that same marriage being solemnized at any future time, and be supported by it (v) It is apprehended that the consideration of the marriage cannot extend to both the settlements. It might be thought more in aċcordance with the reason and principle on which that consideration is founded that it should support that contract alone which was in the minds of the parties at the time of the marriage, and on the faith [ * 479 ] of which the marriage might be said to have been contracted (w); and, subject to any question as to undue influence (x), to treat any such previous inconsistent dispositions as unaided by the marriage consideration.

As a voluntary settlement is not supported by a con- Trust for tract, so a settlor of a voluntary post-nuptial settlement maintenance. which contained a discretionary trust for the maintenance of the children out of the income of the fund settled is not entitled to recoup himself out of the accumulations of that income any sums he may have paid for their maintenance (y).

(v) Thomas v. Brennan, 15 L. J. (N.S.) Ch. 420; M'Donnell v.
Hesilrige, 16 Beav. 346; Bond v. Walford, 32 Ch. D. 238.
(w) Bond v. Walford, 32 Ch. D. 238.

(x) Robinson v. Dickenson, 3 Russ. 399.
(y) In re Kerrison's Trusts, L. R. 1 Eq. 422.

Fraud be tween parties.

Deed not properly understood.

GIFTS VOIDABLE BETWEEN THE PARTIES FOR FRAUD,
UNDUE INFLUENCE ETC., PRACTISED ON THE DONOR.

THE rule that a man cannot allege fraud to avoid his own deed, of course has no application where the fraud was practiced against himself; fraud between the parties will always make the voluntary deed void as between them, and the fact of a conveyance being made without consideration is frequently a mark of such fraud.

Consequently when a voluntary deed has been obtained by fraud or undue influence (z), under circumstances from which it appears that the donor did not know the effect of the deed, and did not make it with his eys open (a), the Court will set it aside or restrain proceedings upon it at law (b).

If a man executes a deed without being aware of the effect of it, that deed cannot be set up against him either at law (c) or in equity (d). Where there are circumstances which would lead the Court to suppose that the donor was not fully aware of what he was doing, the Court will not do anything in support of the gift (although no case of ignorance on the part of the donor is made out by the other side) unless satisfied that the effect of what he was doing was fully explained to the

(z) See further as to this subject, the notes to Huguenin v. Baseley, 14 Ves. 273, 2 Wh. & Tu. L. C. 6th ed. 597 et seq.; Kerr, Fraud & Mis. 2d ed. 122 et seq.; Peachey, Sett. 584; 2 Spence, Eq. J. 299; Pollock, Cont. 4th ed. 556 et seq. As to Wills, see 1 Jarm. 4th ed. 35, 36; Hall v. Hall, L. R. 1 P. & M. 481; Par-. fitt v. Lawless, L. R. 2 P. & M. 462; Longford v. Purdon, 1 L. R. Ir. 75; Wingrove v. Wingrove, 11 P. D. 81.

(a) See note (z), and Wollaston v. Tribe, L. R. 9 Eq. 44; Dutton v. Thompson, 23 Ch. D. 278; National Provincial Bank of England v. Jackson, 33 Ch. D. 1, post.

(b) Lloyd v. Clark, 6 Beav. 309.

(e) Doe v. Bennet, 8 C. & P. 124.

(d) Ramsden v. Hylton, 2 Ves. 304; Huguenin v. Baseley, 14 Ves. 273, 296; Hoghton v. Hoghton, 15 Beav. 278; Wollaston v. Tribe, L. R. 9 eq. 44; Lister v. Hodgson, L. R. 4 Eq. 30; Everitt v. Everitt, L. R. 10 Eq. 405; Dutton v. Thompson, 23 Ch. D. 278; Phillips v. Mullings, L. R. 7 Ch. 243; and see In re Garnett, 31 Ch. D. 1.

* 481]

donor (e). Where, for example, a man who [
could not write executed a document, drawn out, read
over to him, and attested by an unprofessional per-
son, and purporting to grant all his property to his
wife, the Court, independently of the validity of the
gift per se, declined to support it (f).

A gift not properly understood by the grantor cannot be upheld, though there was no actual fraud (g), and may be set aside even after the death of donor and donee (h).

not rectified

against

The Court cannot reform or rectify a voluntary set- Voluntary tlement against the settlor. He, and he alone, can settlement choose on what terms or subject to what conditions to make his gift; and the Court cannot compel him to settlor. alter his own deliberate act, however capricious or inadvisable it may be (i).

If the deed does not express the intention of the settlor, and he contests it, the deed must stand or fall in its actual condition without alteration (k). So, unless the settlor consents, the voluntary settlement must be upheld or set aside in toto; it cannot be modified to suit former intentions (1).

when rec

A voluntary settlement may, however, be rectified or Voluntary reformed in certain cases upon the ground of mistake, settlement either by the insertion (m), or alteration (n), or omis sion (o) of powers.

(e) Price v. Price, 14 Beav. 598 S. C. 1 De G. M. & G. 308; Grosvenor v. Sherratt, 28 Beav. 659, and see post.

(f) Price v. Price, 14 Beav. 598, S. C. 1 De G. M. & G. 308, post, p. 492; Grosvenor v. Sherratt, 28 Beav. 659.

(g) Evans v. Llewellyn, 3 Bro. C. C. 150; Sturge v. Sturge, 12 Beav. 229; Phillips v. Mullings, L. R. 7 Ch. 243; Dutton v. Thompson, 23 Ch. D. 278; and see Mara v. Ray, W. N. (1872) 127; National Provincial Bank of England v. Jackson, 33 Ch. D. 1. (h) Phillipson v. Kerry, 32 Beav. 628, S. C. 638.

(i) Brown v. Kennedy, 33 Beav. 133, 147, S. C. 154; Phillipson v. Kerry, 33 Beav. 628, S. C. 638; Lister v. Hodgson, L. R. 4 Eq. 30, 34; Turner v. Collins, L. R. 7 Ch. 329; Keogh v. M'Grath, 5 L. R. Ir. 478; see Kerr, Fraud & Mis. 2nd ed. 507.

(k) Broun v. Kennedy, 33 Beav. 147; Keogh v. M'Grath, 5 L. R. Ir. 478, 502; and see Hughes v. Seanor, 18 W. R. 1122.

(1) Cooke v. Lamotte, 15 Beav. 232, 250; Phillipson v. Kerry, 33 Beav. 628, S. C. 638; Turner v. Collins, L. R. 7 Ch. 342.

(m) Hanley v. Pearson, 13 Ch. D. 545; Welman v. Welman, 15 Ch. D. 570; James v. Couchman, 29 Ch. D. 212.

(n) Keogh v. M'Grath, 5 L. R. Ir. 478.

(o) Lackersteen v. Lackersteen, 5 Jur. (N.S.) 1111; In re De La Touche's Settlement, L. R. 10 Eq. 599; Turner v. Collins, L. R. 7 Ch. 329; Hanley v. Pearson, 13 Ch. D. 545.

tified.

Mistake must
be common
to all the
parties.

Of course where the settlor agrees that part of a voluntary settlement ought to stand, the Court has power as against him to rectify or reform such settlement (p).

[* 482] *If a man executes a voluntary deed and thereby declares trusts, after his death it is competent for a volunteer under that trust, if he can prove, by instructions or otherwise, that any of the trusts have been declared erroneously, contrary to the intention of the settlor, to file a bill to have those trusts reformed (q), even if the error be such as to carry the property back to the estate of the original settlor (r).

But where a power of revocation is omitted in a voluntary settlement under the notion that it is not necessary to insert it, the settlement cannot be rectified by inserting the power (8).

In order to enable the Court to rectify or reform a voluntary settlement on the ground of mistake, it must be proved that such mistake was common to all the parties to the voluntary settlement; it must be shewn that they all made the blunder, and the blunder must be clearly proved (†). The reason of this is that as the Court virtually makes a new written agreement for all the parties, it can only act upon their mutual and concurrent intention (u).

The Court will reform or rectify a voluntary settlement upon the uncontradicted evidence of the plaintiff alone (v), and that evidence may be given by parol if it be proved that written evidence cannot be obtained (w). The proper proceeding is by action (x) in the Chancery Division of the High Court of Justice, unless the fund the subject of the settlement has been paid into court under the Trustee Relief Acts (y). The action cannot be heard as a short cause (z). The order

(p) Turner v. Collins, L. R. 7 Ch. 329, 342.

(q) Lister v. Hodgson, L. R. 4 Eq. 34.

(r) Thompson v. Whitmore, 1 J. & H. 268, 273.

(s) Worrall v. Jacob, 3 Mer. 270.

(1) Rooke v. Lord Kensington, 2 K. & J. 253; Bentley v. Mackay,

31 Beav, 151, S. C. 4 D. F. & J. 279.

(u) Fowler v. Fowler, 4 De G. & J. 250, 265.

(v) Hanley v. Pearson, 13 Ch. D. 545.

(w) Lackersteen v. Lackersteen, 6 Jur. (N.S.) 1111.

(x) Jud. Act, 1873, s. 34; and see R. S. C. Ord. 55, r. 2 (5).

(y) Re Malet, 30 Beav. 407; In re Bird's Trusts, 3 Ch. D. 214. (z) Clennell v. Clennell, W. N. (1884) 14.

of the Court to rectify the deed is enough to pass the legal estate without a conveyance (z), and in other cases the deed is usually rectified by indorsing a copy of the order on it (a).

*It is with the object of protecting from [* 483] Incapacity of fraud of this kind (b) persons who are less able them- persons not sui juris. selves to cope with it, that infants, insane persons (c), or persons of weak intellect, are to a great extent in capacitated from binding themselves by their contracts, and that contracts made under duress are voidable by the person whose free will was restrained (d).

So before the Married Women's Property Act, 1882, a married woman could only bind her separate.property in equity in certain special cases, and the common law did not allow her to contract at all (e).

Where at the time that a gift or voluntary settlement Confidential is made a confidential or fiduciary relation existed be- relations. tween the donor and donee, the view the Court adopts is that the donee had great temptation to take advantage of his position for the purposes of fraud, and unusual opportunities of practising upon the weakness or the ignorance of the donor. It is therefore a rule of equity that all gifts or voluntary settlements made under such circumstances are to be viewed with a greater or less amount of suspicion in proportion to the means which the relation of the parties to each other afforded of exercising terrorism or undue influence, or inducing the donor to make the gift or voluntary settlement without being fully aware of and intending what he was doing (f).

(z) White v. White, L. R. 15 Eq. 247; Hanley v. Pearson, 13 Ch. D. 545; and see Seton, 4th ed. 1343.

(a) Hanley v. Pearson, 13 Ch. D. 549; James v. Couchman, 29 Ch. D. 218; and see Seton, 4th ed. 1343.

(b) Ante, pp. 480, 481.

(c) As to degrees of incapacity of mind, see White v. Small, 2 Ch. Ca. 103; Lord Thurlow's judgment in Welles v. Middleton, 1 Cox, 119; Selby v. Jackson, 6 Beav. 192, in which, under the circumstances, the Court refused to set aside deeds by a person under restraint in a lunatic asylum, under the medical certificate; and In re Gordon, L. R. 10 Ch. 192.

(d) 2 Bl. Com. 29 et seq.; 2 Broom. & H. Com. 468; Kerr, Fraud & Mis. 2nd ed. 120 et seq.

(e) 45 & 46 Vict. c. 75, s. 1 (2), (3), (4), Conolan v. Leyland, 27 Ch. D. 632, In re Shakespeare, 30 Ch. D. 169; ante, pp. 281, 282. (f) See the cases cited and commented on under Huguenin v. Baseley, in 2 Wh. & Tu. L. C. 6th ed. 597 et seq.; Kerr, Fraud & Mis. 2nd ed. 120 et seq.; and see Nantes v. Corrock, 9 Ves. 182, a