§ 105. Nor is notice to the cestui que trust or to the trustee, and acceptance by him, essential to the validity of a voluntary trust as against the settlor, if it is otherwise perfectly created.1 But the absence of notice may become a fact of more or less importance in determining whether the trust is perfectly created or not. As between purchasers for value, notice or no notice may have important effects, but a voluntary trust, as between the settlor, the trustee, and the cestui que trust, can be perfectly created without it.

§ 106. Under the statute of uses, uses could be raised either upon a valuable or pecuniary consideration, or upon what was called a good or meritorious consideration; that is, a consideration arising out of blood, marriage, or family affection, and the moral obligation that every one is under to provide for his family or relations. Thus, a covenant to stand seized to the uses of a stranger, founded upon a valuable consideration, operated under the statute as a deed of bargain and sale to be enrolled, and conveyed the land to the stranger. But a covenant in consideration of blood or marriage, to stand seized to the use of a wife or child or other relation, created a use only in the cestui que use, and the deed need not be enrolled. In all cases the consideration of this conveyance was the foundation of it. Therefore, a covenant to stand seized to the use of a stranger in consideration of love or affection for him was inoperative for want of a consideration; and a covenant in consideration of blood or mar

1 Tate v. Leithhead, Kay, 658; Donaldson v. Donaldson, Kay, 711; Roberts v. Lloyd, 2 Beav. 376; Burn v. Carvalho, 4 M. & Cr. 690; Sloper v. Cottrell, 6 El. & Bl. 504; Gilbert v. Overton, 2 Hem. & Mill. 110; Kekewich v. Manning, 1 De G., M. & G. 176; Tierney v. Wood, 19 Beav. 330; Lamb v. Orton, 1 Dr. & Sm. 125; Meux v. Bell, 1 Hare, 73; Otis v. Beckwith, 49 Ill. 121.

2 Beatson v. Beatson, 12 Sim. 281; Meek v. Kettlewell, 1 Hare, 476; 1 Phill. 342; Rycroft v. Christy, 3 Beav. 238; Godsall v. Webb, 2 Keen, 99; McFadden v. Jenkyns, 1 Phill. 153; Bridge v. Bridge, 16 Beav. 315; Cecil v. Butcher, 2 J. & W. 573.

riage, to stand seized to the use of a relative and a stranger, vested the whole use in the relative, and was inoperative as to the stranger. From this brief statement can be seen the effect and meaning of what was called a good or meritorious consideration under the statute of uses.1

§ 107. In analogy to this doctrine, under the statute of uses it has been urged that a voluntary post-nuptial settlement in favor of a wife or child, executory in all its aspects, would be enforced in favor of such wife or child on the ground of a good or meritorious consideration for such settlement.2 And in Ellis v. Nimmo, Sugden, Lord Chancellor of Ireland, after a most exhaustive examination of the authorities, decided that the meritorious consideration of providing for a child. was sufficient to lead a court of equity to enforce an executory contract against the settlor.3 This case met with considerable criticism, and several cases were decided, more or less in opposition to it. In Moore v. Crofton, he allowed it to be overruled, declaring, however, at the same time, that he still thought it decided upon sound principles of equity, so that now it may be considered as settled in England, that an executory agreement founded on a meritorious consideration only will not be executed against the settlor himself."

1 Sand. Uses, 96-101; 2 Black. Com. 338.

Bonham v. Newcomb, 2 Vent. 365; Leech v. Leech, 1 Ch. Cas. 249; Fothergill v. Fothergill, Freem. 256; Sear v. Ashwell, and Gordon v. Gordon, 3 Swans. 411; Watts v. Bullas, 1 P. Wms. 60; Bolton v. Bolton, 3 Sev. 414; Goring v. Nash, 3 Atk. 186; Darley v. Darley, ib. 399; Hale v. Lamb, 2 Ed. 292; Evelyn v. Templar, 2 Bro. Ch. 148; Colman v. Sarel, 1 Ves. Jr. 50; 3 Bro. Ch. 12; Antrobus v. Smith, 12 Ves. 39; Rodgers v. Marshall, 17 Ves. 294; Ellison v. Ellison, 6 Ves. 656. Ellis v. Nimmo, Lloyd & Goold, 333.

4 Holloway v. Headington, 8 Sim. 324; Dillon v. Coppin, 4 My. & Cr. 646; Jefferys v. Jefferys, 1 Cr. & Ph. 138.

5 Moore v. Crofton, 3 Jon. & La. 442.

6 Antrobus v. Smith, 12 Ves. 46; Holloway v. Headington, 8 Sim. 325; Walrond v. Walrond, 1 Johns. 25. And see Phillips v. Frye, 14 Allen, 36; White v. White, 52 N. Y. 368.

§ 108. As to other parties claiming under the settlor, if he had sold the estate, or become indebted, the equity of a wife or child claiming as cestui que trust, on the ground of a meritorious consideration, would not be enforced against a purchaser or creditors. But if the settlor subsequently made a voluntary settlement, or died without disposing of the estate by some act inter vivos, there were authorities that the voluntary cestui que trust could enforce his equity as against other volunteers under another settlement,2 or against devisees or legatees, or against the heir-at-law or next of kin. There was, however, this condition, that the persons against whom the settlement was sought to be enforced could not also plead a meritorious consideration; for, if they also were children of the settlor, the considerations would be equal. In such cases the court referred it to a master to report whether they had an adequate provision independent of the estate.5 But, at the present day in England, it would appear that even as against volunteers claiming under the settlor, with or without an adequate provision, a voluntary executory agreement, whether under seal or not, cannot be enforced on the mere ground of a meritorious consideration.6

1 Bolton v. Bolton, 3 Swans. 414, note; Goring v. Nash, 3 Atk. 186; Finch v. Winchelsea, 1 P. Wms. 277; Gerrard v. Lauderdale, 2 R. & M. 154, 453. But see Mackay v. Douglass, L. R. 14 Eq. 106; Perry Herrick v. Attwood, 2 De G. & J. 39; Beal v. Warren, 2 Gray, 447.

2 Bolton v. Bolton, 3 Swans. 414.

8 Ibid.

4 Watts v. Bullas, 1 P. Wms. 60; Goring v. Nash, 3 Atk. 186; Rodgers v. Marshall, 17 Ves. 294.

5 Goring v. Nash, 3 Atk. 186; Rodgers v. Marshall, 17 Ves. 294. Price v. Price, 14 Beav. 598; Colman v. Sarel, 1 Ves. Jr. 50; Jefferys v. Jefferys, 1 Cr. & Ph. 138; Antrobus v. Smith, 12 Ves. 39; Evelyn v. Templar, 2 Bro. Ch. 148; Holloway v. Headington, 8 Sm. 334; Joyce v. Hutton, 11 Ir. Ch. 123; Moore v. Crofton, 3 Jon. & La. 442.

Mr. Lewin (p. 95 of his 3d ed.) has discussed this whole matter with a fulness that leaves little to be said. He says: "It has also been supposed that where the trust is imperfectly created the court, without proof of valuable consideration, will act upon a meritorious consideration, as the payment of debts or provision for wife or child. The covenant to stand seized to

§ 109. The tendency in the United States is to sustain and carry into effect an executory trust in favor of a wife or child

uses, and the jurisdiction of the court in supplying surrenders and aiding the defective execution of powers, have generally been referred to as establishing, or at least countenancing, this doctrine.

"As regards the covenant to stand seized to uses, it is evident that mere meritorious consideration was not a sufficient ground to attract the jurisdiction of the court; for no use would have arisen in favor of a wife or child, unless there had been a covenant. There are several ways in the law,' said Lord Justice Holt, for declaring uses, whether upon transmutation of the possession or not. If a use be declared upon a transmutation of the possession, as in a fine of feoffment, it is sufficient for the party on the transmutation to declare that the use shall be to such a party of such an estate; but if the use arise without transmutation of the possession, the use then does not arise by virtue of any declaration or appointment, but there must be some precedent obligation to oblige the party declaring the use, which must be founded on some consideration; for a use, having its foundation generally on grounds of equity, could not be relieved in chancery without transmutation of possession, or an agreement founded on a consideration; and therefore if bargain and sale were made of a man's lands, on the payment of the money, the use could have arisen without deed by parol; but if the use was in consideration of blood, then it could not arise by parol agreement without a deed, because that agreement was not an obliging agreement: it wanted a consideration, and therefore, to make it an obliging agreement, there was necessity of a deed.' Jones v. Morley, 12 Mod. 161.

"Thus, if equity be governed by the strict analogy of uses, the court cannot act upon meritorious consideration where the contract is by parol; and though, where the agreement is under seal, the argument of analogy applies, yet it follows not that equity will now raise a trust because formerly it would have created a use. A bargain and sale for 5s. consideration still operates by way of conveyance to transfer the estate; but should the bargain and sale be void as such for want of an indenture or an indenture duly enrolled, it could not be argued that the agreement at the present day would be specifically executed upon the basis of a trust. It may further be remarked, that if the covenant to stand seized to uses were now to regulate the administration of trusts, there would still be no ground for extending the relief to creditors, who, however, it is admitted on all hands, are equally entitled to the benefit of meritorious consideration. And the covenant to stand seized to uses extended, we must remember, not only to wife and child, but also to brothers, nephews, and cousins; but no one at the present day would think of admitting the same latitude in the execution of a trust.

"With respect to the jurisdiction of the court in supplying surrenders of copyholds, the principle upon which the relief is founded appears to be this, that as the heir was never meant by the law to take otherwise than in

founded upon a meritorious consideration, if the instrument is under seal, though the rule is not fully established, and

default of the ancestor's will, if the ancestor manifests any intention in favor of a meritorious object, the court will not suffer the mere want of form to carry a benefit to the representative. I have looked,' said Lord Alvanley,

' at all the cases I can find upon what principle this court goes in supplying the defect. It is this, - whenever a man, having power over an estate, whether ownership or not, in discharge of moral or natural obligation, shows an intention to execute such power, the court will operate upon the conscience of the heir to make him perfect this intention. This is not to be confounded with the case of the heirs being disinherited by a will of freeholds not duly executed: there is no will at all. The court cannot see that

1 Stone v. Stone, L. R. 5 Ch. 74; Shepherd v. Bevin, 4 Md. Ch. 133; 9 Gill, 32; Harris v. Haines, 6 Md. 435; McIntire v. Hughes, 4 Bibb, 186; Mahan v. Mahan, 7 B. Mon. 579; Bright v. Bright, 8 B. Mon. 194; Dennison v. Goehring, 7 Barr, 175; Hayes v. Kershaw, 1 Sand. 258; Taylor v. James, 4 Des. 5; Caldwell v. Williams, 1 Bai. Eq. 175; Garner v. Garner, 1 Busb. Eq. 1; Jones v. Obinchain, 10 Gratt. 259; Harvey v. Alexander, 1 Rand. 219; Blackely v. Holton, 5 Dana, 520; 2 Spence, Eq. Jur. 58; Pennington v. Gitting, 2 Gill & J. 208; Tolar v. Tolar, Dev. Ch. 451; Thompson v. Thompson, 2 How. (Miss.) 737; Woodson v. McClelland, 4 Miss. 495. But see Taylor v. Taylor, 2 Humph. 597; Martin v. Ramsey, 5 Humph. 349; Campbell's Estate, 7 Barr, 101; Kennedy v. Ware, 1 Barr, 445; Cressman's Appeal, 42 Pa. St. 155; Bunn v. Winthrop, 1 Johns. Ch. 329. The above cases of McIntire v. Hughes, Mahan v. Mahan, and Bright v. Bright, are direct decisions upon the point, and fully establish the rule for the State of Kentucky, while the cases of Bunn v. Winthrop, Dennison v. Goehring, Jones v. Obinchain, and most of the other cases, presented a completely executed trust for enforcement, and the court was not called upon to decide whether a meritorious consideration alone would support an executory trust. In Hayes v. Kershaw, the settlement was for a collateral relative, and the Vice-Chancellor declined to support it, but intimated in strong language that an executory trust for a wife or child would be supported upon meritorious consideration merely. The cases are very fully commented upon by the learned editors to 1 Lead. Cas. in Eq. 330-333, with a strong leaning to the opinion that voluntary executory trusts for a wife or child would be supported. The learned editors also express strong doubts whether the case of Ellis v. Nimmo, 1 Lloyd & Goold, 333, is overruled by the cases which are usually thought to overrule it; and their criticism is ingenious and acute. They do not, however, advert to the case of Moore v. Crofton, 3 Jon. & La. 442. See Cox v. Sprigg, 6 Md. 274.