legitimate—interpretations
may easily be gleaned from Re Baden itself. The instrument in
question provided for the transfer to trustees of property for the
benefit of a large company's staff, their relatives and dependants. It
provided further that "the trustees shall apply the net income of
the fund in making at their absolute discretion grants . . . in such
amounts at such times and on such conditions (if any) as they think
fit. . . . [They] shall not be bound to exhaust the income of any year
or other period in making such grants . . . and any income not so
applied shall be [placed in a bank or invested]." They were also
given power to raise capital in the event of the income not being
sufficient for their purposes.
23 [1970] 2 W.L.R. 1110.

24 (1800) 5 Ves. 495, 505.
25 Re Leek [1969] 1 Ch. 563, 581; see also Re Scarisbrick's Will Trusts [1951] Ch
622, 635, per Lord Evershed M.R.
26 [1970] 2 W.L.R. 1110, 1125.
27 Re Gulbenkian [1970] A.C. 508, 519, per Lord Reid; and see Re Leek [1967] Ch.
1061, 1073-1074, per Buckley J., for a penetrating analysis of them. See further
[1968] C.LJ. 211, 212.

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72 The Cambridge Law Journal [1971}
At first instance, Goff J.,28 approving the cl

and powers suggested by Buckley J, in Re Lee
between " the straight case of a trust [to distrib
power [of retention]"31 and the "quite . . .
provision for distribution of the whole or part of
by a direction that unapplied income shall b
then held that the instrument created a mere
not be void for uncertainty.32 The Court of Ap
less confident in drawing so clear a distinction
had drawn; Harman LJ.34 felt that "if ever
question, it was this one " and that " it ought t
to the validity of the provisions of the deed w
analysis of the language used . . . it should be
a trust or, a power." But both he and Karminsk
valeat quam pereat) concluded that a mere powe
Harman L.J. opining37 that if the deed wa
regarded that before him to be, ** the court is at
siderations on both sides seem evenly balanced,
which may effectuate rather than frustrate the se
The matter was accordingly remitted to the C
determination of the instrument's validity or o
on the other hand, was of opinion that the inst
question of construction " of some nieety," created
a power; the House of Lords unanimously u
judgment.39 All that can be said with certainty
that if there is an express gift over in default of
power will have been created; the mere existenc
gift over must of necessity negative the possib
duty, a trust, since the settlor or testator h
28 [1967] 1 W.L.R. 1457.

*• [1967] Ch. 1061, 1073-1074; see [1968] CLJ. 211.
3° At 1465.
31 See the Broadway Cottages Trust Case [1955] Ch. 20; Re Sayer [1957] Ch. 423;
Re Saxone Shoe Co. Ltd.'s Trust Deed [1962] 1 W.L.R, 943; Re Hain's Settle¬
ment [1961] 1 W.L.R. 440.
32 See Re Gestetner Settlement [1953] Ch. 672; and see further, pp, 83 ff., below.
33 [1969] 2 Ch. 388.
34 Ibid., 397.
33 Who was "conscious that [his] views [had] changed with almost alarming
frequency . . . during the helpful and persuasive arguments which we have heard
on both sides."
36 Ibid., 400, 402.
37 Ibid., 399; see also Winter v. Peratt (1843) 9 Cl. & F. 606, 687, per Lord
Brougham; Kilroy v. Parker [1966] I.R. 309, 321, per Budd J.
38 [1969] 2 Ch. 388, 400.
39 See [1970] 2 W.L.R. 1110, 1115, per Lord Hodson: "a complete disposition
with a primary duty to distribute, a trust for the whole period of its existenc
with a power to carry forward from year to year." See also ibid., 1121, per Lord
Guest; 1126, per Lord Wilberforce (with whom Lord Reid and Viseount Dilhorn
concurred).

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contingency plans which ar

distributed. Yet even the
subject of judicial differenc
in the absence of an express
of previous decisions can be
cases to classify the instr
several inclinations. Yet "
to commonsense," 43 " distast
though the matter perhaps
upon it.
(ii) The Nature of Trust Powers: Brown v. Higgs\ Burrough v.

Philcox
In view of the foregoing, a further inquiry into the nature of trust

powers may be permissible and here, possibly, a certain confusion
in the cases may be detected. For trust powers, in general, may,
perhaps, be not quite what they appear to be, at least in most, if not
all, cases. The usual treatment of them is to be found in the now
hallowed description by Lord Eldon L.C. in Brown v. Higgs, as
amplified by Lord Cottenham L.C. in Burrough v. Philcox.** They
are mandatory; the donee (trustee) is under a duty to execute them
and if he does not do so, then the court will. But this is not the
necessary analysis of trust powers and,47 upon further examination of
the above cases, it may, indeed, not be the only analysis of the Lords
Chancellors. The facts of Brown v. Higgs, so far as material to this
question, were that the testator bequeathed his leasehold estate at
Brize Norton to his nephew, John Brown; he " authorizefd] and
empower[ed his] said nephew . . . to dispose of [the rents thereof] in
the following manner, . . . to such children of [his] nephew Samuel
Brown as [John Brown] shall think most deserving and that will
make the best use of it or to the children of [his] nephew William
Augustus Brown." Nephew John died without having apjxunted to
any of the objects. The testator's widow married one Higgs; the
case concerned a claim by the children of Samuel against the widow
who, herself, claimed the property as having been subject to a mere
« Contrast [1967] Ch. 1061, 1076, per Buckley J., with [1969] 1 Ch. 563, 580, 582,
per Harman, Russell L.JJ.
41 See Re Leek, n. 29 above.
42 Re Baden [1969] 2 Ch. 388, 397, per Harman LJ.
43 Re Gulbenkian [1968] Ch. 126, 134, per Lord Denning M.R.
44 Re Saxone Shoe Co. Ltd:s Trust Deed [1962] 1 W.L.R. 943, 955, per Cross J.
45 Re Hain's Settlement [1961] 1 W.L.R. 440, 445, per Lord Evershed M.R.; see
also Re Baden [1970] 2 W.L.R. 1110, 1125, per Lord Wilberforce.
46 See p. 69, above.
4* See Unwin, 26 The Conveyancer (n.s.) (1962), 92; Pettit, Equity and the Law
of Trusts, 2nd ed., 1970, p. 23.

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power of appointment exercisable by the late John

now, on failure of the power, devolved upon her. O
the children of Samuel asserted that Uncle John
upon him a trust power which he had failed to ex
court should execute it in his stead. The widow, on
averred that the will had created a mere powe
virtue of its non-exercise, upon the death of the d
came first before Sir R. P. Arden M.R.,48 who st
issue was whether this was a
gift to all the children, or to such of them only as the testator's

nephew, John Brown, who died in his life should appoint. If the
former can be collected as his intention, the death of the trustee
will make no difference. If that intention cannot be collected,
the selection not having taken place, whatever the reason of its
failing may be, the bequest must fail with it. Upon the true
construction of this will I am of opinion that . . . he gives it to
the children of Samuel Brown or of William Augustus Brown,
with a power to John Brown to select any if he think fit and to
exclude the others; and it is too much to contend that nothing
is intended for them exclusive of the appointment of John
Brown. The fair construction is, that at all events the testator
meant it to go to the children, and these words of appointment
he used only to give a power to John Brown to select some and
exclude the others.
Accordingly, the children of Samuel and William took equally as

on default of appointment.
Such statement permits of several interpretations. It might mean,
first, that the donee of the power (John Brown) was made fiduciary
of the power, and that when he failed to discharge his duty to appoint,
the court intervened and ordered equal distribution between the
several members of the class. Secondly, it might mean that the
testator had made a gift to all the members of the class, subject to
a power of exclusion of one or more of such members being exercised
by John Brown50 or, thirdly, it might mean that the will simply gave
to John Brown a power of appointment in favour of certain persons,
in whose favour an implied trust arose upon the failure of John
Brown to exercise the power. (Upon the facts of Brown v. Higgs,
an identical result would be reached whichever of the above analyses
might be preferred.) The difference in approach between the first
and the second and third of the above is well summed up by Porter
M.R.81: "In the former class of cases, the court acts by executing
the power in lieu of the donee; in the latter simply by giving effect
« (1799) 4 Ves. 708.

** Ibid., 718-719.
so See Re Leek [1967] Ch. 1061, 1073-1074, per Buckley J.
si Moore v. fo/io/r (1887) 19 L.R.Ir. 499, 502.

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to the estate implied in the w

to Farwell,52 "it may be
distinction " between them.
tended not to draw any distin
in most modern cases that
the class has been imposed u
have been in the mind of S
is suggested both by his rem
also by his remarks at the r
decree ought not to be alte
the question is, whether [
the question arises, is to
Brown a power if he thinks
children . . ., or whether
thing more or less than a
single out any he might th
in trust for those children
He concluded
that it is a trust, and not a power in John Brown; and that his
non-exercise of that power or the circumstance of his being
incapable of exercising it, will not prevent the objects of the
testator's bounty from taking in some manner; though the power
of distribution on account of the death of the trustee cannot
now be exercised.
The case next came before the Lord Chancellor, Lord Eldon,57
who, in upholding the decree of the Master of the Rolls, formulated
the now classic account of trust powers and continued that
the principle . . . is, that if the power is a power, which it is the
duty of the party to execute, made his duty by the requisition
of the will, put upon him as such by the testator . . . he is a
trustee for the exercise of the power, and not as having a
discretion, whether he will execute it or not; and the Court
adopts the principle as to trusts, and will not permit his negli¬
gence, accident or other circumstances, to disappoint the interests
of those for whose benefit he is called upon to execute it.
No full report exists of the upholding of the decree of the Lord
Chancellor by the House of Lords.58
" Powers, 3rd ed., 1916, p. 527.

53 e.g., the Broadway Cottages Trust Case [1955] Ch. 20; Re Sayer [1957] Ch. 423;
Re Hain's Settlement [1961] 1 W.L.R. 440; Re Saxone Shoe Co. Ltd.'s Trust
Deed [1962] 1 W.L.R. 943; Re Leek [1969] 1 Ch. 563; Re Baden [1970] 2
W.L.R. 1110, 1115, 1121, per Lords Hodson, Guest. And cf. Farwell, op. cit.,
p. 530: " the distinction is not important, as the result is the same in both
cases."
54 (1799) 4 Ves. 708.
55 (1800) 5 Ves. 495. 56 jtid., 500
57 (1803) 8 Ves. 561. ss See (1813) 18 Ves. 191.

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It appears likely that in the several judgmen

Higgs, there is an almost imperceptible change in
analysis of Sir R. P. Arden M.R. appears to begin
creation of a mere discretionary power with an impli
of all members of the class if the power be not ex
second judgment of the Master of the Rolls is an anal
to incline towards the existence of a fiduciary duty t
appears to have been accepted by Lord Eldon, An
Philcox,*0 there may well be a like blurring of the d
the two approaches. There, a testator directed th
son should have power to dispose, by will, of
" amongst my nieces and nephews, or their child
one of them or to as many of them as [he] shall t
surviving son did not, by his will, so appoint.
trust for the nieces and nephews had been create
should take the property equally, Lord Cottenham
his opinion that in such a case as this, " it is the d
to execute the power"—an interpretation of the
similar to that of Lord Eldon in Brown v. Higgs.
Cottenham had formulated the matter thus:
The question is whether these nieces and ne

children take any interest in the property, inde
power; that is, whether the power given to
mere power, and the interests of the nephews
their children were, therefore, to depend upon th
or whether there was a gift to them, subject o
of selection given62
—a formulation very different from that which he h
shortly afterwards in the same case.
(iii) Further Cases

As suggested above, in most circumstances, it is
any practical difference whichever of the two view
Thus, if T left property to X "for such of A
he shall determine," and X died without having a
member of the specified class, whether one re
under a fiduciary duty to appoint within the clas
regarded T as having, by inference, created a trust
C and D, subject to X's power, would be immat
analysis, the court would doubtless order equal dis
59 For a like change in a modern case, see the Broadway Cott

Ch. 20, 30, 32, 35, per Jenkins LJ.
•• (1840) 5 My. & Cr. 72.
61 Ibid., 92; see p. 69, above. « ibid., 89, emphasis supplied.

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them. Doubtless also, for this reason, the courts have seldom
distinguished clearly between the two views, though an awareness of
the distinction has, upon occasion, been apparent. Thus, in Wilson v.
Duguid,63 where the donee of a power had not appointed conformably
with the terms of the power ("unto and amongst such of his
children . . . as he should by writing appoint"), Chitty J. stated,64 in
ordering equal division of the property between the children, " there
is a plain implication arising from the words ... of a trust in default
of appointment for all the children.... I do not think it is necessary
to refer to the other technical grounds put forward . . ., namely, that
there was a power which it was the duty of the trustee to execute."
There is, indeed, a long line of cases in which the court, often with
difficulty, has found an implied trust upon non-exercise of a power.
As Buckley J. put it in Re Wills' Trust Deeds**
[those cases] really turn on the question whether on the
particular facts of each case it was proper to infer a trust in
default of appointment for the objects of the power. The court
did not and, I think, could not compel the donee personally to
execute the power but carried what it conceived to be the settlor's
intention into effect by executing an implied trust in default of
appointment.
And again,66 " the problem in . . . cases where there is no express
trust in default of appointment is whether such trust should be
inferred." *7
This, it is submitted, is the proper explanation of Harding v.
Glyn,68 in which such a trust was held to have been created; upon
the inevitably very fine question of construction, dubious cases may
easily be collected. Thus, Duke of Marlborough v. Lord Godolphin,**
where Lord Hardwicke was of opinion that no trust had been created,
appears to be inconsistent with Harding v. Glyn ** but, as Sir R. P.
Arden M.R. pointed out in Brown v. Higgs,70 the decision may and
should be regarded simply as a matter of construction.71 If the
instrument which creates a power provides expressly for a gift over
in default of appointment, then of course it is not open to the court
to find any implied trust for the objects of the power.72 But, con-
*3 (1883) 24 Ch.D. 244.

64 Ibid., 249.
•* [1964] Ch. 219, 230.
«e Ibid., 236.
*7 See also l?e Llewellyn's Settlement [1921] 2 Ch. 281, 285, per Russell J.; Re
Arnold [1947] Ch. 132, 134, per Wynn-Parry J., approving Wilson v. Duguid
(above) and Lambert v. Thwaites (1866) L.R. 2 Eq. 151.
« (1739) 1 Atk. 469.
«» (1750) 2 Ves.Sen. 61.
™ (1800) 5 Ves. 495, 506.
** See also Salusbury v. Dentofi (1857) 3 K. & J. 529, 535, per Page-Wood V.-C.
Wilson v. Duguid (above) at 249, per Chitty J.
72 See pp. 72-73, above.

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versely, the fact that no such express gift ove

instrument, does not mean that an implied trus
found. Thus, in Re Weekes1 Settlement,73 a test
interest in property to her husband with a " po
by will amongst our children " and the husband
exercised the power. An argument by the child
v. Higgs, to the effect that a trust should be im
was rejected by Romer J. The decision has
Farwell,74 who states that "if there is a pow
certain objects but no gift to those objects, and no
of appointment, the court implies a trust for or a
equally, if the power be not exercised," and con
Re Weekes7S Romer J.
expressed the view that none of the [earlier] cases decided that a
gift in default must be implied without some expression of such
an intention to be found in the instrument creating the power ...
it is submitted that this decision is inconsistent with all the
authorities except Healy v. Donnery,75 and cannot be supported
With respect, this interpretation of Re Weekes7S itself is difficult
to support. It ignores the significant change in construction of trus
which took place in Lambe v. Eames,7* since which time the court
has indeed required " an indication that the [settlor or testator] d
intend the class to take or some of the class to take." And it is
difficult to believe that Farwell meant, by an " implied " trust in this
context, a trust imposed, or construed, by the court in order to prevent
" undue enrichment" on the part of those who would otherwise take
on default of appointment.77 It may be noted, further, that Re
Weekes73 has been followed twice78 and that, since that time, the
question as to whether a trust for the members of the class is to be
implied has been purely a matter of construction.79
« [1897] 1 Ch. 289.

*« Op. cit., 528, 530.
75 (1853) 3 Ir.C.L.Rep. 213, 215, per Pennefather B.
7« (1870) L.R. 10 Eq, 267; (1871) L.R. 6 Ch.App. 597; and see Re Adams and the
Kensington Vestry (1883) 27 Ch.D. 394, though cf. Shelley v. Shelley (1868)
L.R. 6 Eq. 540, Re Steele's Will Trusts [1948] Cb. 603.
^ Cf. Ames (1892) 5 Harvard Law Review, 389.
7* See Re Combe [1925] Ch. 210; Re P.erowne [1951] Ch. 785. And see, generally,
Unwin, 26 The Conveyancer (n.s.) (1962) 92, 94. See also Re Sayer [1957]
Ch. 423, 436-437, per Upjohn J.
7» See note 67 above, also the Broadway Cottages Trust Case [1954] 1 W.L.R. 659,
667, per Wynn-Parry J.; [1955] Ch. 20, 35, per Jenkins LJ. Hawkins (31 The
Conveyancer (n.s.) (1967) 117, 122) has suggested that "the reason why, before
Re Weekes, a trust in default was so often implied was because the power in the
will was a non-exclusive one. If exercised, all the objects would have had no
benefit until the passing of Lord Selborne's Act [37 & 38 Vict. c. 37]. If not
exercised, the fact that the power was non-exclusive by itself indicated that all the
objects should beneat." (See also Bennett v. Honyivood (1772) Amb. 708, p. 94,
below.) This may well be so, but it does not affect the argument advanced here.

213.255.128.166 on Thu, 13 Apr 2023 16:10:44 UTC
Now when the analysis of t

given to the donee followed b
the class in the event of non-a
be that though the ultimate tr
which precedes it need not
primarily in relation to fam
difficulty. Thus, in the case
power to appoint to such of
appoint, but X died without
equal division between the s
other hand, a slightly diffe
property was left to X with p
relatives as he should determ
exercised the power. Prima
for uncertainty (or, had the
as a fiduciary power, it, prim
a conclusion was, however,
described by Stirling J. in R
Salusbury v. Denton?4, prop
the testator's widow " to be
testator's relatives as she m
Wood V.-C.85 to amount t
default of appointment, for
the implied gift to the relati
the widow not having exercis
theless, the Vice-Chancellor h
widow might have appointed t
should be for the benefit of
of the Statute of Distribut
further. Thus, in Re Caplin,
widow for her life and afte
relatives or friends of his w
appointment was made by t
implied trust arose in favou
80 See, generally, Re Gestetner Set

81 See Brown v. Higgs, Burroug
John. 656; Walsh v. Wallinger (1
7 Ves. 125; Penny v. Turner (184
627; Butler v. Gray (1869) L.R. 5
743. As to the problems of the
after the death of the testator,
W. Grant M.R.; Lambert v. Th
Theobald, Wills, 12th ed., 1951, pa
82 [1894] 3 Ch. 565, 575.
83 Cf. Re Sayer [1957] Ch. 423, 43
»* (1857) 3 K. & J. 529.
8« Ibid., 535. se (i865) 2 Dr. & Sm. 527.

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80 The Cambridge Juaw Journal [1971]
included within the Statute of Distribution, the word "

read as synonymous with " relatives." 8T
A like problem had arisen in the eighteenth centu
to trusts and legacies for "poor relations." The c
matter of that period has rightly been described as
bog of conflicting decisions, made more intractable
incompetent reporting," 88 but, here again, " the balanc
suggests that the Statute of Distribution, 1670, . . . w
* the best measure for setting bounds to such general w
it would be endless to find out everybody that wer
More recent discussion of the so-called " poor relat
tended to turn upon the possibility of their being ch
but from the present viewpoint, they are of some
they provide a neat illustration of the court's placing an
convenient, limit upon an otherwise possibly illimi
and thus, probably, saving many such a legaey from ex
From the foregoing, the following emerges. That i
be construed as a mere discretionary power with an
default of appointment in favour of the several m
discretionary class, few such instruments will fail f
Even though the class in question may well be vagu
will be able to exercise the power during his life or
fails to do so, in an appropriate case,93 the court ma
the implied trust which then arises from extinction,
the power has not been exercised and the class in w
implied trust arises is too vague that the trust need fai
On the other hand, if a trust power be regarded as one
a mandatory duty upon the donee, great difficulty
objects of the class are particularly vague and it m
the instrument will be void for uncertainty ab init
did not arise in any particularly acute form until r
as indicated above, whether this analysis or its
adopted for trust powers, in practice made little dif
87 See also Harding v. Glyn (1739) 1 Atk. 469; Mahon v. Sava

Lef. 111.
ss Gareth Jones, History of the Law of Charity 1532-1827, 1969, p. 260.
a* Ibid.
90 See Gareth Jones, op. cit., pp. 260-262; Mahon v. Savage, above; Attorney
General v. Price (1810) 17 Ves. 371; Re Scarisbrick's Will Trusts [1951] Ch. 62
«i See Attorney-General v. Pr/ce, above, at 374, per Sir W. Grant M.R.
92 As to the general question of certainty of objects, see p. 86, below.
93 See the " relations " cases above. In the Broadway Cottages Trust Case [195
Ch. 20, 33, Jenkins L.J. regarded these cases as sui generis and held that normally
" the court cannot mend the invaiidity of the trust by imposing an arbitrary
distinction amongst some only of the whole unascertainable class." Whether
the trust in that case was necessarily invalid, however, is not clear: see p. 90.
below. And see Kilroy v. Parker [1966] I.R. 309, 322-323, per Budd J. Cf. Re
Gulbenkian [1970] A.C. 508, 524, per Lord Upjohn.

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(iv) Inland Revenue Commiss

The problem arose in acute
in 1953, had vested in trust
applied for the benefit of
beneficiaries. The instrumen
instance94 to have created a
was admitted by all parties,
effect upon the donee of th
principle . . . is that an im
fund (whether capital or in
among a class or such mem
depends for its validity on
class capable of ascertainm
is valid; if the answer is no
As to the meaning of the
Wynn-Parry J. relied upon
judge at first instance) in Re
had been made to Sir H. Sam
such political federations or
their objects or one of th
principles in politics as he s
in such shares or proportion
held98 the gift to be valid s
there is such uncertainty in th
for the selector to determine from which constitutions he is to
select."99 These words Wynn-Parry J. interpreted1 to mean that
" if the selector can draw up a complete list of objects from whi
he is to select, then there is certainty and the trust is good; if h
cannot do so, the trust is void for uncertainty." The trust in th
Broadway Cottages Trust case2 was thus held to be void, the firs
case of this kind to be so decided,3 and the decision was upheld i
the Court of Appeal,4 where Jenkins L.J. (who gave the judgmen
of the court), in approving the finding of Wynn-Parry J. appear
»* [1954] 1 W.L.R. 659, 664; see also ltmes V. Harrison [1954] 1 W.L.R. 668, 67
per Wynn-Parry J.
*5 An admission seized upon in Re Hoopefs Settlement (1955) 34 A.T.C. 3 by
Danckwerts J. and by Wynn-Parry J. himself in Re Eden [1957] 1 W.L.R. 7
a* [1954] 1 W.L.R. 659, 665.
•» [1933] Ch. 678.
98 ibid., 683-684.
9e Sir H. Samuel who, upon this occasion at least, did not sit upon the fence,
ioformed the court that he would be able to provide an exhaustive list of
such federations and bodies.
i [1954] 1 W.L.R. 659, 664.
2 [1955] Ch. 20.
3 See Re Hain's Settlement [1961] 1 W.L.R. 440, 446, per Lord Evershed M.R.
< [1955] Ch. 20.

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to adopt as his ratio decidendi the argumen

Crown,5 which may be summarised thus: th
the trustees a mandatory duty which could no
court since some members of the class were admitte
able; for the same reason, a trust in default of
not be implied, nor could the rule in Saund
invoked; the situation in which the trustees wo
considered, unlikely though any such reluctance
those circumstances, the court would be unable
since it would be unable to divide the property
members of the class. Therefore, it must fail
further argument that the instrument be cons
summarily rejected, for though the instrument's f
distribution between unascertainable persons w
uncertainty, the direction for distribution of inco
could properly have been construed as a power
of the court, " We do not think that a. valid po
of an invalid trust."8 With respect, this co
necessarily follow since, as suggested below, th
principle why the trustees should be restraine
property to such of the ascertained objects as th
(It may be noted that the argument of the Cour
have been the true ground for decisions in w
maintenance of specific animals have been up
appear to be no reason why non-charitable p
have no cestui que trust should not be upheld i
courts have, in recent years, declined to do
reasoning led to like decisions in several later cas
It is fair to state that a number of eminent mem
have been, at the very least, irritated by suc
Evershed M.R. put it in Re Hairis Settlement,1
5 See Re Gulbenkian [1970] A.C. 508, 521, per Lord Upj

e (1841) Cr. & Ph. 240.
7 " 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" [1955] Ch. 20, 35-36, per
Jenkins L.J.
« Ibid.
9 See Re Dean (1889) 41 Ch.D. 522 and see Morris and Leach, The Rule agains
Perpetuities, 2nd ed., 1962, pp. 309, 312.
" See Re Astofs Settlement [1952] Ch. 534; Re Shaw [1957] 1 W.L.R. 729; Leahy
v. Attorney-General for New South Wales [1959] A.C. 457; Re Endacott [1960
Ch. 232. See also Morris and Leach, op. cit., p. 320. But cf. Re Denlefs
Deed Trusts [1969] 1 Ch. 373.
n E.g., Re Sayer [1957] Ch. 423; Re Saxone Shoe Co. Ltd.'s Trust Deed [1962] 1
W.L.R. 943; Re Leek [1969] 1 Ch. 563; see also Re Baden [1969] 2 Ch. 388,
402, per Russell L.J. (C.A.), (1970] 2 W.L.R. 1110, 1117, 1122, per Lords
Hodson, Guest.
i2 [1961] 1 W.L.R. 440, 447; and see p. 73, above.

213.255.128.166 on Thu, 13 Apr 2023 16:10:44 UTC
quite plainly been . . . rel

naturally reluctant to hold) t
ately made is and was from
a sense, Lord Denning M.R.
he suggested that " trust powe
a mandatory duty upon the
with mere powers.
Before, however, some acco
certainty of objects in mere p
powers cases offered, it sho
Broadway Cottages Trust cas
approved by the House of L
Upjohn, with whom Lords H
Donovan concurred, stated 17 t
in default of trustees, must kn
of the benevolence of the do
class] must be defined as to
it." And he continued18: " W
I cannot myself see how, con
apply to the execution of a tru
permissible exercise by the d
that would defeat the intent
3. Certainty of Object
After the Broadway Cottages T
power would be void for unc
could not be drawn up. On t
power, the position was thou
origo of the modern law on th
J. in Re Gestetner Settlemen
13 See Re Hooper's Settlement (1955) 34 A.T.C. 3; Re Rank, The Times, 23

February 1955; Re Eden [1957] 1 W.L.R. 788.
" Re Gulbenkian [1968] Ch. 126, 134. " [19:55] Ch. 20.
16 [1970] A.C. 508.
" Ibid., 524, and see [1969] C.L.J. 30, 32.
is [1970] A.C. at 525.
19 Cf. Lord Denning M.R. and Winn L.J. in the Court of Appeal.
20 But cf. Re Baden [1970] 2 W.L.R. 1110, 1131, per Lord Wilberf
2i [1955] Ch. 20.
22 [1953] Ch. 672. It may be noted, however, that the opinion o
Re Gestetner Settlement was anticipated by some years by the Su
the Republic of Ireland in Brown v. Gregg [1945] I.R. 210 whe
valid a power to distribute " amongst such of [the testator's] Ir
[his sister] shall see fit," Murnaghan J. stated, at 229: " It i
necessary for the valid exercise of a power of appointment that t
be able to range in his mind every person capable of taking un
It is sufficient if the person chosen as an object comes prope
description of the class."

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tending Re Park23 and Re Jones24 and disapprovi

v. Hartnoll925 the learned judge held2* that " a p
although it is exercisable in favour of an indefinite c
case of such discretionary power for an indefinite
it does not seem to me that there is any authority
to say that [it] is bad. In fact there is no diffic
as has been admitted, in ascertaining whether any
is a member of the specified class. Of course if
ascertained the matter would be quite different
or Richard Roe it can be postulated easily enou
or is not eligible to receive the settlor's bount
uncertainty insofar as it is quite certain wh
individuals are objects of the power.27
As has been pointed out elsewhere,28 there is a
in the words of Harman J. They could mean that a p
if it can be said with certainty that any given pos
Roe, fails within the class of objects, or that a po
one person can be found—or even postulated—who
in the class. Neither view has lacked propone
Gresham's Settlement29 (which involved a power c
any person "by or with whom I may have be
residing"), Harman J. himself, after a devastating
strangely tortuous clause/' held30 the power to be vo
since even " giving the most benevolent meaning
can . . . there must be a number of persons ,.. of
be postulated that they were (or were not) within
On the other hand, in Re Gibbard32 (which inv
for such of " my old friends " as he should appoi
holding the power valid, stated33 that ** old frien
ciently precise test in the sense that there is no diff
cases where claimants might come along and
question that they would be eligible to use that e
mist which surrounded the uncertain question of cer
shortly afterwards became impenetrable fog, for in R
23 [1932] 1 Ch. 580.

24 [19451 Ch. 105.
25 (1881) 19 Ch.D. 294.
26 [1953] Ch. at 685.
27 Ibid., at 688; see also Re Coates [1955] Ch. 495, 497, per Roxburgh J.
28 See [1968] C.LJ. 211, 215.
29 [1956] 1 W.L.R. 563.
so ibid., 577.
3i See also Re Allan [1958] 1 W.L.R. 220; Re Sayer [1957] Ch. 423.
32 [1967] 1 W.L.R. 42; see also Re Coates [1955] C . 495.
33 [19671 1 W.L.R. 49.
3* See also Re Hain's Settlement [1961] 1 W.L.R. 440, 445, per Lord Evershed
M.R.; Fawcett Properties v. Buckingham C.C. [1961] A.C. 636, 693, per Lord
Jenkins. ss [1967] Ch. 1061.

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C.LJ. Trusts and Powers 85
J., at first instance, purport

Re Gresham.37 He was app
Denning M.R., Danckwerts,
when Re Leek35 itself reache
Sachs L.JJ.), Buckley J. was
might have been forgiven fo
really depended upon the com
given case and it would, accor
Re Denley's Deed Trusts40 an
crying a plague upon both h
and upholding the instrument
But at least in reference to
light was shed by the House
concerned a power similar in
declared void for uncertai
judgment of the House of Lo
Gresham,43 was that of Lord
Guest concurred) who disagre
Re Gestetner*5 since "I do no
in the least degree," and who w
and borderline cases may occu
point. If the [donees] feel dif
to whether a particular person
Chancery is available to solve
will not be void for uncertain
so vague that one simply c
settlor's bounty " is within it
™ [1967] 1 W.L.R. 42.

3* [1956] 1 W.L.R. 573.
3* [1968] Ch. 126. See, in especia
can say of any particular person t
is good.** Re Gresham was expres
*• [1969] 1 Ch. 563. See Sachs L.J
initial tendency to agree with
Gulbenkian (above), he " at once f
to a colony of outcast heredes
Denning M.R. and Winn LJ. migh
4Q [1968] 1 Ch. 373.
41 [1968] 1 W.L.R. 681.
42 [1970] A.C. 508, and see [1969]
43 [1956] 1 W.L.R. 573.
44 [1970] A.C. at 522.
45 in Re Gresham at 578, Harman
uncertainty, that he was giving "
that he could.
46 [1970] A.C. at 523,
*i See also Lord Reid at 518: " If the classes of beneficiaries are not defined with
sufficient particularity to enable the court to determine whether a particular
person is, or is not, on the facts at a particular time within one of the classes,
then the power must be void for uncertainty."
48 ibid., 525.

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that since the donees " or the court must be able to

who is within and who is without the power,...
to accept the broader proposition advanced by
and Winn LJ." in the court below.49 Lord Dono
" while incline[d] to share [Lord Upjohn's] view
[his] opinion " upon the approach of Lord Denn
a degree of confusion and uncertainty in the matte
4. Certainty of Objects in Trust Power

It was suggested above that most trust powers
interpreted as mere powers with an implied trust i
ment, or as the imposition of a mandatory duty
According to traditional reasoning, such implied
duty will be void for uncertainty if all possible
ascertained first, because the objects of the trus
must be known in order to enable such enforcemen
the trust terminated under the rule in Saunders
enable the court to execute the trust in the event o
so to do.52 Recently, however, an assault has bee
old orthodoxy; the extent of judicial criticism o
cases has already been noted and Lord Denning
kian 53 was especially critical, though the House
accepted it with the sole dissentient voice of L
year afterwards, in Re Baden,55 by a bare majo
Lords rejected it. Two members of the House in
Hodson and Guest) dissented and restated the tr
Re Gulbenkian.56 The views of Lord Wilberfor
Reid and Viscount Dilhorne concurred, prevailed
late upon what the result would have l>een had
sitting. Whether the old orthodoxy or the new c
fact that the House of Lords appears to have cha
collective shoe overnight cannot fail to cause a
raised.
A convenient starting point for an analysis of th
the judgment of Lord Reid in Re Gulbenkian wh
One argument as I understand it, is that b
instrument in that case] is admitted to be a mer
imposes no duties on [the trustees] at all. I fin
understand. It is a power given not to the individuals who
49 See [1968] Ch. 126, 134, 138. so [1970] A.C. 508, 526.
51 (1841) Cr. & Ph. 240.
52 See pp. 81-83, above.
« [1968] Ch. 128, 134.
54 [1970] A.C. 508. 55 [1970] 2 W.L.R. 1110.
56 [1970] A.C. 508. 57 jbidw9 518.

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happen also to be trustees,

trustees duly assumed or
it must foUow that the
capacity. They are given
* absolute discretion' mus
It may be that when a m
under no duty to exerci
should exercise it. But wh
[as will normally be the c
must be different. A sett
his trustees must be relyin
that they cannot simpl
consider whether it ought
In other words, the line

already blurred, is in dan
analysis. According to a re
problem here is that the tw
ployed in vastly different
situations do not divide neat
with their attendant conseq
one and elements of the o
likely to be a trustee; he w
consider whether or not to
John Doe or Richard Roe.
Harman J. opined in Re Ge
tribute, but only a duty t
" not see here that there is
trustees, before parting w
whole field, and to conside
than B."60 Thus, by consid
class as could be ascertaine
would be discharged.
Yet the donee of a trust po
a fiduciary. Why should he
duty in the same manner?
grounds of convenience, sho
field before appointing to
answer, the court, in consid
consider the situation wh
event of the donee-trustee
position to divide the proper
why, assuming, for the mom
58 J. D. Davies, Annual Surve

Farwell, Powers, 3rd ed., 1916,
« [1953] Ch. 672, 688.
60 Emphasis supplied.

213.255.128.166 on Thu, 13 Apr 2023 16:10:44 UTC
know all the members of the class, need it be n

all at the outset, assuming that there is a trus
act in favour of persons fairly and squarely w
what if all members of the class are ascertained—or are ascertained
initially, but it later becomes impossible to identify them? Probab
one of the grounds upon which Lord Eldon held in Morice v. Bisho
of Durham 62 the gift to the bishop (" to such objects of benevolen
and liberality as [he] in his own discretion shall most approve of ")
be void was that the possible objects, capable of enforcing the tru
were too indefinite. But the bishop was willing and able to carry
the trust; he had a discretion as to the persons to whom he mig
decide to appoint and he would have no difficulty in so appointin
Yet Lord Eldon did hold that the trust should fail ab initio, and th
property devolve by way of resulting trust to the next of kin.63
Professor Scott points out,64 however,
it might well have been held that the bishop had a power to di
pose of the property for the designated purpose even though
could not be compelled to do so. It might reasonably have be
held that the next of kin should be entitled to the property if, bu
only if, the bishop should fail to carry out the direction of t
testatrix. In other words, it might well have been held that
resulting trust in favour of the next of kin should arise only
the failure of the bishop to carry out the direction of the testatri
There would be no practical difficulty in dealing with the situ
tion in this way. It would be perfectly possible for a Court o
Equity at the suit of the next of kin to decree that the bish
should hand over the property to them unless within a reasonable
time he should apply the property to the designated purpose
Thus to dispose of the matter would certainly more nearly accom-
plish the intention of the testatrix than to compel the bishop
hand over the property to the next of kin regardless of h
willingness to perform.
The differing views of, say, Professor Scott and of the Court o
Appeal, in the Broadway Cottages Trust case 65 are, however, mer
a recent example of a much older controversy, an earlier instance
which may be seen in the difference of opinion between Professo
Ames and Gray. Thus, Professor Ames wrote, in criticism of Mor
61 Some of the logical difficulties are explored by Lord Reid in Re Gulbenkian

[1970] A.C. at 519 where he concludes: " I gravely doubt some of the argumen
used by the Court of Appeal," in the Broadway Cottages Trust Case [1955] C
20.
«2 (1804) 9 Ves. 399; (1805) 10 Ves. 522.
63 See also Chichester Diocesan Fund v. Simpson [1944] A.C. 341.
8* The Law of Trusts, 3rd ed., 1967, vol. 2, p. 924; see also Scott, "Trusts for
Non-Charitable and Benevolent Purposes " (1945) 58 Harvard Law Review 548,
565; Glanville Williams, "The Three Certainties •• (1940) 4 M.L.R. 21, 22;
Marshall, "The Failure of the Astor Trust" (1953) 6 Current Legal Problems
151, 163. And see Potter, 13 The Conveyancer (n.s.) (1949), 418.
es [1955] Ch. 20.

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v. Bishop of Durham 66 that

urged against such a gift [as in
pel [the trustee] to act if he
sequitur to say that therefo
when he is willing? *67 Hav
to powers of appointment, h
now vary the case by supposi
donee of the power the dut
this duty furnish any reason
seem a mockery of legal r
sanction the exercise of the
moral obligation to act at a
ment when the donee was in honor bound to make it? e9
According to Professor Gray, on the other hand,70

I am not arguing that the doctrine of Morice v. Bishop of
Durham 66 is a legal necessity; but I submit that it is reasonable,
and in accordance with the analogies of the law, and that there is
good reason why, as Mr. Ames says, Morice v. Bishop of Dur¬
ham 66 " has never been directly impeached either in England or
in [the United States]/'
Most of the arguments of Professors Ames and Gray, however,
appear to turn on the assumption that the only ground adduced by
Lord Eldon in Morice v. Bishop of Durham66 in holding the trust
there void, was the absence of any identifiable beneficiary to enforc
the trust.71 It is not the purpose of the present discussion to investi
gate problems of so-called purpose trusts. But in cases which involve
such trusts, two objections to their validity have generally been raised:
first, that there is no specific beneficiary capable of enforcing it and,
secondly, that the very purposes (or objects) themselves may be too
uncertain.72 The two supposed grounds of invaiidity are frequently
confused,73 but in relation to the trusts with which this article is pri¬
marily concerned, it is apparent that the first argument is irrelevant,
that the second may be met by the criticisms of Professor Ames (even
«« (1805) 10 Ves. 522.

«7 Ames, "The Failure of the Tilden Trust" (1891-92) 5 Harvard Law Review, 389,
395. Cf. Kilroy v. Parker [1966] I.R. 309, 335; MitchelVs Trustees v. Fraser
[1915] S.C. 350.
68 Ames, loc. cit., 396; cf. Re Gulbenkian [1970] A.C. 508, 518, per Lord Reid.
69 Cf. Scott, The Law of Trusts, 3rd ed., 1967, vol. 2, p. 921: " It would seem to
be the height of technicality to hold that if a testator authorizes a legatee to
divide the property amongst such of the testator's friends as he might select, he
can properly do so; but that if he directs him to make such a selection, he will
not be permitted to do so."
70 " Gifts for Non-Charitable Purposes" (1902) 15 Harvard Law Review, 510, 515.
71 See Scott, "Trusts for Non-Charitable and Benevolent Purposes" (1945) 58
ibid., 548, 563.
7* See Re Astor's Settlement Trusts [1952] Ch. 534, 548, per Roxburgh J.
73 And perhaps neither argument is conclusive in the matter. See p. 82, above.

213.255.128.166 on Thu, 13 Apr 2023 16:10:44 UTC
though they were not directed primarily towards

the strengths of that argument, the first case in w
held to be void for uncertainty was the Broadw
case.74
What is the nature of the duty of the truste
in the case of a mere power, it is to consider w
Doe or Roe.75 In the case of a trust power, is th
necessarily different in kind or merely different
if the analysis of a trust power as a power fol
trust in default of appointment is adopted (and as
and Scott77 demonstrate, this is a legitimate m
approach even Morice v. Bishop of Durham 78)
evident, in which case, clearly it is not necessar
objects of the trust power. But if, on the other ha
regarded as a power which the donor is under a
it necessarily follow even then that a " complete li
be capable of being drawn up—or is such a c
monstrous non sequitur " ? 79 Certainly, there
logical and practical grounds for avoiding this
regard both to Lord Reid's strictures in Re Gul
the very nature of the trustee's discretion, fo
discretion as to the objects whom he is to bene
that equal distribution between the several membe
by him or by the court would, in most if not a
with the expressed intention of the settlor or
Wilberforce put it in Re Baden,82 " a trustee with
particularly among a potentiaily very large clas
require the preparation of a complete list of n
would tell him very little that he needs to know
ship's opinion, the distinction drawn by the law b
relating to the validity of mere powers and trust
distinction as there would seem to be is in the
which the trustee is required to carry out: if he
7* [1955] Ch. 20 and see p. 81, above.

75 See Re Gestetner Settlement [1953] Ch. 672, 638.
76 See note 67 above.
77 Scott, The Law of Trusts, 3rd ed., 1967, vol. 2, p. 926.
7 8 (1805) 10 Ves. 522.
7s Ames, loc. cit., 395.
so [1970] A.C 508, 518. See also Re Baden [1970] 2 W.L.R. 1110, 1126, per Lord
Wilberforce: " just as in the case of a power it is possible to underestimate th
fiduciary obligation of the trustee to whom it is given, so, in the case of a tru
(trust power), the danger lies in overestimating what the trustee requires to know
or inquire into before he can properly execute his trust. The difference may b
one of degree rather than of principle."
si But cf. Re Gulbenkian [1970] A.C. 508, 524, per Lord Upjohn.
82 [1970] 2 W.L.R. 1110, 1125, emphasis supplied.

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whole of a fund's income, he

systematic search than if his
make grants." Or, the duty
a mere power. (His Lordship
as one of " inquiry or ascer
more comprehensive range of
powers than in the case of
will differ was not explaine
encounter no great difficul
they might be well advised
may, in the future, be more
some occasions in the past.
Lord Wilberforce's analysis
unorthodox though it seems
has much to commend it. T
duty and a power—but a tru
his powers. When one con
generally, many of his power
of duties: many of his dutie
of powers. In respect of hi
bona fide to consider wheth
consider a matter, he may we
trust either by unthinkingly
at all.85 And in the prese
Wilberforce, in the passage c
and duties in this way. It a
care; his remarks, it is submi
ing an equation of powers
rather as indicating that the
a trustee of a trust power ma
a mere power, if he can tel
indicated class, and if he th
To whom, then, is the " dut
a mere power and in the ca
whole, or each separate me
the case of a mere power,
to survey the class as a wh
right to be considered 86; t
Cottages Trust case,87 where
83 Ibid., 1132-1133.
8* See Wilson v. Turner (1883) 2
^ See Klug v. Klug [1918] 2 Ch. 6
86 See Re Gestetner Settlement
210; Re Sayer [1957] Ch. 423, 43
1 W.L.R. 440, 447, per Lord Evershed M.R. 87 [1955] ch. 20.

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much influenced by the express admission tha

class could not be ascertained, appears to have b
was enjoyed. Yet if this tacit assumption did
decision, it appears to have been equally tacitly
decisions and dicta.88 In the case of a mere p
"duty to consider" is presumably owed to any
each) member of the class, for " a member o
might, if he could show that the trustees had
to consider any question at all as to the want o
member of the class, procure their removal." 8
case where it might be extremely difficult (tho
impossibility) to ascertain all members of the
trust power, a similar analysis has for long
Baden,90 however, expressly overruled the Bro
case91 upon this point and equated the test for
in trust powers to that in mere powers, as form
of Lords in Re Gulbenkian.92
5. Execution of Trust Powers by the Court

If the donees of a trust power fail to execute it, the court wil
do so in their stead. If the analysis of a trust power as a mere powe
with an implied trust in default of appointment be adopted, th
court in the event of default might be unable to divide equally an
a resulting trust would then ensue.93 A like result might be obtaine
if the alternative analysis of a trust power were accepted; in eithe
event, technically, one could assume an execution of the trust powe
by the court. The courts, however, have long declined to accep
any such relativeiy simple solution; until 1970, they stressed th
importance of the principle of equal division being possible from th
date of the establishment of the trust power and, as a result, regarded
themselves bound to hold a number of settlements void ab initio.
But in Re Baden,94 the principle of equal division was examined
with some care and, with some difficulty, abandoned. Much of the
difficulty which the House of Lords encountered might have been
overcome had the House been prepared to construe a trust power
88 See Re Saxone Shoe Co. Ltd.'s Trust Deed [1962] 1 W.L.R. 943, 950-951, per
Cross J.; Re Gulbenkian [1970] A.C. 508, 525, per Lord Upjohn. And see
Jarman, Wills, 8th ed., 1951, p. 898.
89 Re Gestetner Settlement [1953] Ch. 672, 688, per Harman J.
9° [1970] 2 W.L.R. 1110.
« [1955] Ch. 20.
« [1970] A.C. 508; and see [1969] CLJ. 30; [1970] C.L.J. 35.
93 See, generally, Marshall, " The Failure of the Astor Trust" (1953) 6 Current
Legal Problems 151.
94 [1970] 2 W.L.R. 1110.

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as a power followed by an
have been to " construe
but rather to adopt a diff
taken of late. But this the
undertook an analysis of
execution of trustees' discr
According to Lord Wilbe
in the case of a trust po
the court will; I respec
in Lord Upjohn's opinion [in Re Gulbenkian97]. I would
venture to amplify this by saying that the court, if called upon
to execute the trust power, will do so in the manner best
calculated to give effect to the settlor's or testator's intentions.
It may do so by appointing new trustees, or by authorising or
directing representative persons of the classes of beneficiaries to
prepare a scheme of distribution, or even, should the proper
basis for distribution appear, by directing the trustees so to
distribute.fl7a
Each of these methods, which proceeds upon a basis of distribu¬

tion other than equality, deserves a word by way of comment.
(i) Appointment of New Trustees

Although the court does have a wide statutory power to appoint
replacement trustees98 and although, generally, the powers and
discretions of the original trustees now vest in their successors,99 it
is difficult to see how such replacement is, per se, an execution by
the court of an existing trustee's duty. Obviously, such replacement
trustee will doubtless perform the trust more to the satisfaction of
the court, but it is difficult to reject the finding of Jenkins L.J. in
the Broadway Cottages Trust case that "the court would not be
executing the trust merely by ordering a change in the trusteeship." 1
It may well be that the House of Lords in Re Baden2 by adopting
this attitude, has materially extended the meaning of " execution."
95 For which some authority and much persuasive argument may be adduced. See
pp. 73-80, above.
•• [1955] Ch. 20. 36.
" [1970] A.C. 508, 525.
87a [1970] 2 W.L.R. 1110, 1132.
98 See Trustee Act 1925, s. 41: "The court may, whenever it is expedient to
appoint a new trustee or new trustees, and it is found inexpedient, difficult or
impracticable so to do without the assistance of the court, make an order
appointing a new trustee . . ." And see Letterstedt v. Broers (1884) 9 App.Cas.
371, 386, per Lord Blackburn.
99 See Trustee Act 1893, s. 10 (3); Trustee Act 1925, s. 43.
i [1955] Ch. 20, 35; see also Re Baden [1970] 2 W.L.R. 1110, 1130; cf. Re
Gestetner Settlement [1953] Ch. 672, 688.
2 [1970] 2 W.L.R. 1110.

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(ii) Preparation of a Scheme of Distribution

The preparation of such a scheme either by r
bers of the beneficiaries or by the trustees the
urged by counsel in Re Astofs Settlement,3
Roxburgh J.4 on the ground that such a co
followed, save in relation to a charitable trust. This reluctance
has been strongly criticised5 and there would appear to be no
compelling reason, in principle, why such scheme should not be
required. Indeed, Harman J. in Re J. Bibby and Sons Ltd.'s Pension
Trust Deed6 suggested that this course would be a proper one even
in the case of a private trust. And at least so far as a requirement
by the court that the trustees should prepare a scheme of distribution
is concerned, Roxburgh J. perhaps overlooked certain eighteenth-
century cases in which such a scheme was required.
Thus, in Bennett v. Honywood,7 where a testator left to his
executors the sum of £20,000 in trust to distribute, according to their
discretion, " amongst such of his relations by consanguinity and not
by marriage who should appear to his said executors to be worth each
person [not] more than £2,000," upon application by them, a positively
Gilbertian situation developed. Having advertised in the London
Gazette, as directed by the testator, the executors were faced with
no fewer than 456 applications from persons " from England, Scot¬
land, Ireland, Spain, Portugal, Antigua, Jamaica and South Carolina;
and many of them were infants." A bill was brought by certain of
the hopeful applicants for distribution of the legaey, whereupon Lord
Camden L.C. directed that the matter should be referred to the Master
to inquire whether any of the persons who had claimed, and

which of them, were not entitled to any share or proportion of
the legaey, as not being within the description of those who
were entitled ... and if any difficulty should arise on that inquiry,
the Master was to state the same to the Court and make a
separate report thereof; whereupon such order should be made
as should be just; and after the number of persons entitled . . .
should be ascertained, the executors were to lay before the Master
a scheme for the distribution . . . according to their own judg¬
ment and discretion.8
Such cases are, perhaps, not the strongest authority, since they
may possibly have been regarded , at that time, as involving charitable
3 [1952] Ch. 534.

4 Ibid., 548; see also Re Allen-Meyrick's Will Trusts [1966] 1 W.L.R. 499, 503,
per Buckley J.
5 See, in especial, Marshall, loc. cit., note 93, above.
• [1952] 2 All E.R. 483, 486. r (1772) Amb. 708.
8 Cf. Brunsden v. Wooldredge (1765) Amb. 507; Supple v. Low
729, both decisions of Sir T. Sewell M.R. Each was a "poo
and in each, a scheme of distribution was ordered to be
Defriez (1754) ibid., 595.

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bequests.9 It is submitte
evidence, at least, contrar
Astor.10
(iii) Direction by the court t

This is, perhaps, one of
Baden,11 and such direc
example, the cases cited a
direction. Again, it may
inquiry, as in Liley v. H
trustees themselves to "m
necessary to enable me to
case"14; and, in an appro
to keep the administratio
which itself comes far tow
that of the trustees.15 Bu
the matter, however, was
to order distribution on a
been demonstrated that for
order only equal distribut
supposed sole " proper b
was logically necessary or
held void for uncertainty
order equal distribution b
ascertained. For this rea
"relatives" to those included within the Statute of Distribution
1670,16 or a distribution ordered on the basis of a " rule " 17 supplied
by the settlor or testator were evolved, but these devices have, o
late, been looked at askance and the tenor of recent decisions has
been that the court itself could order only equal division. As Sir W.
Grant M.R. put it," "the Court itself has not [any] discretion; but
has only to say what class is to take; and then the distribution must
be equal." The reluctance of the court to assume otherwise is not
9 See Mahon v. Savage (1803) 1 Sch. & Lef. 111; cf. Re Scarisbrick's Will Trusts
[1951] Ch. 622 and see Kilroy v. Parker [1966] I.R. 309, 323, per Budd J.
io [1952] Ch. 534.
n [1970] 2 W.L.R. 1110.
12 See note 8, above.
13 (1841) 1 Hare 580, 583; see also Rippon v. Norton (1839) 2 Beav. 63.
14 Though cf. the reluctance of Cross J. to order such inquiry in Re Saxone Co.
Ltd.'s Trust Deed [1961] 1 W.L.R. 943, 953.
is See, e.g., Re Lofthouse (1885) 29 Ch.D. 921; Re Gee {Infants) [1899] 1 Ch. 719.
i6 See p. 79, above.
17 See p. 98, below.
is In Longmore v. Broom (1802) 7 Ves. 125, 129; see also Penny v. Turner (1848)
2 Ph. 493, 494, per Lord Cottenham L.C.; Farwell, Powers, 3rd ed., 1916, p. 528.

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new, for examples of it may be found fairly earl

century,19 as well as more recently.
It may be noted, however, that when dealing w
Re Gulbenkian,20 the House of Lords21 appears
refrained from reiterating any firm principle of equ
merely that " the trustees must exercise the [tru
default the court will," without indicating clearl
court will do so.22 And according to the current e
work upon trusts,23 " if trustees have such a pow
from any circumstances, the exercise of the pow
entrusted with it becomes impossible, the court w
in the place of the trustees and will exercise the p
reasonable rule." The same authority continues
" mode of execution " of a trust power, that whils
normally, the court proceeds upon the maxim
equity, . . . where the discretion of the trustee
by some rule or measured by a state of facts
can inquire into as effectively as a private per
look with the eyes of trustees and will substitute
for that of the individual24,
The authorities cited in support of this propos
Longmore v. Broom25 with the exception of L
more flexible attitude had long since been taken b
who, in dealing with trust powers in family settl
statefd] the rule in favour of an equal distributio
presumptive value." 27 Normally, of course, equal
case of a family trust was appropriate, as Lord No
directed in Craker v. Parrett28 and in Gibson v. K
clear that he regarded this as no more than a pres
in the latter case,30 he stated, when ordering equ
being no circumstances to induce the court to al
distribution," that " there could be no certain rul
19 See, for example, Maddison v. Andrew (1747) 1 Ves.Sen. 57, 59, per Lord
Hardwicke L.C.
20 [1970] A.C. 508.
21 In especial, Lord Upjohn at 524.
22 And in Brown v. Higgs (1803) 8 Ves. 561, 570, Lord Eldon in his classic
formulation of the principle involved stated that the court would execute t
trust power only 4t to a certain extent" (see p. 69, above) though, it must
admitted, the greater part of his judgment does proceed upon the assumpti
that equal division would normally be appropriate.
23 Lewin, The Law of Trusts, 16th ed., 1964, p. 630.
2* Ibid., 525, emphasis supplied.
2« (1802) 7 Ves. 125.
28 (1842) Hare 580; p. 95, above.
aT Yale, Lord Nottingham's Chancery Cases, vol. 2, 1961, Introduction, p. 134.
28 (1677) ibid., Case No. 653; S.C. sub nom. Cawkry v. Parrett, 2 Fre. 18.
2» (1682) Yale, op. cit., Case No. 1165; S.C. Vern. 66.
30 See also Woolaston v. Swetnam (1677) Yale, op. cit., Case No. 770.

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of powers of this nature

circumstances, nor are such
suffered to take place accord
of the words."
In Re Baden,31 Lord Wilberforce relied upon.a number of
slightly later cases to indicate the power of the court to assert a
wider jurisdiction than was claimed following Longmore v. Broom*2
though the first was a decision of Lord Nottingham himself. Thus,
in Mosley v. Moseley,™ where the defendants held property on trust
for such one of the sons of the testator as they " should think most
worthy and helpful" and they did not so select, Lord Nottingham
required them " within a fortnight next after the entering this Order,
[to] nominate such one of the plaintiffs as they shall think fit . . .
[failing which] this Court will nominate one of the three plaintiffs; it
being the testator's intent that his estate should not be divided, but
settled upon one person." The order amounts, initially, to no more
than a direction to the trustees to carry out their duty, but it clearly
contains an implication of willingness on the part of the court, if
necessary, to substitute its own discretion for that of the trustees.
Clarke v. Turner?4, however, goes much further. The case concerned
a devise to the defendant upon "trust to convey it to such of the
relations of [A] as he should think best and most reputable for his
family." The heir at law of A, who had died without issue, preferxed
a bill against the defendant to have the property conveyed to him.
The action succeeded since " this Court will judge it most reputable
for the family that the heir at law should have it."35 This decision
was later criticised, and probably rightly so, for showing a " dangerous
discretion" exercised by the court,36 but the later decision in
Warburton v. Warburton?1 goes even further.
A testator by his will directed that his residuary estate should be
disposed of by his executrices (his daughters) " to the use of them¬
selves, their brothers and sisters, or to such of them, and in such
proportion, as they should judge most fit and convenient, according
to their needs and necessities." The daughters proposed to divide
the property equally between all the children, whereupon the eldest
son, a lawyer by profession, sought to restrain such exercise of the
C.LJ.—4
3* [1970] 2 W.L.R. 1110.
32 (1802) 7 Ves. 125.
33 (1673) Rep.t.Finch; S.C. Yale, op. cit., vol. 1, 1957, Case Nos. 351, 497.
3* (1694) 2 Fre. 198.
35 It may be noted that Mosley v. Moseley (above) was cited as authority for the
proposition accepted, which proposition it clearly does not support. Baker v.
Barrett (probably Craker (Cawkry) v. Parrett) (above) is correctly cited.
36 Sugden, Powers, 4th ed., 1826, p. 503; 8th ed., 1863, p. 601; see also Yale,
op. cit., vol. 2, Introduction, p. 137.
37 (1702) 1 Bro.P.C. 1.

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power and claimed a double share for himself

most need and necessity, and laboured under
than all the other children." This plea was accep
L.K., " considering the plaintiff was heir of th
to the law, and looking upon him as a necessit
to have a double share."38 The decree was af
of Lords.39
The cases need to be treated with some ca
because of the criticism vented upon them by
because much of the reasoning is confused to
old law relating to illusory appointments; but that
and exercised—a " very jealous "41 control of tr
later turned its back, cannot be doubted. It should also be noted
that such early cases, in which the court exercised its own discretion
in substitution for that of the trustees, were cases in which " there
was a rule prescribed by the testator for the exercise of the discretion
of the trustees." 42 It is doubtful whether these cases could be applied
to the situation where no suoh " rule " was indicated by the testator.43
But it is clear that the court did not feel precluded from controlling
the discretion of the trustees and that it felt itself perfectly able to
execute the trust with scant regard for equality. It has been shown
above that it is logically unnecessary to know all the objects of a
trust power to enable that power to be exercised; from the cases
which culminate in Warburton v. Warburton," it is clear that the
court claimed jurisdiction to compel proper execution by the trustees,
or even itself to execute upon no single " proper basis " for such
execution.
All the above cases are concerned with family settlements, but it
may be noted that in one case the court exercised a like discretion in
a matter not arising out of a family settlement. Thus, in Richardson v.
Chapman,45 Dr. Potter, late Archbishop of Canterbury had, by his will,
left his several " options " (ecclesiastical benefices) to his executors
(of whom the respondent was the survivor), " in trust that in disposing
of [them], regard shall be had according to [the executors'] discretion
to my eldest son," various others of his family, his present and former
38 See also Carr v. Bedford (1678) 2 Cha.Rep. 146.

39 u I hope they did not lay too much stress upon his being bred to the law." Kemp
v. Kemp (1801) 5 Ves. 849, 857, per Sir R. P. Arden M.R.
4° Later Lord St. Leonards, Lord Chancellor, 1852.
4i (1801)5 Ves. 849, 858.
*2 Potter v. Chapman (1750) Amb. 98, 100, citing Warburton V. Warburton. See
also Gower v. Mainwaring (1750) 2 Ves.Sen, 87, 110, per Lord Hardwicke L.C.
43 See Kilroy v. Parker [1966] I.R. 309, 328, per Budd J.
" (1702) 1 Bro.P.C. 1.
« (1760) 7 Bro.P.C. 318. The case has been described as Trollopian: see (1970) 33
M.L.R. 686. Whether it would have appealed principally to Bishop Proudie,
Archdeacon Grantly or to Mr. Slope is a matter for conjecture.

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ohaplains (of whom, again,

persons, including " my worth
the Reverend Dr. Richardson
ship of Lincoln, one of the opt
the respondent first attemp
rejected by the bishop of L
bargain for his own benefit
Archbishop, whereby Mr. Ve
which he would subsequently
living of Mersham. The act
appointment of Venner set
presented to the precentors
Lord Keeper (Sir R. Henley
reversed by the House of Lo
House are not set out, confo
" but it may be supposed that
Thus, " it would be absurd to
with a power of neglecting w
the cestui que trusts anxiou
House, accordingly, set aside
instance where the Court is bound in conscience to set aside the
act of the trustee, in which it has not at the same time decreed t
proper act to be done, not by referring the matter to his discreti
which is forfeited, but by directing him to perform, as a m
instrument, the thing decreed," 49 it was ordered " that the respo
dent Dr. Chapman should in due form forthwith present the appellan
to the Lord Bishop of Lincoln, to be admitted to the said precent
ship."50
It is clear that there is not necessarily any good reason why the
power of the court assumed in, at least, Mosley v. Moseley51 and
perhaps Clarke v. Turner52 need have been abandoned subsequently
and, indeed, Richardson v. Chapman53 received the approval of Sir
R. P. Arden M.R. in Brown v. Higgs,54 though of Warburton V.
Warburton,55 he opined in the following year56 that it was a " very
extraordinary " case where " it seems as if [the court] exercised the
[trust] power themselves; a power [of execution] which of late the
*<* 7 Bro.P.C. at 324.

«* Re Baden [1970] 2 W.L.R. 1110, 1127, per Lord Wilberforce.
48 7 Bro.P.C. at 325.
*9 J&tf., at 326-327.
50 Ibid., at 330. C/. Potter v. Chapman (1750) Amb. 98, where an attempt t
prevent the egregious Chapman from securing a living for himself at Chiche
was less successful.
5i (1673) Rep.t.Finch 53. « (1694) Fre. 199.
" (1760) 7 Bro.P.C. 318. s* (1800) 5 Ves. 495, 504.
ss (1702) 1 Bro.P.C. 1. se in Kemp v. Kemp, 5 Ves. 849, 857

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court has disclaimed; and, I hope, that will always

the years which followed, Lord Nottingham's " presu
of equality " became the only principle whereby the
rather would) divide the property. The court appea
have proceeded from the principle of convenience
" relations cases " to the conclusion that no other p
possibly work which, arguably, constitutes a non s
Professor Ames might, indeed, have been tempt
" monstrous."57
The apparent difficulties surmounted, the House
Re Baden58 then proceeded to equate the test fo
objects in trust powers with that in mere powers an
former the test laid down by Lord Upjohn in R
(although the questions as to the validity of the particu
in Re Baden58 itself, which had been ODnstrued as a
remitted to the Chancery Division). I:n so doing, th
the view of a trust power of its placing a duty upon
explained it in terms of a duty to consider rather
distribute. But the assimilation of trust powers to m
no further than that, for u a wider and more comprehe
is still called for in trust powers than in mere powers;
went, indeed, no further than in relation to the cert
the Broadway Cottages Trust case60 was overruled
point; presumably, therefore, " a valid ]power still cann
of an invalid trust" 61—but what, now, that dictum
One wonders, more generally, whether the effect of Re
be to lead to a happier fate for so-called purpose tr
recalled that such trusts have, in recent years, ten
uncertainty,63 but in Re Denley's Trust Deeds,"
distinction between " purpose or object trusts which
impersonal," which are normally void for uncertain
which " though expressed as a purpose, [are] directly or
the benefit of individuals." The new flexibility int
Baden 65 into the general question of certainty of
with the approach to purpose trusts suggested by R
well put a different complexion upon many such trusts
Few discretionary trusts will be void for uncerta
(save those which are void upon what Lord Wilbe
57 See p. 89, above. ss [1970] 2 W.L.R. 1110.

" [19701 A.C. 508, 524.
•• [1955] Ch. 20.
«i Ibid., at 36.
« [1970] 2 W.L.R. 1110.
63 See p. 82, above.
" [1969] 1 Ch. 373. es [i970] 2 W.L.R. 1110.

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" semantic grounds "66). As hi

to be void for uncertainty in t
be one where
the meaning of the words .used is clear but the definition of the
beneficiaries is so hopelessly wide as not to form " anything like
a class" so that the trust is administrably unworkable or in
Lord Eldon's words one that cannot be executed (Morice v.
Bishop of Durham 67). I hesitate to give examples for they may
prejudice future cases, but perhaps " all the residents of Greater
London " will serve. I do not think that a discretionary trust
for " relatives " even of a living person fails within this category.
6. Conclusion
It is not easy to assess the effects of Re Baden.** So far as the c

itself is concerned, even, the story is not yet over for the quest
of the validity of the instrument has been remitted to the Chanc
Division.
More generally, the case has clarified one question, the law of
certainty of objects in trust powers, at least in trusts for the distribu¬
tion of income. Whether a like solution would be adopted in the
case of a trust for the distribution of capital is unclear. Lord Wilber¬
force, in treating of the Broadway Cottages Trust case,69 noted that
" in addition to the discretionary trust of income [in that case] there
was a trust of capital for all the beneficiaries living at the terminal
date. This necessarily involved equal division." 70 This was indeed
so; the capital of the trust fund there was held in trust for " such of
the beneficiaries as shall be living . . . at the termination of the
appointed period and if more than one in equal shares." Lord
Wilberforce in Re Baden 68 made no further mention of such trust
nor of a trust for the distribution of capital at the discretion of the
trustees. It is, therefore, not possible to state with certainty whether
the more flexible rule adumbrated for trust powers necessarily relates
to all trust powers or simply to such as may be concerned with the
distribution of income. Nor can it be stated whether Re Baden 68
will have any effect upon trusts for a very wide range of objects,
where the trustees have no discretion at all. Equally, whether the
case will have a bearing upon purpose trusts, especially in view of
the judgment of Goff J. in Re Denley,71 remains to be seen.
66 Ibid., at 1133. See also Re Gulbenkian [1970J A.C. 508, 518, per Lord Reid;
cf. Kilroy v. Parker [1966] I.R. 309, 328, per Budd J. Whether a clear distinc¬
tion can be drawn between " semantic " uncertainty and uncertainty which arises
upon other grounds is, perhaps, moot.
«' (1805) 10 Ves. 522.
«» [1970] 2 W.L.R. 1110.
•• [1955] Ch. 20.
70 [1970] 2 W.L.R. 1110, 1129, emphasis supplied. " [1969] 1 Ch. 373.

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Distinctions between mere powers and trus

powers and duties, clearly remain, but it seems
before Re Baden,** there was " tension . . . between
of requiring sufficient certainty to ensure the effe
by the courts and the newer principle providing on
work within which a certain type of trust c
administered,"72 the primary mariifestation of t
removed. Even in what might be termed the old
relations trusts, arbitrary limits were placed upon
classes (and, in some early cases, the court itsel
wide discretionary jurisdiction), in order to pr
straightforward enforcement. No such device w
example, trusts for the benefit of company em
of Lords, to meet that situation, boldly reform
returned to a formulation which perhaps Lord
readily have recognised. "I prefer not to sup
masters of equity, if faced with the rnodern t
would have failed to adapt their creation to its
mercial character," said Lord Wilberforce.73 Cer
force himself did not hesitate to restate the law
caused a number of preconceived notions to be r
also opened up a number of further uncertaint
delectation of the courts.
72 J. D. Davies, Annual Survey of Commonwealth Law, 1

73 [1970] 2 W.L.R. at 1128.

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Certain Uncertainties of Trusts and Powers

Author(s): John Hopkins

Stable URL: https://www.jstor.org/stable/4505439

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CERTAIN UNCERTAINTIES OF TRUSTS

1. Distinction between Trusts and Powers

" It is striking how narrow and in a sense artificial is the distinctio

so as to execute the trust,"6 p

2. Mere Powers and Trust Powers

Apparently somewhere midway between trusts and powers, howe

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from that selection not being made, the Co

In other words, the so-called power in the n

15 [1970J2 W.L.R. 1110.

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A trust is indeed mandatory

(i) Distinctions between Me

23 [1970] 2 W.L.R. 1110.

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At first instance, Goff J.,28 approving the cl

28 [1967] 1 W.L.R. 1457.

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contingency plans which ar

(ii) The Nature of Trust Powers: Brown v. Higgs\ Burrough v.

In view of the foregoing, a further inquiry into the nature of trust

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power of appointment exercisable by the late John

gift to all the children, or to such of them only as the testator's

Accordingly, the children of Samuel and William took equally as

« (1799) 4 Ves. 708.

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to the estate implied in the w

" Powers, 3rd ed., 1916, p. 527.

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It appears likely that in the several judgmen

The question is whether these nieces and ne

(iii) Further Cases

59 For a like change in a modern case, see the Broadway Cott

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*3 (1883) 24 Ch.D. 244.

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versely, the fact that no such express gift ove

« [1897] 1 Ch. 289.

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Now when the analysis of t

80 See, generally, Re Gestetner Set

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included within the Statute of Distribution, the word "

87 See also Harding v. Glyn (1739) 1 Atk. 469; Mahon v. Sava

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(iv) Inland Revenue Commiss

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to adopt as his ratio decidendi the argumen

5 See Re Gulbenkian [1970] A.C. 508, 521, per Lord Upj

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quite plainly been . . . rel

13 See Re Hooper's Settlement (1955) 34 A.T.C. 3; Re Rank, The Times, 23

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tending Re Park23 and Re Jones24 and disapprovi

23 [1932] 1 Ch. 580.

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J., at first instance, purport

< 7 Bro.P.C. at 324.