*Neither can the settlor prevent its operation [*459] either by mutilating the deed, as by destroying the seals (x), or altering the limitations after its execution (y,) or by burning (z) or destroying it (a), or by throwing it away with waste paper (b), or by cancelling it (c).

So the executors of the settlor can be compelled to produce any voluntary deed of his which comes into their possession (d).

Nor will the Court presume that a voluntary declaration of trust, executed by the settlor and retained by him, which at his death could not be found, had been destroyed by the settlor, since it was his duty, as trustee and lawful custodian of the deed, to keep it (e).

deeds and donations

It may be here mentioned that probate duty is, un Probate duty der the Customs and Inland Revenue Act, 1881 (ƒ), payable on payable on any property taken as a donatio mortis voluntary causâ, or under a voluntary settlement purporting to operate as an immediate gift inter vivos, whether by mortis causâ way of transfer, delivery, declaration of trust, or other- and debts. wise, made by a donor who has died on or after June 1, 1881, unless it has been bonâ fide made three months before the death of the donor.

Probate duty is similarly payable upon any property which such donor has voluntarily transferred to or vested in himself and any other person jointly, whether by disposition or otherwise, so that the beneficial interest therein, or in some part thereof, passes or accrues by survivorship on his death to such other person.

Probate duty is also payable on voluntary debts (g). son v. Donaldson, Kay, 711; Way's Trusts, 2 D. J. & S. 365; Bonfield v. Hassell, 32 Beav. 217; Armstrong v. Tamperon, 19 W. R. 550; Jones v. Jones, 23 W. R. 1; Evans v. Grey, 9 L. R. Ir. 539; and see Bythewood & Jarman, 4th ed. vol. 2, pp. 264–6. (x) Smith v. Lyne, 2 Y. & C. C. C. 345.

(y) Worrall v. Jacob, 3 Mer. 256.

(z) Daltson v. Coatsworth, 1 P. Wms. 731; Beecher v. Major, 12 L. T. (N.S.) 563.

(a) Naldred v. Gilham, 1 P. Wms. 577; Re Way's Trusts, 2 D. J. & S. 365; Donaldson v. Gillott, L. R. 3 Eq. 278.

(b) Clavering v. Clavering, 2 Ver. 473.

(c) Sepalino v. Twitty, 2 Eq. Ca. Ab. 287; Lady Hudson's Case,

Prec. Ch. 235; Donaldson v. Gillott, L. R. 3 Eq. 278.

(d) Fletcher v. Fletcher, 4 Hare, 67; Brackenbury v. Brackenbury, 2 J. & W. 391; Cecil v. Butcher, 2 J. & W. 565.

(e) In re Booker, 34 W. R. 346.

(f) 44 Vict. c. 12, s. 38.

(g) 44 Vict. c. 12, s. 28.

See post, p. 502.

Voluntary

WHEN AND TO WHAT EXTENT THE ABSENCE OF A

VALUABLE CONSIDERATION WILL INVALIDATE A
COMPLETE VOLUNTARY DISPOSITION OF PROP-
ERTY.

VOLUNTARY settlements, when once they are complete settlements apart from any questions of actual or statutory fraud, as binding as are as binding as if they had been made for a valuable consideration.

those for

value,

unless void under statutes of

Elizabeth, or

Trustees of a voluntary deed are therefore liable for breaches of trust as much as if they were the trustees of a deed for value (h), even though the trust was created by a voluntary gift of the trustees themselves (i). Their conduct must be regarded in the same way, whether the trust was created for valuable consideration or from motives of benevolence (i).

So the donee of a power created by himself without consideration is as much bound by the rules of equity as if the power had been created by any other person (k).

The want of consideration may make a disposition of property void against creditors under 13 Eliz. c 5 (1), or the Bankruptcy Acts (m), or against purchasers unBankruptcy der 27 Eliz. c. 4 (n); and voluntary gifts are also liable to be set aside on account of fraud in the way in which they were obtained (o).

Acts, or for fraud.

In most instances, however, if the gift is once fully and validly and perfectly affected (p), the want of consideration is of no importance.

(h) Smith v. French, 2 Atk. 243; Lanham v. Pirie, 2 Jur. (N.S.) 753, S. C. 3 Jur. (N.S.) 704.

(i) Drosier v. Brereton, 15 Beav. 221. See Stone v. Stone, L. R.

5 Ch. 74.

(k) Topham v. Duke of Portland, 11 W. R. 507; Daubeny v. Cockburn, 1 Mer. 626.

(7) Ante, pt. ii.

(m) See now 46 & 47 Vict. c. 52, s. 47 (1); ante, pp. 12, 42 et seq.
(n) Ante, pt. iii.
(0) Post, pt. v. ch. v.

(p) Ante, pp. 402 et seq.

strued like

* "There are, no doubt," said Lord Romil- [* 461 ] Complete ly, M. R., in Dickinson v. Burrell (q), “various circum- voluntary stances which may be connected with a voluntary deed deed conwhich will induce this Court either to set the deed aside a deed for or to refuse to execute the trusts contained in it. There value. are also statutory enactments which may defeat a voluntary deed which would be otherwise valid; but, assuming a voluntary deed to be complete, bonâ fide, and valid, and to be unaffected by any statutory disability I know of no distinction between such a deed and one executed for valuable consideration. The estates and limitations created in such a deed have the same operation and effect as in a deed executed for value, and must be construed in the same manner; and it carries with it all the same incidents and rights attached to the property conveyed as are carried by a deed executed for value; and the grantee, in this respect, stands exactly in the same situation as if he had paid value for the property conveyed."

The Court has no discretion to prevent a person of Undue infull age and sound mind from making a voluntary gift fluence. even though he thereby strips himself of all his property, except in cases of undue influence (r). In the absence of proof of this, the donor's right to select the objects of his bounty, and the donee's right to receive it, is incontrovertible; the donor is bound by his act, and the Court cannot interfere (s).

The law of this land, said James, L.J., in Hall v. Hall (t), permits any one to dispose of his property gratuitously, if he pleases, subject only to the special provisions as to subsequent purchasers and as to creditors.

Thus in Villers v. Beaumont (u), W. B., a little be- Villers v.

(q) L. R. 1 Eq. 343; and see Rochfort v. Fitzmaurice, 2 Dr. & War., per Sugden, C., at p. 20; Sackville West v. Viscount Holmesdale, L. R. 4 H. L. 554.

(r) Per Lord Eldon in Huguenin v. Basseley, 14 Ves. 290, 2 Wh. & Tu. L. C. 6th ed. 597 et seq.; and see Toker v. Toker, 31 Beav. 629, 644; Armstrong v. Armstrong, Ir. R 8 Eq. 1; Phillips v. Mullings, L. R. 7 Ch. 244; Henry v. Armstrong, 18 Ch. D. 668; James v. Couchman, 29 Ch. D. 212; post, pt. v. ch. v.

(s) Hunter v. Atkins, 3 My. & K. 113, per Lord Brougham, at p. 134.

(t) L. R. 8 Ch. 437.

(u) 1 Vern. 100; Wright v. Moor, 1 Rep. Ch. 84 [157]. As to subsequent disposal of property previously conveyed without consideration, see post, pp. 475, 476.

Beaumont.

*

fore his death, by a little scrap of paper at an alehouse, [ * 462] but under hand and seal, settled a lease for years upon A. and B. to the intent to pay his debts, and gave the surplus to them. Afterwards, being dissatisfied with the settlement, which he had delivered out of his hands to a creditor, he attempted to dispose of the same property by will; and in support of the subsequent will it was insisted that the manner of obtaining this deed carried with it badges of fraud and circumvention, or surprise at least. The Lord Chan cellor, however, said: "There is no colour in this case. If a man will improvidently bind himself up by a voluntary deed, and not reserve a liberty to himself by a power of revocation, this Court will not loose the fetters he hath put upon himself, but he must lie down under his own folly; for if you would relieve in such a case, you must establish this proposition-viz., That a man can make no voluntary disposition of his estate but by his will only, which would be absurd.”

Lumley v. The principle that a voluntary settlement cannot be Desborough. set aside in the absence of clear proof of fraud or surprise is well illustrated by the case of Lumley v. Desbor· ough (v). The plaintiff filed his bill to impeach a postnuptial settlement made by him, on the ground of fraud, alleging he did not then know A. B. was not his lawful wife. In 1847 he had married A. B., who described herself as a spinster. Some years after he separated from A. B., and then made in her favour the settlement in question. The settlement recited that A. B. was the wife of the plaintiff, and was made in consideration of natural love and affection, but contained no covenant to indemnify the plaintiff against A. B.'s debts (w). After the separation the plaintiff made inquiries as to A. B.'s previous marriage, and subsequently prosecuted her for bigamy in 1869, of which she was found guilty; but, on a point reserved, the conviction was quashed.

Sir J. Stuart, V.C., dismissed the bill, and said: "The rule of the Court is plain, that a voluntary instrument cannot be set aside by the settlor who made it, unless he can prove that it was executed under circumstances which amount to a fraud, or, in other words, that he was deceived in such a manner as to lead the

(v) 22 L. T. (N.S.) 597; Pratt v. Barker, 1 Sim. 1, S. C. 4 Russ. 507. But see Robinson v. Dickenson, 3 Russ. 399; post, p.

478.

(w) See ante, pp. 301 et seq.

* Court to the conclusion that the settlement [ * 463 ] is no settlement at all. The mere recital in the deed of words of description which turn out to be inaccurate is not enough. It might be said that the defendant, Mrs. L., in executing a deed which describes her as the wife of Major L., knew at the time she signed it that she was not his lawful wife (x). But in order to sup port a case of that kind, the knowledge-or, at all events, the belief-that she was not his lawful wife must be shewn clearly."

66

creditors

There is no analogy between these cases and those Assignments in which property has been vested in trustees for cred in trust for itors, and the assignment has neither been acted upon different. by nor communicated to the creditors. For, as Sir J. Leach said (y) Wallwyn v. Coutts (z) and Garrard v. Lauderdale (a), so far from deciding that a cestui que trust becoming entitled under a voluntary settlement has not a good title, proceeded upon this, that the character of trustee and cestui que trust never existed between the creditors and the trustees of the trust deeds, but that the settlor himself was the only cestui que trust, and therefore that he was entitled to direct the application of his own trust fund."

And even settlements which are actually or construc- Settlements tively fraudulent, either against creditors or purchasers, void under under the statutes of Elizabeth, are, as between the statutes are good as parties to them, and all persons claiming through them, between unimpeachable (b).

This is expressly provided by the wording of the statutes (c).

(x) See Wilkinson v. Joughin, L. R. 2 Eq. 319.

(y) In Bill v. Cureton, 2 My. & K. 511. See Paterson v. Murphy,

11 Hare, 90; Jones v. James, 8 Ch. D. 744; and see ante pp. 433

(a) 3 Sim. 1-12, where the same distinction was expressly recognized.

(b) Ante. pp. 67. 69, 298, 209.

(c) By 13 Eliz. c. 5, s. 2, conveyances, &c., are (“only as against that person or persons, his or their heirs, successors, executors, administrators, and assigns, and every of them, whose actions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries, and relief, by such guilful, covinous, or fraudulent devices and practices as is aforesaid, are, shall, or might be in anywise disturbed, hindered, delayed, or defrauded") utterly void and of none effect. By 27 Eliz. c. 4, s. 2, all conveyances made to deceive purchasers shall be deemed and taken, only as against that person and persons, bodies politic and corpor

parties.