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Key facts
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equity &
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trusts
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a
3rd edition
f
y
e
Chris Turner
k
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British Library Cataloguing in Publication Data

A catalogue record for this title is available from The British Library.
ISBN 978 1 444 110883
First published 2003

Second Edition 2006
This Edition published 2011
Impression number 10 9 8 7 6 5 4 3 2 1
Year 2015 2014 2013 2012 2011
Copyright © 2003, 2006, 2011 Chris Turner
All rights reserved. No part of this publication may be reproduced or transmitted in any
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London NW1 3BH by CPI Cox & Wyman Ltd, Reading, RG1 8EX
Contents
Preface iv
Chapter 1 Introduction to equity and trusts 01

Chapter 2 The creation of express private trusts 13
Chapter 3 Purpose trusts 21
Chapter 4 Constitution of trusts 29
Chapter 5 Secret trusts 35
Chapter 6 Protective and discretionary trusts 41
Chapter 7 Resulting trusts and constructive trusts 45
Chapter 8 Charitable trusts 63
Chapter 9 The nature of trusteeship 79
Chapter 10 The duties of the trustees 85
Chapter 11 The powers of trustees 99
Chapter 12 Variation of trusts 109
Chapter 13 Breach of trust and remedies 115
Index 127
Preface
The Key Facts series is a practical and complete revision aid that can be
used by students of law courses at all levels from A Level to degree and
beyond, and in professional and vocational courses. Equity and trusts is
generally studied only at degree level or above in either postgraduate or
on some professional courses, and also on ILEX Part 2 courses.
The Key Facts series is designed to give a clear view of each subject.
This will be useful to students when tackling new topics and is invalu-
able as a revision aid. Most chapters open with an outline in diagram
form of the points covered in that chapter. The points are then developed
in a structured list form to make learning easier. Supporting cases are
given throughout by name and, for some complex areas, facts are given to
reinforce the point being made.
The Key Facts series aims to accommodate the syllabus content of most
qualifications in a subject area, using many visual learning aids.
The topics covered for equity and trusts include all of those contained in
mainstream syllabuses. Equity and trusts is often seen as a fairly dry and
dull area. In fact it is actually more relevant to most people’s lives than,
for example, criminal law, which is a very popular area of study. Anyone
who jointly owns a domestic home or who wants to leave property in a
will to underage children, or who has anything to do with charity work or
who has a private pension, for instance, would be able to identify what a
very practical and useful subject it is.
The law is stated as I believe it to be on 1 October 2010.
1
Introduction to Equity and Trusts
History of equity Equitable maxims

l Defects in common law writ system l Equity acts in personam.
and inadequate remedies. l Equity looks to intention, not the
l Petitioning of king for fair solution as form.
‘fountain of justice’. l Delay defeats equity.
l Delegation of task to Lord Chancellor. l Equity regards that which should be
l Creation of separate Court of done as being done.
Chancery – staffed by clerics. l Equity is equality.
l Solutions based on discretion of court. l He who comes to equity must come
l Conflict in Earl of Oxford’s case – in with clean hands.
conflict, equity prevails. l Equity will not assist a volunteer.
l Merged with common law in l First in time prevails.
Judicature Acts 1873 and 1875.
l Equity will not suffer a wrong to be
l Still developing, e.g. search orders without a remedy.
and freezing injunctions.
l Equity will not allow statute to be
used as an engine of fraud.
l Equity follows the law.
Equitable remedies Definition/classification of trusts

l Injunctions – to prevent occurrences l Settlor/donor transfers real or
such as a breach of trust. personal property to trustee to use
l Specific performance – to ensure a for benefit of beneficiaries or for
contract is carried out. purposes (charity).
l Rescission – to return parties to a l Can be expressed by settlor, implied

pre-contractual position. by law or statutory.
l Rectification – to change a document l Can be private (human beneficiaries)

to reflect an actual agreement. or public, e.g. charitable purposes.
l Can be fixed (settlor’s terms) or
discretionary (decided by trustee).
02 Introduction to Equity and Trusts
Equitable interests Context of Trusts

l Equitable redemption of a mortgage – l Pension funds.
to allow larger loans with security for l Investment – unit trusts.
lender, based on legal title.
l Security for loans.
l Lien – to hold property till a debt
l Voluntary arrangements with creditors.
paid.
l NHS trusts.
l Restrictive covenants – to retain
control over use of land sold. l Trade union funds.
l Easements – to enable legitimate use l Co-ownership.

of another person’s land. l Clubs and unincorporated associations.
l The trust itself – a means of splitting l Charities.
legal and beneficial ownership to l Non-charitable purposes.
protect beneficial owner by allowing
him to enforce terms of trust. l Protection of minors.
l Nominees in property transfers.
l Protective trusts.
l Secret trusts.
l Preserving wealth.
l Disputes over property ownership.
l Tax saving.
1.1 A brief history of equity

1.1.1 The origins of equity
1. Following the Norman Conquest, law was at first administered by the
King’s Council, the Curia Regis.
2. Later, a system of courts was developed with specific jurisdiction.
3. Henry II played a major role in developing the legal system and
created a professional judiciary, administering courts that dispensed
justice on ‘circuits’ travelling around country, and in a settled bench at
Westminster.
4. But common law was formal, slow-moving and highly technical.
5. A variety of significant defects – it was out of need to inject fairness and
justice into the legal system that equity grew. Defects included:
A brief history of equity 03
■■ the writ system developed so that judges could reach decisions

based on established legal reasoning;
■■ but became very formalised and maxim ‘no remedy without a writ’;
■■ writ system also depended on ‘oral pleading’ – which had
deficiencies – a mistake in reciting the Latin could lose the action;
■■ with growth in number of writs to respond to new ‘original’ types of
action, law became bulky for lawyers who were bound to remember
writs for oral pleadings;
■■ because of this, Provisions of Oxford 1258 and Statute of
Westminster 1285 restricted introduction of new writs – with
consequent injustice to potential claimants without a formal claim;
■■ use of juries unpredictable as jurors (in trial by presentiment, in
effect a type of witness) could be bribed or intimidated;
■■ common law courts provided only one remedy – damages, or
money compensation – often an ineffective remedy, particularly in
the case of interference in a person’s property rights;
■■ common law preoccupied with form – e.g. parol evidence rule.
6. Equity developed to combat deficiencies – initially from disgruntled
litigants petitioning the king for fairer answer as ‘fountain of all
justice’.
7. But extent to which people petitioned him led to delegation of
responsibility to the Lord Chancellor – who was a cleric (churchman),
and considered to be ‘keeper of the king’s conscience’.
8. Extent of petitioning led to creation of separate court – Court of
Chancery, staffed by clerks of Chancellor – independent court in 1474.
9. Court not bound by writ system – based decisions on fact, not law –
and cases heard in English, not Latin.
10. New procedures introduced included:
■■ an order for disclosure of documents;
■■ a subpoena to compel attendance in court for examination.
11. Because Chancery overruled decisions of the common law courts,
conflict developed between the two.
12. That decisions were based on discretion was a source of contempt in
the common law courts – hence John Sedden’s criticism that ‘if the
measure of equity was the Chancellor’s own conscience, one might as
well make the standard measure of one foot the Chancellor’s foot’.
13. Conflict came to a head in the Earl of Oxford’s case (1616). Ellesmere
incensed Chief Justice Coke of Common Pleas by issuing writs of
habeas corpus, and the king decided that in conflict, equity would
prevail.
14. Eventually, equity became just as formalised as common law and
subject to its own technicalities and was heavily criticised in the
nineteenth century for excessive delays. In the Judicature Acts 1873
and 1875, Court of Chancery became a division of new High Court
and equitable remedies could be awarded in any court alongside
common law remedy of damages.
15. As a result of potential conflict when administering both types of
remedies, s25 Judicature Act 1873 provided that in event of a conflict
of principles, equitable principle should prevail.
16. So equity defined as ‘that body of legal principles built up by the old
Court of Chancery, supplemental and superior to the common law’.
17. And equity has been responsible for creating a variety of interests and
remedies otherwise unavailable at common law, and is still capable of
expanding, e.g. search orders, freezing injunctions.
1.1.2 The equitable maxims

1. The basic character of equity and its key purpose was to introduce
fairness and justice into law – on which basis a system of determining
the outcome of disputes also evolved, based on reaching a fair solution.
2. These principles guiding judges in a court of equity developed and are
known as the maxims of equity – all have to do with fairness.
3. They are guiding principles and so are only followed subject to the
discretion of the court – they include:
■■ equity acts in personam:
■■ an equitable dispute is between the parties;
■■ so it will not pass onto a third party.
■■ equity looks to the intention not the form:
■■ the classic example is equitable redemption of a mortgage;
■■ the purpose of the mortgage is to secure a higher loan than would
otherwise be possible;
■■ and the mortgagee is protected by being granted beneficial rights
in the property by the mortgagor.
■■ delay defeats equity:

■■ the equitable equivalent of limitation;
■■ if a person seeking an equitable solution to a legal problem fails to
bring an action in a reasonable time, he may lose remedy (Allcard
v Skinner (1887); Leaf v International Galleries (1950) (both contract
law cases)).
■■ equity regards that which should be done as being done:
■■ the remedy of specific performance is an obvious example;
■■ as is the rule in Howe v Earl of Dartmouth (1802) on the duty to act
fairly between beneficiaries.
■■ equity is equality:
■■ equity tends towards an equal division of property unless the
contrary is shown (Burrough v Philcox (1840)).
■■ he who comes to equity must come with clean hands – and – he
who seeks equity must do equity:
■■ both involve the unwillingness of equity to produce a remedy for
a party who himself behaves unconscionably;
■■ first refers to past conduct – denial of specific performance for
trying to take advantage of a mistake in a document of transfer
(Webster v Cecil (1861));
■■ second demands a basic standard for future conduct – person
seeking an injunction to prevent a breach of contract must be
prepared to perform his side of the bargain (Chappell v Times
Newspapers (1975)).
■■ equity will not assist a volunteer:
■■ where there is a covenant to settle property by trust, the trust is
only enforceable by those who have provided consideration;
■■ however, the rule has some well established exceptions.
■■ where equities are equal, the first in time prevails:
■■ whenever trying to assert any equitable right against owner of an
existing equitable right.
■■ equity will not suffer a wrong to be without a remedy:
■■ includes remedies such as specific performance and injunctions –
because damages inadequate;
■■ and the trust itself – which allows the beneficial owner to enforce
the trust against the legal owner, the trustee.
■■ equity will not allow statute to be used as an engine of fraud:
■■ commonly used where to allow a party to rely on a statutory
provision is another’s detriment, e.g. the requirement of writing
in s53 Law of Property Act 1925 (Bannister v Bannister);
■■ also the basis of the secret trust – trust enforceable despite not
conforming to the Wills Act.
■■ equity follows the law:
■■ equity acts in personam by seeking to prevent injustice, not by
replacing or overruling common law;
■■ so restrictive covenants enforced to avoid unconscionable
behaviour by parties subject to them (and genuine interests of
legal owner of land are not interfered with);
■■ but positive covenants are not enforced because this would
interfere with the common law doctrine of privity (the person
trying to enforce the covenant not being a party to it).
1.1.3 Equitable interests (beside the trust)

1. Equitable redemption of a mortgage:
■■ equitable redemption of a mortgage allows wider land ownership;
■■ involves conveyance of equitable interests in property with
provision for redemption, i.e. upon repayment of the loan but will
usually now be a legal mortgage;
■■ mortgagor can use land purchased as collateral for loan;
■■ mortgagee holds legal interest in land so loan is protected if
mortgagor defaults on loan.
2. Lien:
■■ a device of commercial law that again splits proprietary interests;
■■ creditor of a debt can legally hold property that is subject to the debt
until the debt is paid.
3. Restrictive covenants:
■■ a way of retaining proprietary interest over land that has been sold;
■■ vendor inserts a covenant with initial purchaser, i.e. preventing use
of land for business purposes;
■■ all subsequent owners of the land are bound – and all subsequent
owners of the vendor’s land can enforce the covenant.
4. Easements:
■■ a means of securing rights over another person’s property;
■■ could be, e.g. rights of way – and are enforceable;
■■ easements can also be legal.
1.1.4 Equitable remedies

1. Injunctions:
■■ an enforceable order of the court to prevent unjust behaviour, e.g.
breach of contract, breach of trust;
■■ usually prohibitory rather than mandatory because of the difficulty
of overseeing them otherwise;
■■ can be final (include all necessary relief), or interim (in advance of
trial of the issue).
2. Specific performance:
■■ enforceable order of court for contract be carried out,
e.g. transfer of land;
■■ because of difficulty of enforcing, only available where subject of
contract is unique, e.g. land; and damages would be inadequate –
compare Ryan v Mutual Tontine (Westminster Chambers) Association
(1893) with Posner v Scott-Lewis (1987).
3. Rescission:
■■ more of relevance to contracts;
■■ where a vitiating factor would make the contract voidable by
one party, rescission is a remedy putting the parties back to their
pre-contractual position if that is possible to achieve.
4. Rectification:
■■ appropriate where a written contract is inaccurate as to the actual
terms of the contract;
■■ where equitable, court will order a written document to be changed
to reflect actual agreement – outcome in Webster v Cecil (1861).
5. Account:
■■ a trustee must account for all profits made from the position as
trustee or for any losses caused to the trust;
■■ this is part of the trustee’s personal liability.
6. Tracing:
■■ tracing is a proprietary remedy;
■■ and is a basic means of recovering property belonging to the trust.
1.1.5 The scope for expansion and development

1. Lord Denning in particular thought that there was scope to use equity
to continue to add fairness and justice to the law.
2. The ‘fair and equitable’ cases in implied co-ownership illustrate this,

with resulting and constructive trusts used interchangeably.
3. Developments of specific uses for injunctions also show expansion:
■■ search orders – originally Anton Piller orders – originated in Anton
Piller KG v Manufacturing Processes Ltd (1976) to permit entry to
defendant’s premises to search for documents that may incriminate
the defendant – so subject to strict constraints;
■■ freezing injunctions – originally Mareva injunctions – originated in
Mareva Compania Naviera SA v International Bulk Carriers SA (1975) as
means of preventing defendant from disposing of assets to defeat a
judgment – so only awarded subject to strict controls, otherwise may
force defendant out of business.
1.2 The basic character of a trust

1.2.1 The nature of the trust
1. The trust is an instrument originally devised by equity.
2. It helps to distinguish between legal and beneficial ownership of
property and also to protect beneficial interests.
3. Legal title vests in trustees while beneficial entitlement is with
beneficiaries (in certain cases, e.g. express co-ownership, these may be
the same people).
4. Trustees must carry out requirements of trust according to what is in
the trust instrument or according to law.
5. Courts will uphold wishes of settlor/testator and protect legitimate
interests of all beneficiaries.
6. Mechanism preserves the justice (equity) of the situation.
1.2.2 Definition of a trust

1. A trust is:
■■ a legal (equitable) arrangement by which:
■■ one person, called settlor/donor (inter vivos) or testator (on
death);
■■ transfers title in property (whether realty or personalty);
The basic character of a trust 09
■■ to another person(s) called the trustee(s) (the person(s)

responsible for administering the trust).
■■ in doing this the settlor/testator, through the trust instrument, (or
the courts in certain instances):
■■ directs the trustee(s) to hold or use the property;
■■ for the benefit of certain persons (donees under an inter vivos gift
– beneficiaries in inheritance on death);
■■ or for the promotion of certain purposes (and with few exceptions
these purposes must be charitable).
2. If the trustee(s) undertake(s) to carry out directions of settlor/testator
(or of court) then they become subject to a binding legal obligation
which equity will enforce.
1.2.3 Classifications of trusts

1. Trusts can be classified in different ways according to context.
2. These include:
■■ classification according to method of creation:
■■ express trusts – created by settlor/testator;
■■ implied trusts – created usually by operation of law;
■■ statutory trusts – ‘trusts of land’ under Trusts of Land and
Appointment of Trustees Act 1996.
■■ classification according to type of beneficiary:
■■ private trusts – for individual beneficiaries or classes of
beneficiary;
■■ public trusts – usually for a purpose, i.e. charities.
■■ classification according to the character of the interest:
■■ fixed trusts – an exact sum identified by the settlor/testator or the
residuary estate;
■■ discretionary trusts – the interest and the exact distribution of the
property is identified by the trustee.
1.2.4 The context in which trusts operate

1. Trusts originated to protect the family interests of absent knights.
2. The simple mechanism of splitting legal and beneficial interests
in property has allowed trusts to expand and gain a context in the
modern world as a means of responding flexibly to most problems
thrown up by property ownership.
3. Different uses of the trust include:

■■ pension funds:
■■ trust used to protect the fund;
■■ and for tax concessions advantage.
■■ investment – unit trusts:
■■ safer way to invest in shares;
■■ because the fund is managed by trustees.
■■ security for loans:
■■ copying traditional mechanism of mortgage in real property;
■■ trusts can be attached to loans generally to protect the loan
(Barclays Bank v Quistclose Investments Ltd (1968)).
■■ voluntary arrangements with creditors:
■■ creditors subject to the arrangement can be protected as against
other creditors, e.g. during liquidation.
■■ NHS trusts:
■■ users of services are not quite in same position as beneficiaries of
a trust;
■■ but management and administration of facilities are handled in
the same way;
■■ created by National Health Service and Community Care Act
1990.
■■ trade union funds:
■■ s2 Trade union and Labour Relations Act 1974;
■■ means funds held on trust for benefit of Union (not members).
■■ co-ownership of land:
■■ trust is the accepted method of joint ownership of property;
■■ before 1996 as a trust for sale;
■■ since the Trusts of Land and Appointment of Trustees Act
(TOLATA) 1996 as a trust of land.
■■ clubs and other unincorporated associations:
■■ only incorporation creates a separate legal personality;
■■ so if unincorporated, then trust is means of holding property for
benefit of members.
■■ charities:
■■ the most common purpose trust;
■■ but subject to various requirements.
■■ non-charitable purpose trusts:
■■ can be trusts for monuments or tombs;
■■ and specific animals.
The basic character of a trust 11
■■ Protection of minors’ interests:

■■ Law of Property Act 1925 prevents minors from holding the legal
estate of land;
■■ originally any gift of land to a minor would create a settlement
under Settled Land Act 1925;
■■ now it would create a trust of land under TOLATA 1996.
■■ use of nominees in property transfers:
■■ common in larger purchases of shares;
■■ used to hide identity of real purchaser.
■■ protective trusts:
■■ devised to allow a financially inept beneficiary to have some
control over the property;
■■ while trustees will ensure that the trust fund does not suffer.
■■ secret trusts:
■■ can be fully secret or half secret;
■■ but in either case trust hides identity of the beneficiary.
■■ preserving wealth:
■■ trusts can be used to keep intact a body of wealth that otherwise
may be dissipated.
■■ disputes over property ownership:
■■ courts may intervene using implied trusts;
■■ to distribute ownership fairly.
■■ tax saving:
■■ placing property in trust is a common tax saving device;
■■ example is avoiding inheritance tax.
This page intentionally left blank
2
The Creation of Express
Private Trusts
Capacity: Trusts of land:

• children – settlements are • testamentary requirements of Wills Act
voidable – cannot hold land • words used must be capable of forming trust
other than behind a trust • s53 LPA 1925 requires proof in writing
• mentally incapacitated • s2 Law of Property (Miscellaneous Provisions) Act
– protected by Court of 1989 requires actual written document incorporating
Protection under s95 Mental all of terms (Firstpast Homes v Johnson).
Health Act 1983 – and can
create trusts (Re Bearley).
The three certainties:
Trust must be expressed in such a way that the
testator’s instructions can be carried out.
CREATION Certainty of intention:
OF EXPRESS • words should express an imperative obligation
(Wright v Atkyns)
PRIVATE TRUSTS • so if words demonstrate a different obligation
no trust is created (Jones v Lock)
• precatory words, e.g. ‘hope’, ‘desire’ may be
too uncertain for trust to succeed (Re Adams
and the Kensington Vestry) – but see Comisky
Disposition of existing v Bowring-Hanbury.
Certainty of subject matter:
equitable interests: • gift must be precisely identified – so ‘remaining
• by s53(1)(c) must be in part of what is left’ would fail (Sprange v
writing or disposition void Barnard)
• problem is what amounts to a • position on shares is different (Hunter v Moss
disposition – most likely given (1994))
natural meaning (Grey v IRC) • court may use objective standard in deciding
• some actions do not count as what comes within gift (Re Golay’s).
dispositions, e.g. disclaimer Certainty of objects:
of a beneficial interest (Re • the beneficiaries should be clearly identified –
Paradise Motor Co) or if part of a class ‘list principle’ applies
• where sole owner disposes (Re Endacott)
of legal and equitable • trustees may use ‘Benjamin orders’ for
title together no written protection when distributing funds
disposition needed • in discretionary trusts ‘any given postulant’ test
(Vandervell v IRC) is used – based on conceptual and evidential
• position of specifically certainty (McPhail v Doulton)
performable contracts is • unless class is too large then uses ‘administrative
more problematic (Oughtred workability’ test (R v District Auditor ex parte
v IRC). West Yorkshire County Council).
14 The Creation of Express Private Trusts
2.1 Capacity and the creation of trusts

1. Capacity to create a trust usually goes hand in hand with the ability to
hold or dispose of legal or equitable interests.
2. So two specific instances of parties lacking capacity to create a trust:
■■ children – minors under age 18:
■■ any settlement is voidable;
■■ children cannot hold a legal estate in land – so any land comes to
a child behind a trust.
■■ mentally incapacitated:
■■ ability to create a trust is limited by the size of the gift and
relationship with assets owned (Re Beaney (1978));
■■ Court of Protection can produce settlement for a mentally
incapacitated person by virtue of s95 Mental Health Act 1983 –
guiding principle being what would the person him/herself do if
not incapacitated (Re T.B. (1967)).
2.2 Formalities – general

1. To create a lifetime gift of land – must conform to s53 Law of Property
Act 1925 and the ‘three certainties’.
2. S53 requires written evidence for land – no requirement for personalty.
3. If gift is testamentary, additional requirements in Wills Act 1837, as
amended, must be followed – written form, signing, witnessing etc.
4. Words used must also always be capable of creating a trust.
5. All the above applies to express trusts but not resulting or constructive.
2.3 Trusts of land

1. Land inevitably requires special formalities – as it does in law of real
property.
2. In the case of trusts of land, two specific provisions are significant:
■■ by s53(1)(b) LPA 1925 ‘A declaration of trust respecting any land or
any interest therein must be manifested and proved by some
writing signed by the person who is able to declare such a trust or
by his will’;
Dispositions of existing equitable interests 15
■■ by s2 Law of Property (Miscellaneous Provisions) Act 1989 contracts

for disposition of land ‘can only be made in writing and only by
incorporating all of the terms which the parties have expressly
agreed in one document’ – so dispositions of land, including trust,
are void if not written (Firstpost Homes v Johnson (1995)).
2.4 Dispositions of existing equitable

interests
1. By s53(1)(c) LPA 1925 ‘A disposition of an equitable interest or trust
subsisting at the time of the disposition must be in writing signed
by the person disposing of the same or by his agent thereto lawfully
authorised in writing or by will.’
2. So failure to comply means disposition is void.
3. Key question is what amounts to a ‘disposition’.
4. Most cases on meaning of disposition involve tax avoidance schemes –
so not surprising that courts take a tough line.
5. Case law suggests that the word ‘disposition’ is to be given its natural
meaning (Grey v IRC (1957)) – so oral instructions will count as a failed
disposition for lack of written form.
6. However, where a sole owner disposes of both legal and equitable
title simultaneously there may be no need for a written disposition of
the equitable interest as long as the formalities for the legal estate are
complied with (Vandervell v IRC (1967)).
7. An assignment of an equitable interest is straightforwardly a
disposition and will be void unless in writing.
8. However, certain actions appear not to be dispositions, e.g.:
■■ a disclaimer of a beneficial interest (Re Paradise Motor Co (1968));
■■ nominations under a staff pension scheme (Re Danish Bacon Co Staff
Pension Fund Trusts (1971));
■■ a declaration by a beneficiary that he holds his beneficial interest for
someone else.
9. The much more difficult question concerns the position of specifically
enforceable contracts for sale – here the main emphasis may be
on preventing tax avoidance rather than following technicalities
absolutely (Oughtred v IRC (1960)).
16 The Creation of Express Private Trusts
2.5 Formality and fraud

1. One further key issue is whether or not a trust can be set aside to avoid
sanctioning fraud.
2. Two equitable maxims may apply:
■■ equity looks to the intention and not the form;
■■ equity will not allow statute to be used as a cloak of fraud.
3. It has been held possible to set aside operation of s53(1)(b) in order to
avoid obvious fraud (Rochefoucauld v Boustead (1897)).
4. A further example of equity acting to prevent a fraud is the secret trust.
2.6 The three certainties

2.6.1 Introduction
1. For a trust to be formed, settlor must make intentions absolutely clear.
2. So the trust must be sufficiently clear for trustee to carry out all
instructions and for court to be able to enforce it against trustee.
3. So, besides statutory formalities, creation of an express private trust
depends on the presence of the ‘three certainties’ test laid down by
Lord Langdale in Knight v Knight (1840):
■■ certainty of intention – the words creating a binding obligation;
■■ certainty of subject matter – the property subject to the trust;
■■ certainty of objects – the beneficiaries.
4. But certainty has entirely different meaning in relation to purpose trusts.
5. In all cases there is interrelationship between the three and certainty is
a question of construction for the courts.
2.6.2 Certainty of intention

1. The most significant point is that the ‘words must be imperative’ Lord
Eldon in (Wright v Atkyns (1823)).
2. The words must make clear that trustee is under a binding obligation.
3. The best words are clearly ‘to hold upon trust for’ – but the word ‘trust’
is not vital – Megarry J in Re Kayford (1975), and it may not even be
necessary to use the word ‘trustee’ (Staden v Jones (2008)).
The three certainties 17
4. Only sufficient intention to create a trust must be shown (Paul v

Constance (1977)).
5. If the words demonstrate a different intention then there is no trust
created (Jones v Lock (1865)).
6. A further difficulty concerns use of ‘precatory’ words, e.g. ‘hope’,
‘desire’.
7. Traditionally, it was accepted that these could still create a trust – but a
turning point came in Lambe v Eames (1871).
8. And they are generally now taken to be too uncertain to create a trust
(Re Adams and the Kensington Vestry (1884)).
9. But context is all important and it is still possible to construe a trust
from precatory words if sufficient intention can be found (Comiskey v
Bowring-Hanbury (1905)).
10. Specific words accepted in the past as creating or not creating a trust
can act as precedents (Re Steele’s Will Trusts (1948)).
11. But courts only accept trust intended to be acted upon – and reject a
sham covering an ulterior purpose (Midland Bank plc v Wyatt (1995)).
12. A court will accept evidence of conduct as sufficient to show an
intention to create a trust (Re Farepak Foods and Gifts Ltd (2008)).
2.6.3 Certainty of subject matter

1. Almost anything can form the subject matter of a trust – but the
property settled must be identified precisely.
2. So many examples of choice of words that failed to create a trust:
■■ ‘the bulk of my estate’ (Palmer v Simmonds (1854));
■■ ‘such parts of my estate as she shall not have sold’ (Re Jones (1898));
■■ ‘the remaining part of what is left’ (Sprange v Barnard (1789)).
3. In the case of chattels if the specific property is not identified then, as is
the case with commercial law where property will not pass, neither will
a trust be created (Re Goldcorp Exchange Ltd (1994)).
4. Although quite different problems are created where the property is
shares (Hunter v Moss (1994)).
5. So the position is different (Re London Wine Co (Shippers) (1986)).
18 The Creation of Express Private Trusts The three certainties
6. Absence of certainty of subject matter can have two possible results:

■■ the gift goes absolutely to the first donee;
■■ the gift fails and falls on resulting trust back to the settlor’s estate
(Sprange v Barnard (1789)).
7. One further problem, besides identifying what property comes within
the trust, is how it is distributed between beneficiaries – in which the
court might use an objective standard (Re Golay’s Will Trusts (1965)).
8. But if division of property left to discretion of specific individual who
can no longer exercise discretion then gift fails (Boyce v Boyce (1849)).
2.6.4 Certainty of objects

1. In fixed trusts (i.e. where obligation is to named beneficiaries or to all
members of a named class), trustees must know the precise identities of
the objects – known as the ‘list principle’ (Re Endacott (1959)):
■■ in fixed trusts the restrictive principle still applies so where a class
of beneficiaries is named in an inconclusive way the gift fails and
property returns to the settlor under a resulting trust (OT Computers
Ltd v First National Tricity Finance Ltd (2003)).
2. The general rule is that the description of the beneficiaries should be
neither conceptually nor evidentially uncertain – otherwise gift
will fail.
3. To avoid unfairness when the class is certain but individual members
cannot be found the courts have developed the ‘Benjamin order’ from
Re Benjamin (1902) – this authorises distribution to known beneficiaries
and missing beneficiaries then claim against existing beneficiaries
rather than against the trustees.
4. The rule on certainty of objects should be no wider than necessary to
allow the trustees to undertake their duties properly.
5. Traditionally, with discretionary trusts, same rule applied –
beneficiaries must all be identifiable (IRC v Broadway Cottage Trust
(1955)).
6. In McPhail v Doulton (1971) the position was examined in detail since
with the size of the apparent class of beneficiaries equal distribution
would have been completely impracticable:
■■ the court adopted the ‘any given postulant test’ derived from rules
on powers in Re Gulbenkian (1968): ‘power is valid if it can be said
with certainty whether any given individual is or is not a member
The three certainties 19
of the class and does not fail simply because it is impossible to

ascertain every member of the class’.
■■ in analysing test CA (in Re Baden’s Deed Trusts (No 2) (1972))
distinguished between conceptual and evidential certainty:
■■ ‘conceptual’ means precise definition of class settlor wishes to
benefit – without which gift fails;
■■ ‘evidential’ means extent to which evidentially a person can be
included in the class – complete certainty virtually impossible.
■■ court accepted that some people would definitely come within class
and some would definitely fall outside it – in the case of others they
would fall outside class unless they could prove they were within it;
■■ it is of course possible for a class to be so wide that it could not be
upheld even though both conceptual and evidential certainty tests
from McPhail v Doulton possible – then court suggested a further test
of ‘administrative workability’ – since applied in R v District Auditor
ex parte West Yorkshire County Council (1998).
Is the gift land or personalty?
LAND PERSONALTY
Is s53 LPA 25 complied GIFT IS

NO
with? – Gift is in writing INVALID
YES
Does gift comply with the ‘three certainties’?

• Intention is clear from words (certainty of intention).
• The gift is plainly stated or is residue (certainty of subject).
• The identity of beneficiaries are known – and if a class the class is not too wide
(certainty of objects).
YES
VALID EXPRESS PRIVATE TRUST IS FORMED
Diagram illustrating the major requirements for valid formation of express private trusts
3
Purpose Trusts
Objections to Accepted non-charitable purpose

purpose treats: trusts:
• lack of certainty (Morice v Upkeep of tombs and monuments:
Bishop of Durham) • e.g. for a family enclosure (Pirbright v Salway)
• lack of ascertainable • if involves moderate expenditure
beneficiaries – so needs (McCaig);certain (Re Endacott); and satisfies
residuary beneficiary perpetuity rule (Re Hooper).
• offends perpetuity – so only Maintenance of specific animals:
valid if expressed to fall • will fail test for charitable purpose (Pettingall v
inside period Pettingall)
• policy reasons, e.g. should • valid if perpetuity rule met (Re Dean).
not involve capricious
Saying of masses:
expenditure (McCaig’s
• private masses fail charity tests
Trustees).
• but upheld here (Bourne v Keane).
PURPOSE
TRUSTS
The rules on unincorporated associations:

• two or more people joined for ‘common purposes … each having mutual duties …
in an organisation [with] rules which identify in whom control of it and its funds’
(Conservative and Unionist Central Ofﬁce v Burrell)
• question of what happens to gifts to such associations decided in Neville Estates v
Madden – gift is to existing members … subject to their respective contractual rights
and liabilities towards one another
• but gift fails if rules offend perpetuity period or rules prevent members from ending
association and dividing fund (Re Lipinski’s Will Trusts)
• so each member has contractual obligations to prevent misapplication of gift – and
committee members are also bound by rules which may be enforced against them
• alternative is that gift is purely for members but difficulty is that members must be
ascertainable (Re Denley’s Trust Deed)
• distribution originally based on resulting trust (Re Printers’ and Transferrers’
Amalgamated Trades Protection Society) but now on contract basis above (Re The
Sick and Funeral Society of St John’s Sunday School Golcan).
22 Purpose Trusts
3.1 Non-charitable purpose trusts

3.1.1 General
1. A private trust is a trust in favour of ascertainable beneficiaries.
2. A charitable trust, on the other hand, is a trust for purposes which
according to established tests is accepted as charitable and thus exempt
from certain requirements of express private trusts.
3. Non-charitable purpose trusts fall outside of either category above.
4. They do not get the benefits accorded to charitable trusts – but in
certain cases may be upheld as valid.
5. One logic of accepting such categories of trusts is that, while they are
expressed as being for purposes, they can still possibly be construed as
being for the benefit of individuals affected by the purpose (Re Denley’s
Trust Deed (1969)).
6. But, the same logic cannot be applied where the class of beneficiaries is
too wide and therefore makes the trust ‘administratively unworkable’
(R v District Auditor ex parte West Yorkshire Metropolitan County Council
(1986)).
3.1.2 The objections to having purpose trusts

1. Traditionally there was no absolute prohibition on the creation of
non-charitable purposes – but a rule was developed in Re Endacott
(1960).
2. Traditionally such trusts failed because of defects in their creation, e.g.:
■■ lack of certainty;
■■ lack of an ascertainable beneficiary;
■■ offending the perpetuity period;
■■ excess delegation of testamentary powers.
3. Certainty:
■■ all trusts need certainty – and a non-charitable purpose trust is no
exception;
■■ so the purpose must be ‘stated in phrases which embody definite
concepts and the means by which the trustees are to try to attain
them must also be prescribed with a sufficient degree of certainty’
(Roxburgh J in Re Astor (1952));
Non-charitable purpose trusts 23
■■ the trust is only valid if expressed with sufficient certainty for court
to control performance (Morice v Bishop of Durham (1804)). So a trust
will fail for lack of ascertainable beneficiaries.
4. Ascertainable beneficiaries:
■■ many purpose trusts may indirectly benefit individuals – but unless
these rank as ascertainable beneficiaries then the trust fails – as
Grant MR identifies in Morice;
■■ it follows that there can be no obligation on the trustees without a
corresponding right enjoyed by an identifiable beneficiary;
■■ in the case of private trusts these are named beneficiaries – and in
charitable trusts the Attorney-General.
5. The perpetuity rule:
■■ the rule has two aspects: (i) no gift should fall outside the perpetuity
period; (ii) no gift should last for longer than the perpetuity period;
■■ the point of the rule at common law was originally to avoid tying
up land for excessive periods and the uncertainty such gifts could
create;
■■ the original perpetuity period at common law was – the life in being
plus 21 years (the life in being was some person alive at the time of
the gift – and the gift would fail if it could vest outside of the 21-year
period, e.g. ‘To the first child of A to reach the age of 25’);
■■ so non-charitable purpose trusts failed if could fall outside period;
■■ common law rule is modified by Perpetuities and Accumulations
Act 1964 – this Act allows the settlor to specify a period of no more
than 80 years, and introduces the principle of ‘wait and see’ (i.e. wait
to see if gift vests outside of period before invalidating it).
6. Policy:
■■ the courts may invalidate a gift which they feel is capricious or an
inappropriate way of spending the money (McCaig’s Trustees v The
Kirk Session of the United Free Church of Lismore (1915));
■■ delegation of testamentary power has also been challenged in Leahy
v A-G for New South Wales but accepted in Re Beatty’s Will Trusts
(1990).
3.1.3 Exceptions to the rule against non-charitable

purpose trusts
1. Despite valid objections to purpose trusts some exceptions exist.
24 Purpose Trusts
2. They are generally referred to as ‘trusts of imperfect obligation’ – are

anomalous, and fall into a limited range of specific exceptions.
3. Trusts for tombs and monuments:
■■ it is valid to provide a gift for creation and upkeep of a family
enclosure (Pirbright v Salway (1896));
■■ a gift may also succeed in respect of monuments to persons other
than the testator (Mussett v Bingle (1876));
■■ but the courts will only usually accept the use of quite moderate
sums of money for such gifts (McCaig);
■■ as usual, a gift fails for any lack of certainty (Re Endacott (1960));
■■ and in any case a gift is only valid if falling inside the perpetuity
period (Re Hooper (1932)).
4. Trusts for the maintenance of specific animals:
■■ a trust for animals generally can succeed as charitable if certain
conditions are met;
■■ a trust for an individual animal must necessarily fail as a charitable
gift – but might still be upheld as a non-charitable purpose trust
(Pettingall v Pettingall (1842));
■■ but not if such a gift offends perpetuity (Re Dean (1889));
■■ the perpetuity period must refer to human lives (Re Kelly (1932)).
5. Trusts for the saying of masses:
■■ a mass said in public place will generally be upheld as charitable (Re
Hetherington (1989));
■■ but a gift for purely private religious ceremonies cannot be classed
as charitable (Re Le Cren Clarke (1996));
■■ but this does not always matter since trusts for the saying of purely
private masses have been upheld as valid purpose trusts (Bourne v
Keane (1919)).
3.1.4 The modern position

1. In Re Astor’s Settlement Trusts (1952) it was suggested that all the
exceptions are merely ‘concessions to human weakness or sentiment’.
2. In Re Endacott (1960) it was also noted that they are ‘troublesome,
anomalous and aberrant’.
3. It is thus unlikely that they will be extended in any way.
4. However, the development of the discretionary trust in McPhail v
Doulton (1971) has been said to have ‘broken the stranglehold imposed
on the development of trusts’.
The rules on unincorporated associations 25
3.2 The rules on unincorporated

associations
3.2.1 The nature of unincorporated associations
1. An unincorporated association is a joining together of two or more
people for ‘common purposes by mutual undertakings, each having
mutual duties and obligations in an organisation which has rules
which identify in whom control of it and its funds rests and on what
terms and which may be joined or left at will’ (Conservative and Unionist
Central Office v Burrell (1982)).
2. Such associations lack the formal creation of incorporation so have no
separate legal personality so cannot hold property in their own right or
be the subject of rights and obligations in their own names.
3. The common classes of such groups include – sports and social clubs,
cultural groups and certain charitable bodies.
4. Such groups can still be the beneficiaries of gifts and also are required
to handle funds – so a number of significant problems arise:
■■ what happens to gifts made to these associations?
■■ how do these associations hold funds or property?
■■ what happens to funds on dissolution of the association?
3.2.2 Gifts made to unincorporated associations

1. If an association is charitable and a gift is for the association’s purposes
then it is taken as prima facie for charitable purposes – the usual rules
on certainty do not apply and even when the association ceases to exist
the gift can be saved by the cy-près doctrine.
2. If the association is not charitable then the gift is void as a purpose
trust unless falling under the very limited exceptions.
3. If a gift cannot take effect as a gift on trust for the purposes of the
association then the question arises how such gifts can take effect and
whether or not they can take effect as gifts to the members.
4. Originally it was thought that there was no need to identify who would
be the beneficiaries – as long as persons holding the gift as trustees had
the power to spend any money (Re Drummond (1914)).
26 Purpose Trusts
5. The different possible outcomes were considered in Neville Estates v

Madden (1961) where Cross J identified three possible categories:
■■ ‘a gift to the members … at the relevant date … so that any … can
sever his share and claim it’ (a gift to present members);
■■ ‘a gift to the existing members … subject to their respective
contractual rights and liabilities towards one another’ (a gift to
members subject to the constitutional rules of the association as to
members’ rights and liabilities);
■■ ‘a gift … at the disposal of the members for the time being … held in
trust’ (a gift on trust for members).
6. Where the trust instrument only states that the gift is to the association
then prima facie it may be construed as a gift for the members (Leahy v
A-G for New South Wales (1959)).
7. It is easier to see the first of Cross J’s three categories as acceptable if
the gift identifies clearly a limited class of persons who may benefit
from it (Re Denley’s Trust Deed (1969)).
8. The third of Cross J’s three categories throws up a number of other
points of note:
■■ that the trust mechanism is inappropriate if it is clear that the
members are not intended to benefit from the gift;
■■ that the gift, unless charitable, will fail unless limited by the
perpetuity period;
■■ also that gift cannot be to members if rules of association actually
prescribe against that eventuality (Re Grant’s Will Trusts (1980)).
9. The most plausible of the three alternatives is the second, that gift
takes effect as a gift to the members of the association subject to their
contractual rights and liabilities to one another – and it is this solution
that causes the least problems (Re Recher’s Will Trusts (1971)).
10. On this basis, the question as to whether or not the gift is subject to
any restrictions on its use depends on intentions of association as to
the relationship of its members rather than on explicit intention of
settlor. The gift will fail if rules of association offend perpetuity period
or if members are prevented by rules from ending association and
dividing the funds amongst themselves (Re Lipinski’s Will
Trusts (1976)).
The rules on unincorporated associations 27
3.2.3 Funds held by unincorporated associations

1. The problems are exactly the same as those identified above.
2. Again, the ‘contractual solution’ is the best.
3. Each member, therefore, has contractual obligations to prevent the
misapplication of the gift – and committee members are also bound by
the rules of the association which may be enforced against them.
4. The alternative based on trust poses the obvious problem that a trust
cannot generally be held for purposes unless charitable.
5. The alternative that the gift is purely for the members again has the
difficulty that the members must be ascertainable, as in Re Denley’s.
6. Other problems, of course, still exist – e.g. if the gift is one of land
rather than chattels.
3.2.4 Distribution of the fund

1. A final problem is what happens to the fund if the association is
wound up.
2. Many of the used solutions appear at odds with the reasoning above.
3. The general rule traditionally was that funds were held on resulting
trust for members according to their contribution (Re Printers’ and
Transferrers’ Amalgamated Trades Protection Society (1899)).
4. More modern approach is to follow contract argument – the logic
of using resulting trusts is at odds with the argument that gift is an
outright gift to members subject to the rules of the association (Re The
Sick and Funeral Society of St John’s Sunday School Golcan (1972)).
5. So where there are surplus funds, the court can imply a term that these
can be divided amongst the existing members on a per capita basis
(Hunt v McLaren (2006)).
6. And funds can be passed to a sole surviving member of the association
(Hanchette-Stamford v A.G. (2009)).
4
Constitution of Trusts
Formalities: Declaration of self as

• Trust complete if settlor is also trustee – but trustee:
if other trustees then incomplete till property
• Must be evidence of
passed to them.
intention to create trust.
• Transfer and formalities must be by
• For land would need
prescribed method.
written evidence.
• Chattels = delivery (Thomas v Times Books).
• Otherwise no particular
• Cheques = endorsement (Jones v Lock).
words needed (Jones v
• Land by conveyance.
Lock).
• Copyright = written transfer.
• May show intention to hold
• Shares = share transfer form and registration
for benefit of third party
(Milroy v Lord – but see also Re Rose).
(Paul v Constance).
CONSTITUTION OF TRUSTS
Enforcement of trusts: Exceptions to the rule
Enforcement of trusts: that equity will not assist
• Gratutious statement of intention a volunteer:
not binding.
• If more formal – then depends on The rule in Strong v Bird:
whether volunteer or non-volunteer. • Incomplete gift made during
• Equity will not assist a volunteer, settlor’s lifetime and donee made
i.e. one not giving valuable executor then gift complete –
consideration. beneficiaries have no claim.
• Includes person covered by Donatio mortis causa (deathbed gift):
marriage settlement (Pullan v Koe). • Must be made in contemplation of
• If beneficiary is party to covenant death (Wilkes v Allington); and
in a deed then common law action • Subject matter passed to donee
for damages possible (Cannon v (Sen v Headley); and
Hartley). • Gift made in circumstances that
• Or Contracts (Rights of Third show it will revert to donor if he
Parties) Act 1999 possible. recovers.
• Generally felt that trustees cannot
enforce covenant on behalf of Proprietary estoppel:
volunteers (Re Kay’s Settlement). • A person led to act in reliance on
• If trustee seeks damages instead promise made by other person
of specific performance then may – then person making promise
succeed (Re Cavendish-Browne). cannot go back on it.
• And also argued that promise may • So sometimes creates a proprietary
create trust (Fletcher v Fletcher). interest in favour of a volunteer
(Crabb v Arun UDC).
30 Constitution of Trusts
4.1 General
1. If the settlor creates a trust by declaring himself as trustee then:
■■ trust is complete and beneficiaries may acquire rights in property;
■■ providing both formalities and certainty is satisfied;
■■ because property will already be vested in the trustees.
2. But if settlor intends to create trust by transferring property to other
trustees then:
■■ the trust is incomplete until he does so;
■■ and the trust is unenforceable by beneficiaries until he does so.
4.2 Formalities
1. Turner LJ in Milroy v Lord (1862): ‘to render a voluntary settlement
effectual the settlor must have done everything which, according to the
nature of the property comprised in the settlement, was necessary in
order to transfer the property and render the settlement binding’.
2. Formalities and transfer must be according to prescribed method.
3. With chattels delivery is sufficient (Thomas v Times Books (1966)).
4. With cheques, endorsement is needed (Jones v Lock (1865)).
5. Deed of gift is the surest way.
6. Land needs conveyance in form of a deed (LPA 1925 and LP(MP)A
1989).
7. Copyright needs transfer in writing.
8. Shares need completion of share transfer forms and registration (Milroy
v Lord (1862)):
■■ though a contradictory position was taken in Re Rose (1952) because
the transferor had done everything in his power to transfer the
shares;
■■ followed in trust context in Hunter v Moss (1999);
■■ and a broader approach may be taken where it is unconscionable
for the donor to deny that a transfer occurred (Pennington v Waine
(2002)).
Enforcement of trusts – volunteers and non-volunteers 31
4.3 Declaration of self as trustee

1. While settlor must transfer property to trustees by appropriate method
– there must also be evident an intention to create a trust.
2. This need only be a clear intention (but for land would require writing).
3. Specific words declaring the trust are unnecessary if intention that one
party holds as trustee for another’s benefit is shown (Jones v Lock).
4. In contrast to above is situation where owner has not transferred
property to third party but has shown that he intends to hold for
benefit of the third party (Paul v Constance (1977)).
5. Where the settlor expressly states an intention to transfer property to
third party trustees but before transfer complete he declares himself
as trustee, the trust is only completed if the property is transferred to
them during his lifetime (Re Railli’s Will Trust (1964)).
6. But if settlor appoints multiple trustees including himself and then fails
to transfer property gift need not fail (Choithram International v Pagarni
(2001)).
4.4 Enforcement of trusts – volunteers and

non-volunteers
1. If a settlor merely makes a gratuitous oral statement of intention to
create a trust then this is not binding.
2. If, however, settlor’s intention is demonstrated by more formal means,
e.g. written covenant to transfer property, then enforceability may
depend on whether intended beneficiary is volunteer or non-volunteer.
3. Equity will generally not assist a volunteer.
4. A volunteer in this context is one not providing valuable consideration.
5. But in equity this can include a person covered by a marriage
settlement (Pullan v Koe (1913)).
6. A marriage settlement includes spouses, children (who are said to be
coated with consideration) and sometimes also, e.g. step children – if
there is a sufficiently close relationship – but it will not cover next of
kin generally (Re Plumptree’s Marriage Settlement (1910)).
32 Constitution of Trusts
7. Since enforcement depends on specific performance of the covenant –

then the property must also be of a type to which specific performance
can apply (Pullan v Koe).
8. But if one of intended beneficiaries is a party to covenant in a deed then
whether that person is a volunteer or not, common law may provide
an action for damages for breach of covenant even though specific
performance is unavailable (Cannon v Hartley (1949)).
9. Now Contracts (Rights of Third Parties) Act 1999 available sometimes.
10. But for enforcement of covenants made before Act another issue is
whether trustees can enforce covenant on behalf of volunteers – courts
have been unwilling to accept this possibility (Re Pryce (1917)).
11. But have suggested that trustees cannot pursue such a course of action
(Re Kay’s Settlement (1939)).
12. And trustees ‘could not and should not seek to enforce covenants on
behalf of volunteers’ (Re Cooke’s Settlement Trusts (1964)).
13. But if a trustee seeks damages instead of enforcement then they may
succeed (Re Cavendish-Browne’s Settlement Trusts (1916)).
14. A final way of trustee assisting volunteer in unique circumstances is to
argue that, once a promise has been made to settle property that this
itself is subject of an enforceable trust (Fletcher v Fletcher (1844)).
4.5 Exceptions to the rule that equity will

not assist a volunteer
1. The rule in Strong v Bird (1874):
■■ if incomplete gift made during donor’s lifetime and donee then
made executor to donor’s will, gift is completed and beneficiaries
have no claim on property;
■■ but vagueness of intention defeats the rule (Re Gonin (1979)).
2. Donatio mortis causa (gift made in contemplation of death):
■■ In Cain v Moon (1896) Lord Russell CJ set basic requirements:
(i) the gift must have been made in contemplation of death
(Wilkes v Allington (1931));
(ii) subject matter must have been passed to donee e.g. freehold
land (Sen v Headley (1991)); chattels – delivery (Woodward v
Exceptions to the rule that equity will not assist a volunteer 33
Woodward (1992)); choses in action – necessary documents (Birch

v Treasury Solicitor (1951));
(iii) the gift must be made in such circumstances that show that the
property will revert to the donor should he recover.
3. Proprietary estoppel:
■■ if one person has been led to act on statement of another, he may in
some circumstances prevent other from going back on promise;
■■ but sometimes doctrine has effect of creating a proprietary interest
in favour of a volunteer – see Dillwyn v Llewellyn (1862) and Crabb v
Arun UDC (1976).
5
Secret Trusts
General:
• Idea is to create trust without revealing Fully secret trusts:
identity of beneficiaries – because of • Ostensible beneficiary must be
moral obligations. told of trust and agree to be
• Courts accept them if: (i) intention bound before testator’s death –
to create trust and three certainties or ostensible beneficiary takes
satisfied; (ii) trust communicated absolutely (Wallgrave v Tebbs).
to legatee; (iii) trust accepted by legatee. • Acquiescence is sufficient for
• Fully secret = apparent gift to ostensible acceptance (Moss v Cooper).
beneficiary. • They cannot be changed so are
• Half secret apparent on face of will. clearly inconsistent with the Wills
Act (Ottway v Norman).
• Reason they are enforced is to
prevent fraud on the beneficiary.
SECRET TRUSTS
Theoretical basis of secret trusts: Half secret trusts:

• Traditionally not enforced
• Both secret and half secret fail to comply with
– because fraud on
Wills Act requirements.
beneficiary not possible.
• So testator is ‘opting out’.
• But were accepted in
• Fraud argument cannot apply to half secret.
Blackwell v Blackwell.
• So ‘independent trust’ theory has been
• But to be valid must be
applied to both (Re Snowdon).
communicated before
• But has caused anomalies (Re Gardner and
making of will – not before
Ottoway v Norman).
death of testator as in fully
• And uncertain whether they are express or
secret (Re Keen).
constructive.
36 Secret Trusts
5.1 The background to secret trusts
1. A will is a public document – so can be read by anyone.

2. This can cause problems for testators who wish to keep the identity of
certain beneficiaries secret, e.g. because of moral obligations to them.
3. One traditional answer was to make an absolute gift to an ‘ostensible
beneficiary’ who was instructed as to the real purpose of the gift
(the fully secret trust) – and equity would prevent the ostensible
beneficiary’s unjust enrichment and enforce the trust.
4. A further way is to identify that person as a trustee in the will but still
not reveal the identity of the secret beneficiary, i.e. ‘to X for purposes
which I have made known to him’ (the half secret trust) – the gift
being immediately enforceable after the testator’s death as there is no
question of the trustee taking it.
5. Secret trusts are potentially problematic because their exact nature
is unclear and because they do not meet the requirements of certain
formalities – s9 Will Act 1837.
6. But courts do still approve of secret trusts if there is ‘(i) an intention by
the testator to create a trust, satisfying the traditional requirements of
the three certainties; (ii) communication of the trust to the legatees; (iii)
acceptance of the trust by the legatees … which … can take the form of
silent acquiescence …’ (Nourse LJ in Margulies v Margulies (2000)).
5.2 The rules governing fully secret trusts

1. The ostensible beneficiary must be informed of the trust and agree
to be bound by it before the testator’s death – so the trust must be
communicated or the ostensible beneficiary will take absolutely
(Wallgrave v Tebbs (1855)).
2. The ostensible beneficiary must be told of the terms of the trust as well
as of the existence of the trust (Re Boyes (1884)).
3. The trust can be communicated orally or in writing, and could be in
sealed instructions to be opened after death (Re Keen (1937)).
4. Acceptance of the trust does not have to be formal – silence or
acquiescence is sufficient (Moss v Cooper (1861)).
The rules governing half secret trusts 37
5. The ostensible beneficiary must be informed of changes or additions

to the trust or (s)he will take them absolutely. Communication
and acceptance reached in an earlier will is not to be taken as
communication and acceptance for a secret trust in a later will (Re Colin
Cooper (1939)).
6. It has also proved possible for a testator to use a secret trust to create an
obligation on the ostensible beneficiary to make provision on the death
of the secret trustee for the secret beneficiary (Re Gardner (No 1) (1920)).
7. Creating clear inconsistencies with normal rules on wills, i.e. a secret
trust cannot be altered where a will can (Ottaway v Norman (1972)).
8. The original justification for secret trusts was preventing any fraud by
the ostensible beneficiary – in which case the standard of proof should
be high as for fraud (Ottaway v Norman) – but Megarry V-C suggested
that either oral or written proof is sufficient and that the standard of
proof is only the normal civil measure (Re Snowden (1979)).
5.3 The rules governing half secret trusts

1. Courts traditionally had greater difficulty in accepting half secret trusts.
2. The rationale for fully secret trusts – prevention of fraud by the
ostensible beneficiary – clearly cannot apply since a trust is created
on the face of the will and there would never be any question of the
trustee taking the property absolutely.
3. Traditionally, then, it was argued that there was no reason not to
demand compliance with the requirements of the Wills Act 1837 – so
half secret trusts were commonly not enforced and returned instead on
resulting trust to the testators’ estate.
4. But half secret trusts were eventually accepted as valid in Blackwell v
Blackwell (1929) where Lord Sumner stated that ‘it is communication of
the purpose to the legatee coupled with acquiescence or promise on his
part that removes the matter from the provisions of the Wills Act and
brings it within the law of trusts’.
5. However, as Lord Sumner also identified obiter: ‘… a testator cannot
reserve to himself a power to make future unwitnessed dispositions
by merely naming a trust and leaving the purposes of the trust to be
supplied afterwards’.
38 Secret Trusts
6. So there is clear inconsistency in the relative positions on

communication in fully secret trusts and half secret trusts – the former
communication need only be before the testator’s death – but with the
latter it must be at or before the making of the will (Re Keen (1937)).
5.4 The theoretical basis of secret trusts

1. While there are good reasons why testators use secret trusts and why
courts will enforce them they are still problematic.
2. Both fully secret and half secret trusts fail to comply with necessary
formalities in the Wills Act.
3. The traditional justification for allowing secret trusts to disregard
statutory requirements is the equitable maxim – equity will not allow
statute to be used as an engine of fraud.
4. This fraud theory obviously applies in the case of fully secret trusts
but cannot apply to half secret trusts where a trust is apparent on the
face of the will and there is no possibility of the trustee keeping the
property.
5. Also the view of Lord Sumner in Blackwell v Blackwell that secret
trusts are based on ‘intention, communication, and acquiescence’
is insufficient justification on its own because this has the effect of
allowing a testator to ‘contract out’ of the provisions of the Wills Act –
to choose to avoid statutory provision.
6. The more modern view is that both fully secret and half secret trusts
operate outside of the will so have no need to comply with the
provisions of the Wills Act – as Megarry V-C points out in Re Snowden:
‘The whole basis of secret trusts … is that they operate outside of the
will, changing nothing that is written in it, and allowing it to operate
according to its tenor, but then fastening a trust onto the property in the
hands of the recipient’.
7. So a major justification for the ‘independent trust theory’ is still based
on the personal obligation accepted by the ostensible beneficiary (Re
Young (1951)).
8. But the principle has led to some dramatic and controversial results (Re
Gardner (1923)).
9. One final point is whether the secret trust operates as a constructive
trust or as an express trust:
The theoretical basis of secret trusts 39
■■ in the case of half secret trusts, they can only ever be express as the
trust is apparent on the face of the will;
■■ in the case of fully secret trusts, either could apply;
■■ if they are a means of avoiding formal requirements of the Wills
Act to prevent fraud by the ostensible beneficiary, then they would
operate as constructive trusts;
■■ if they operate independently of the will, then they must be
regarded as express trusts;
■■ the significance is in whether or not s53(1)(b) must be complied with
in the case of a trust of land – it need not be in a constructive trust –
but in Ottaway v Norman an oral fully secret trust of land was upheld
without the issue being discussed.
Fully secret trusts Half secret trusts

Are created to benefit a ‘secret’ Are created to benefit a ‘secret’
beneficiary. beneficiary.
Are not apparent on the face of Are apparent on the face of the will.
the will.
Do not fulfil certain requirements of the Do not fulfil certain requirements of the
Wills Act. Wills Act.
Secret trustee (ostensible beneficiary) Secret trustee is identified on face of

must be informed before testator’s will – and must be informed before will
death of existence and terms of trust – is made – and accept or acquiesce.
and must accept.
If trust fails then ostensible beneficiary If trust fails then gift returns to
takes gift absolutely. testator’s estate as a resulting trust.
Justified originally on basis that they There never could be a fraud on the
avoid fraud on the secret beneficiary. secret beneficiary – because the trust is
apparent on the face of the will.
Are based on intention, communication Are based on intention, communication

– and operate outside the Wills Act. – and operate outside the Wills Act.
Could exist as either an express trust or Can only ever operate as an express
as a constructive trust. trust – because trust apparent on face
of will.
Diagram illustrating the similarities and differences between fully secret trusts and
half secret trusts
6
Protective and Discretionary
Trusts
6.1 Protective trusts

1. This is a simple device that ensures that a beneficiary who is likely to
dissipate the fund through inexperience, immaturity or irresponsibility
is prevented from doing so (Re T’s Settlement Trusts (1964)).
2. It will arise where the settlor/testator knows that the trust property
could be sold or mortgaged resulting in the effective waste of the assets
with possible detriment to the beneficiary’s spouse and children.
3. Such a trust could be drafted individually or incorporating the provi-
sions of s33 TA 1925.
4. The beneficiary in effect receives a life interest in the property determi-
nable in the event of, e.g. bankruptcy of the beneficiary or attempts to
dispose of the assets of the trust by the beneficiary.
5. In that case a discretionary trust will usually arise.
6. Trustees can then use the property to benefit the beneficiary and his/
her dependants by whatever method they select.
7. While this type of trust is useful in guarding against irresponsible use
of the trust property, it can also be seen as unfair to creditors.
6.2 Discretionary trusts

6.2.1 The purpose of discretionary trusts
1. By definition, a discretionary trust is one where the trustee has a power
to select from a number of potential beneficiaries to whom (s)he will
distribute the assets under the trust.
42 Protective and Discretionary Trusts
2. The mechanism has the advantage that beneficiaries have no rights in

the interest until selected – and formerly there were also specific tax
saving advantages but these have now gone.
3. Discretionary trust then may be used:
■■ in conjunction with protective trusts to protect the fund from
beneficiaries who are irresponsible or spendthrift;
■■ to protect a beneficiary against a creditor in bankruptcy;
■■ to allow flexibility to take account of changing circumstances of
beneficiaries.
6.2.2 How discretionary trusts operate

1. Property is normally conveyed to the trustees to be held on trust
to apply either the income or the capital or both for the benefit of
members of a class of beneficiaries in such proportions as the trustees
in their absolute discretion think fit.
2. The trust lasts for any designated period that is not in excess of the
perpetuity period, i.e. since the Perpetuities and Accumulations
Act 1964 for a maximum of 80 years, but see Perpetuities and
Accumulations Act 2009 for wills and trusts taking effect after April
2010.
3. There may well be a power to accumulate – although this is subject to
various statutory restrictions.
4. Distinction is made between ‘exhaustive’ discretionary trusts
(where trustees are required to distribute the whole income) and
‘non-exhaustive’ discretionary trusts (where in relation to income the
income does not have to be distributed each year, or to capital where
the whole capital would not have to be distributed during the currency
of the discretionary trust) (Re Locker’s Settlement (1977)).
5. Powers may be given to add to or to exclude beneficiaries and for a
resettlement on new trusts.
6.2.3 The interests of the beneficiaries

1. Unlike in fixed trusts, beneficiaries under a discretionary trust have no
proprietary interest in the trust – but depend on selection by trustees.
2. If the trust is exhaustive then the class of beneficiaries as a whole if
adult and not suffering any disability may terminate the trust and
enforce distribution (Re Smith (1928)).
Discretionary trusts 43
3. Otherwise the duty of the trustee is only to exercise the discretion.

4. In the case of a non-exhaustive discretionary trust this duty may be
satisfied merely by exercising a power to accumulate.
7
Resulting Trusts and
Constructive Trusts
Constructive trusts: Resulting trusts:

Arise by operation of law – and some Based on return of trust fund to settlor’s
overlap with resulting – and basic duty estate:
is to return fund to rightful owner – but • can be automatic (where settlor fails to
uncertain whether a trust or a remedy. dispose of entire beneficial interest)
• or presumed (from presumed intent of
Can occur in the case of: settlor).
• secret profit made by a fiduciary Failure of express trust e.g.:
(Boardman v Phipps) • charitable purpose not properly
• mutual wills – agreement between two identified (Re Diplock)
parties on identity of beneficiary when • failure to meet contingency in a
both die – avoids fraud on first to die contingent interest (Essery v Cowlard).
(Re Dale) Failure to dispose of entire beneficial
• vendor of land once contract is interest:
concluded (Lysaght v Edwards) • settlor must keep what he has not
• property acquired by killing (Re Crippen) disposed of (Re Vandervell)
– subject to other rules in Forfeiture Act • can involve surpluses (Re Gillingham
• fully secret trusts – but not half secret Bus Disaster Fund)
(which are on face of will) – but see • or dissolution of unincorporated
Ottaway v Norman associations.
• strangers who dishonestly assist in a Presumption in voluntary conveyance:
breach of trust (Royal Brunei Airlines • does not apply to personality (Re
v Tan) Vinagradoff)
• strangers who knowingly receive trust • can be rebutted by presumption of
property when it is unconscionable advancement (Re Ekyn’s)
to do so (Commerce International • or either by evidence to contrary
(Overseas) Ltd v Akindele) (Shepard v Cartwright).
• agents and partners where they act Purchase in name of others:
dishonestly (Re Bell’s Indenture) • unless indication that actual purchaser
• ‘new model’ trusts where it is just and does not intend to keep beneficial
equitable (Hussey v Palmer). interest, then presumption of resulting
trust in his favour (Fowkes v Pascoe)
• if many contributions then based on
RESULTING AND actual contribution (Bull v Bull).
CONSTRUCTIVE TRUSTS
Trusts of the family home:
• used as ways of dealing with implied co-ownership
• judges have confused implied, resulting, and constructive trusts – now re-classified
in Drake v Whipp
• resulting based on implied co-owner’s contribution (Bull v Bull)
• constructive based on evidence of legal owner’s intention to share and actual
detriment suffered by implied co-owner (Eves v Eves)
• but constructive cannot be based on work alone (Lloyds Bank v Rosset)
• in many cases in 1970s CA used ‘new model’ constructive trust based on what was
just and equitable (Gissing v Gissing); but HL took different view.
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with the Tunganis against the Chinese authorities. This rebellion was
successful, and Ili was seized in January 1866, when a Tungani-
Tarantchi Government was formed, which remained in power until
the occupation of the province by Russia in 1871.
We now turn to Yakub Beg’s campaigns to the east of Kashgar. The
Tunganis and Khojas of Aksu were not supported to any material
extent from Ili, and he therefore had mainly to deal with an already
defeated force when he commenced operations in 1867. Aksu,
although naturally a strong position, offered but slight resistance,
and the Atalik marched on to Kucha, which he also captured. After
receiving the submission of Karashahr, Turfan, Hami, and Urumchi he
returned in triumph to Kashgar. He subsequently annexed the upland
district of Sarikol, carrying off its inhabitants and filling their place
with Yarkandis and Kirghiz.
It is probable that Yakub Beg was induced to resume operations
against the Tunganis as much by the difficulty of feeding and paying
his army as by ambition. In the autumn of 1869 he passed farther
east to Korla, which fell, and the series of campaigns was continued,
generally with success, until 1873, the Kashgar troops penetrating as
far east as Chightam, a small town to the east of Turfan. Little
regard was paid to the wretched inhabitants, who were plundered
without mercy and sometimes massacred, in accordance with the
usual practice in Central Asia. The Atalik thus achieved military
success, but he failed to organize his conquests against the day
when the slow-moving Chinese Government should attempt to
regain its lost provinces. On the other hand, he probably could not
control his troops, who would have deserted had looting been
forbidden. In any case his constant military successes produced a
great impression in the neighbouring states and spread his fame far
and wide.
Yakub Beg’s power was based on a mercenary force which was
remarkable for its heterogeneous composition. Just as his palace,
which was built and organized on the lines of barracks, was full of
cannon of every description, ranging from ancient Chinese pieces to
modern artillery, so his army included men from every neighbouring
province. The most trustworthy and efficient soldiers were
Khokandis, who, being strangers in the land, would naturally be loyal
to their chief and fellow-countryman, whereas the local peasantry
made indifferent fighters. An element numerically important, but for
the most part of untrustworthy quality, was the Tunganis, who
served mainly from fear. There were also a number of Indian and
Afghan adventurers, some of the former being deserters from the
Indian army. The Chinese troops were never used for distant
campaigns.
The men above mentioned, who constituted the regular troops, were
divided into mounted infantry, artillery and infantry, the force being
increased by levies of Kirghiz, Dulanis and other irregulars of
doubtful military value. It is now believed that Yakub Beg had never
more than 20,000 trustworthy men in his service, although
exaggerated accounts of his strength were generally credited. His
troops, owing to his somewhat remarkable personality and many
victories, were of better fighting value than those of Khokand and
Bokhara; but, as the event proved, they were unable to cope with
Chinese troops trained on European lines, nor would they have
withstood equal numbers of Russian troops.
His government was based on the Moslem law, and was very
onerous. It must be recollected that he maintained a court and a
large army, mainly at the expense of perhaps a million poverty-
stricken peasants, who, in addition to paying the heavy taxes of
nominally one-tenth of all produce, were ground down by the unjust
tax-collectors until their condition was pitiable. Moreover, he kept a
huge body of town police and also a large force of secret police,
whose united activities must have added considerably to the general
misery. The fact that he was a strong ruler implied the imposition of
heavier burdens on his unhappy subjects. Moreover, during the
period of his rule, trade with China entirely ceased, to the great loss
of the merchants, who had but little commercial intercourse with
Russia or India.
The relations of Yakub Beg with Russia were of primary importance
to him until the Celestial army re-entered Chinese Turkestan, and it
is consequently desirable to summarize them briefly. The Atalik’s
defence of Ak Masjid and his action before Tashkent have already
been mentioned and were not forgotten by the Russians, who in
1866 dismembered Khokand and defeated Bokhara. The
establishment of his power at Kashgar caused the Russians much
anxiety, and their frontier officials were at first instructed not to
recognize Yakub Beg, but, at the same time, to be conciliatory, in the
illusive hope that this line of action would induce the Atalik to make
overtures.
In pursuance of this fatuous policy the Russians requested sanction
to bridge the river Narin and to construct a road to Kashgar; but,
needless to say, these concessions were categorically refused. By
way of marking their displeasure the Muscovites began to construct
a strong fort at Narin; but their hands were tied by attempts on the
part of the Central Asian Khanates to throw off their hated
domination. Yakub Beg, openly at any rate, preserved neutrality, and
for five years the struggle continued, with the result that the Russian
yoke was riveted more firmly than before on Khokand and Bokhara.
To these preoccupations the Atalik probably owed his safety for the
time being, as the construction of Fort Narin was avowedly intended
as a preliminary to an attack on Kashgar, and it appears that an
expedition destined for that task in 1870 was at the last hour
diverted against Khokand, which unexpectedly revolted.
Later on the Russian authorities exchanged their somewhat
menacing policy for one of peaceful penetration and attempted to
gain an entry into Chinese Turkestan through their merchants. They
also sent a young officer to discuss various questions with Yakub
Beg, who in turn despatched one of his nephews to Russia. As,
however, his envoy was accorded no official recognition, little
progress was made in developing relations, and the Atalik
maintained towards his formidable rival an uncompromising attitude,
which convinced the Russians that his power was much greater than
was actually the case.
Accordingly, in 1872, although military preparations were continued,
an accredited envoy, Baron Kaulbars, was entrusted with the difficult
task of opening up official relations with the Atalik. He was received
by the gratified ruler with the extravagant expression of Oriental
hyperbole: “Sit on my knees, on my bosom, or where you like, for
you are guests sent to me from heaven.” For the first time complete
freedom was accorded to the envoy, and two Russian merchants
who accompanied the mission were granted every facility for visiting
Yarkand and Khotan. Baron Kaulbars was so fully impressed with a
sense of the power of his host that he regarded him as a potentate
ranking with the Amir of Afghanistan; and, owing to these
impressions, a treaty of commerce, satisfactory to both parties, was
drawn up, Russian goods being subjected to a maximum charge of
2½ per cent ad valorem. The envoy, who had learnt a good deal
about the country and had certainly scored a great personal success,
returned to Tashkent with glowing accounts of the Atalik and his
dominions.
Another nephew of Yakub Beg’s, Haji Tora by name, who had
travelled widely, was next despatched to Russia, where he was
received with much honour and entertained by the Tsar. From the
court of the Northern Power he went on to visit Constantinople,
where he conducted negotiations by which Yakub Beg, in return for
an acknowledgment of his independence, accepted the suzerainty of
the Sultan and issued coins bearing his effigy. Furthermore, as a
mark of high favour, the Atalik was gazetted an Amir, with the title of
Amin-ul-Muminin or “The Trusted One of the Believers.”
The Russian authorities in Central Asia naturally took umbrage at an
alliance which united a leading Moslem power with their hereditary
foe. Moreover, relations with Yakub Beg were not developing
smoothly; for, realizing that his state would be overrun by Russian
merchants, the Amir decided to go back on the spirit of the treaty of
commerce and to discourage all Russian intruders. In the case of the
first important caravan to reach Kashgar, he kept the owners under
surveillance although he purchased their goods at a fair rate through
one of his agents. But, as the payment was made in debased
coinage the merchant stood to lose, and finally did lose, in spite of
strenuous official Russian support. A year later Yakub again changed
his mind and invited another Russian merchant to visit Kashgar. He
received better treatment, with the result that trade gradually
increased. The chief aim of Russia was to be permitted to appoint an
Agent at Kashgar, whereas Yakub Beg would only allow a
Caravanbashi or Superintendent of caravans (a man of little standing
or education) to reside at the capital. In 1874 a Russian official was
sent to arrange this question, but Yakub Beg, relying on the support
of Great Britain, was entirely unyielding on the subject; indeed, his
attitude towards Russia became almost menacing. So much was this
the case that in the autumn of the same year the Russian authorities
decided to break his power. They had massed twenty thousand
troops on the frontiers, when a revolt in Khokand forced General
Kaufmann to divert his forces. Had Yakub Beg been a great man he
would have seized the opportunity to aid Khokand, and would
thereby, in all probability, have given a serious set-back to the Power
which had resolved on his destruction. His inaction on this occasion
stamps him as an Oriental adventurer who kept the kingdom he had
won rather by good fortune than by signal capacity.
The relations of Yakub Beg with the Indian Empire were of little
permanent importance from the political point of view, but are of
considerable interest to the geographer and to the student of politics
and commerce. In the middle of the nineteenth century the British
representative in Ladak heard vague accounts of affairs in Chinese
Tartary, as it was then termed, from merchants, but gained little or
no accurate information, although the veil was lifted somewhat in
1857 by Adolph Schlagintweit, the first European to travel from India
to Yarkand and Kashgar. Unfortunately for him, Wali Khan was
besieging the Chinese cantonment of Kashgar at that time, and by
his orders the German explorer was murdered. Eight years later, in
1865, Johnson,[14] an English surveyor, crossed the Kuen Lun to
Khotan, where he was received with much hospitality by its chief;
but to Robert Shaw belongs the credit of being the first Englishman
to explore this unknown land and open up relations with its ruler and
people.
While he was living at Ladak an agent of Yakub Beg passed through,
bound for the Punjab, under orders from his master to report on the
neighbouring land. Shaw mentioned to this agent his intense desire
to visit Yarkand and Kashgar for the purpose of paying his respects
to its celebrated ruler. This proposal was almost immediately agreed
to, and late in 1868 Shaw crossed the Kara Koram and reached
Yarkand safely. His courage and resolution were evidently combined
with considerable tact, as throughout his journey he created an
excellent impression both on Yakub Beg and on his officials. The
inopportune arrival of another Englishman, Hayward, who was an
explorer and also a trader, aroused suspicions in the mind of the
Oriental, and both men were treated for a while as honoured state
prisoners; but in the end they were sent back to Ladak, thoroughly
pleased with their reception.
Shaw’s reports excited intense interest, and created exaggerated
ideas both as to the power of Yakub Beg and as to the richness of
the prospective market. He had suggested to the Atalik the
appointment of an agent for Chinese Turkestan at Lahore. This
suggestion was accepted, and the agent was the bearer of a cordial
invitation to the Government of India to despatch an official for the
purpose of establishing friendly relations and opening up trade.
Forsyth, a capable Indian civilian, was appointed to carry out this
mission, and, accompanied by Shaw, he reached Yarkand in 1870;
but unfortunately the Atalik had just started off to his distant eastern
frontier, and Forsyth returned to India without accomplishing his
object.
Yakub Beg was as much disappointed as the British envoy at this
fiasco, and through the insistence of his agent Forsyth was again
appointed in 1873 to head a mission, which was of greater size than
its predecessor. Under him were Lieut.-Colonel Gordon, Captain
Chapman and Captain Trotter, who have all had distinguished
careers. The caravan, consisting of 400 animals, required elaborate
supply preparations, and great difficulty was experienced in crossing
one of the passes, the last hundred feet of which was a wall of ice.
But in due course Kargalik was reached, and thenceforward the
mission was treated with friendliness and sumptuous hospitality. In
December 1873 the party reached Kashgar, and Forsyth describes
his reception as follows:
“According to etiquette we dismounted at about forty paces from the
gateway, and walked slowly along with the Head Chamberlain going
ahead. In the outer gateway soldiers were seated on a daïs with
their firearms laid on the ground before them, their arms folded and
their eyes on the ground. We then passed through a second
gateway filled with soldiers, and crossed another court, on all sides
of which soldiers in gay costumes were ranged seated. From this
court we passed into the penetralia, a small court in which not a soul
was visible, and everywhere a deathlike silence prevailed. At the
further end of this court was a long hall, with several window-doors.
The Chamberlain then led us in single file, with measured tread, to
some steps at the side of the hall, and entering almost on tiptoe
looked in, and returning, beckoned with his hand to me to advance
alone. As I approached the door he made a sign for me to enter, and
immediately withdrew. I found myself standing at the threshold of a
very common-looking room; looking about I saw enter at a doorway
on the opposite side a tall stout man, plainly dressed. He beckoned
with his hand, and I advanced, thinking it must be a chamberlain
who was to conduct me to ‘The Presence.’ Instinctively, however, I
made a bow as I advanced, and soon found myself taken by both
hands and saluted with the usual form of politeness, and I knew that
I was standing before the far-famed ruler of Eastern Turkestan.”
This interesting description shows that Forsyth took Yakub Beg very
much at his own valuation, and the fact that the British envoy
agreed to dismount at a distance from the gateway must, at any
rate, have raised the Atalik in the eyes of his subjects.
At the formal interview a few days later the gifts, consisting mainly
of munitions, were presented, but Yakub Beg was chiefly pleased
with the autograph letter from Her Majesty, which was enclosed in a
magnificent casket. After exclaiming “Praise to Allah!” several times
he proceeded to declare his friendship for the British, referring to the
Queen as the sun “in whose genial rays such poor people as I
flourish.”
The mission remained four months at Kashgar, its labours
culminating in a treaty of commerce which was concluded in
February 1874. By its terms a 2½ per cent ad valorem tax was to be
levied on goods imported from India, British trade thus being placed
on the same favourable footing as Russian.[15]
In addition to important surveys made along the main road, Gordon
led a party to the Pamirs, which were explored to some extent.
Indeed the Forsyth mission was a distinct success, if only because
these surveys proved beyond doubt that India could not be seriously
invaded from the Pamirs or from Chinese Turkestan. Moreover, it
enlarged the horizon of the authorities in India, and by the
establishment of friendly relations with Chinese Turkestan
inaugurated a small but profitable trade.
Yakub Beg, however, regarded the mission far otherwise, as to him it
signified an alliance, granting British protection against Russian
hostility, and, had he retained his power, constant appeals for aid
would have been received at Calcutta. As matters turned out, both
Yakub Beg and his family were destined to disappear from the stage
of Central Asia, and that speedily.
While the Atalik was entertaining the Forsyth mission the Chinese
Government, having restored order at home, was preparing a
formidable force for the reconquest of its lost possessions beyond
the Gobi. The task was very difficult, owing to the width of the
desert, estimated at about 1200 miles, but the Chinese army was
well disciplined, well equipped, and well led, the difficulty as to
supplies being successfully overcome in a very simple manner. The
advanced guard sowed crops in one of the rare oases, and an
abundant harvest was thus provided in the following autumn.
As soon as this was gathered in, an army 50,000 strong advanced
without encountering any serious opposition, until in the spring of
1876 it reached the neighbourhood of Urumchi. The capture of this
town in August, followed by that of Manas, fully re-established
Chinese authority to the north of the Tian Shan.
The Celestials were now free to deal with Yakub Beg, whose position
had become unenviable. His refusal to aid Khokand in her last
desperate struggle with Russia must have lowered his prestige, while
his hostility to that power must have weakened his position; it was
clear, too, that Great Britain had no intention of supporting him with
troops or money. Apart from this, his heterogeneous force was no
match for the veteran Chinese army, to which, moreover, it was far
inferior in numbers and equipment.
In the spring of 1877 the Chinese main force marched on Turfan,
crossing the Tian Shan by the Devanchi Pass; while a second force,
10,000 strong, moved west from Hami in co-operation. Yakub Beg
had placed his main body for the defence of the Devanchi Pass, but
while it was holding this position news was received of the capture
of Turfan by the Hami column. A panic ensued, and, although the
Atalik fought a rearguard action to the west of Turfan, he was
obliged to retreat to Karashahr, and later to Korla. Before this defeat
Yakub Beg had sought aid from Russia, but in vain, partly because
Kuropatkin (then a captain) had visited his camp and reported most
unfavourably on his position.
For some unexplained reason, probably from lack of supplies, the
Chinese army remained immobile for several months, while events
were moving fast in the enemy camp, where the star of Yakub Beg
was setting in gloom. After losing the eastern part of his territory the
Atalik became morose and a danger to his courtiers. According to
trustworthy information gained by me in Kashgar, the actual cause
that led up to his death was a savage flogging, inflicted without any
adequate reason, on one of his officials. This alarmed Niaz Hakim
Beg, one of his principal followers, who poisoned him.
Thus died Yakub Beg, who for a period of twelve years had played a
leading rôle on the stage of Central Asia. He was fortunate, as one
of his titles of Bedolat signified, inasmuch as he quitted Khokand just
before its fall and successfully founded a state only a few marches
off. He was fortunate in his dealings with Russia, which would have
crushed him, but for more serious tasks which stayed her hand, and
finally he was fortunate in being killed just as his kingdom was
falling from his grasp. Among the chiefs of Central Asia he was a
man of capacity, and he was undoubtedly brave and resolute; but his
outlook was narrow, as was inevitable from his environment. He
remained alert and virile to the end, and was not addicted to the
vice or self-indulgence that ruins many members of the upper
classes in Central Asia. Although the stage he trod was
circumscribed, Yakub Beg is the only Moslem of the nineteenth
century in Central Asia whose name will live.
The death of the Atalik was followed by a period of confusion. One
of his sons escorted his father’s corpse to Kashgar. There he was
murdered by his elder brother Beg Kuli Beg, who succeeded to the
throne, but not unchallenged, as a certain Hakim Khan Torah was
able to seize Karashahr and Korla, and there were also outbreaks at
Khotan. The new ruler in the end overcame his rivals, but in the
effort exhausted his resources to a dangerous extent and made the
way still easier for the Chinese.
The final operations for the recovery of Kashgar and Yarkand were
conducted on somewhat the same lines as the first. The main force
assembled to the north of the Tian Shan and, using a little-known
pass, descended in overwhelming strength on Aksu, while a second
column drove the Moslems before it to Karashahr and on to Kucha,
where a hard-fought battle was won by the Chinese; and in
December 1877 the campaign was brought to a successful
conclusion by the capture of Kashgar.
The Celestials showed moderation in the hour of victory. They
deprived the population of their horses, to prevent a fresh rising, but
they appointed Moslem headmen and also recognized the religious
law of Islam. Their strong position was acknowledged by Russia in
1881, when, by the Treaty of St. Petersburg, that Power restored
Kulja to the Chinese, receiving in return the post of Irkeshtam, two
stages on the eastern side of the Tian Shan. By the same treaty
freedom of trade was secured, and this agreement is still in force.
In the last two decades of the nineteenth century great forward
strides were made in the direction of Chinese Turkestan both by
Great Britain and by Russia. The former Power, thanks to the energy
and activity of Younghusband (a nephew of Robert Shaw) and other
travellers, realized the importance of exploring the passes through
which India could be threatened, if not invaded, from Russian
Turkestan. A second aim was the control of the No Man’s Land which
lay between the fertile valley of Kashmir and the plain of Chinese
Turkestan. To this end British Political officers were stationed at Gilgit
and Chitral, supported by the Imperial Service troops of the
Maharaja of Kashmir.
During this period Russia also displayed considerable activity in the
exploration and occupation of the No Man’s Land bordering on
Russian Turkestan. One of her most active agents, Captain
Grombchevsky, visited the hill state of Hunza in 1888, meeting
Younghusband in the following year on the upper reaches of the
Yarkand River. In 1891 Younghusband travelled in Wakhan, and at
the stage of Bozai Gumbaz met Colonel Yonoff, who had issued a
proclamation that the Pamirs (with the sole exception of the
Taghdumbash Pamir) were Russian territory. That officer
subsequently received instructions to escort Younghusband back to
Chinese territory. He showed good feeling about his disagreeable
task, and as Younghusband agreed, under protest, to proceed to
Chinese Turkestan, he waived the instructions relating to escort.
Upon this incident being reported, the Russian Government
apologized for Yonoff’s act, and the two Powers finally decided to
despatch a commission to settle their respective claims in a country
visited hitherto merely by a few travellers. In 1895 the commission
met, and by its findings the narrow strip of Wakhan was awarded to
the Amir of Afghanistan, with the result that the boundary of the
British Empire was drawn in this section some thirty miles to the
north of the crest line of the Hindu Kush.
The great revolution which had broken out in China in 1911 began
to make itself felt in its remote western provinces in the following
spring. The first outbreak occurred in the district of Ili, where a
young officer entered into a conspiracy against the Tartar general,
with whom he had a private quarrel. The conspiracy was entirely
successful, and resulted not only in the murder of the general, but in
the capture of the machinery of government. As the revolution
progressed in China, the republic was proclaimed in Ili, and after the
defeat of a force despatched from Urumchi the Ili rebels became
undisputed rulers of the surrounding country.
The unrest soon affected Urumchi itself, where Chinese rowdies,
members of a secret society which existed for the sake of loot and
blackmail, began to demonstrate in favour of the republican cause
and to show their sympathy by acts of robbery and incendiarism.
The governor, however, was no weakling, and realizing that the
loyalty of the regular troops was very doubtful, he enlisted Tunganis
in considerable numbers, through whose instrumentality he was able
to control the situation for a time. Subsequently he dealt so
mercilessly with every one suspected of being a member of the
secret society, slowly slicing to death innocent and guilty alike, that
the Chinese population rose and drove him out of Urumchi.
In April of this year the outward calm hitherto maintained in Kashgar
was rudely disturbed by the murder of the Taotai and the Prefect of
Aksu. Upon the arrival of the telegram announcing this deed, the
Kashgar Taotai immediately cut off his queue and issued a
proclamation advising the Chinese to follow his example. Moreover,
he had a scroll prepared with the inscription, “Long live the Chinese
Republic!” which he hung up in his yamen. After some hesitation the
leading Chinese officials followed the example of the governor, the
commander-in-chief of the province not only cutting off his queue
and flying the flag of the Republic, but donning a nondescript
European cap. The united officials then solemnly changed their
chronological system from the fourth year of Hsuang-tang, the boy-
emperor, to the first year of the Chinese Republic, an act which
possessed tremendous significance in their eyes. The soldiers were
by no means ready to follow the lead of their superior officers, but
maintained a sullen and resentful attitude, which boded ill for the
safety of the higher officials, military and civil alike.
Meanwhile Yuan-Shih-Kai had been informed by telegram of the
adherence of the New Dominion to the Republic and had appointed
the governor of Kashgar to Urumchi, hoping by this means to end
the state of hostility which still existed between Ili and Urumchi. The
governor of Kashgar at first refused the appointment, pleading his
age and weak health, but in the end accepted it. The actual position,
therefore, was that the Republic had been acknowledged throughout
the province, and that the Chinese officials were all obeying the
instructions of Yuan-Shih-Kai. It might have been supposed that the
crisis had passed without bloodshed, but this was not so. At night a
band of fifty Chinese, members of a secret society, forced their way
into the yamens of the governor and of the city magistrate. The
governor, who was awake, was greeted with the ironical
exclamation,“Greetings to Your Excellency,” and both he and his wife
were cut to pieces. The magistrate was also killed and the republican
flags in the two yamens were cut down and destroyed.
In the morning the gamblers, as they were termed, were harangued
by the commander of the garrison at the head of a few soldiers.
They insisted on being armed and formed into a new regiment under
the command of a ruffian, a pork-butcher by trade; and when this
was done they appointed new officials to succeed the murdered
men. The soldiers in the New City killed two of their officers and a
panic ensued in Kashgar, but the disturbances and looting were
confined to the New City. The administration was now controlled by
the gang of gamblers, who appointed all officials and took
advantage of their power to levy blackmail, mainly on Chinese
officials. In the other centres there were murders. The governor of
Yarkand, among others, was singled out for assassination; but an
exceptionally violent storm, which turned day into night, suggested
to the Chinese gamblers that heaven forbade the deed—and the
official still lives to tell the tale.
In consequence of the unrest and lack of security caused by these
deeds of violence, the Russian Government despatched a force 800
strong to protect Russian subjects. For some weeks after its arrival
there was no friction or cause of alarm, but the celebration of a
Chinese rite nearly gave rise to most serious consequences. On the
day of the Festival of the Departed Spirits it is the custom of the
Chinese to burn paper-money before the temples in order to ensure
financial ease for their deceased relatives. One of the temples in
Kashgar was the scene of this ceremonial, and a rumour reached the
Russian consulate that the bazar was on fire. Help was immediately
despatched in the shape of fifteen Cossacks, who, misunderstanding
the situation, forcibly put out the fires in which the paper-money
was being burnt. While this was being done some of the Cossack
horses broke loose and galloped back to the consulate, where
considerable anxiety was felt. The city gate was shut at the usual
hour of 8 p.m., and, upon its arrival, the Russian main body, under
the impression that their detachment had been cut off, blew it up
with dynamite, and marching through the opening found the
Cossacks perfectly safe.
Not long after this the “Gambler” regiment was ordered to Urumchi,
and the officer commanding the Cossacks, who was disappointed at
the entirely peaceful attitude of the Chinese, decided to attack it, his
plan being to carry out night manœuvres to the east of the city
across the line of march—and to create a “regrettable incident.” But
he reckoned without Sir George Macartney, who, getting wind of this
typically Russian scheme, which received confirmation from the
sudden departure of the Cossacks, induced the Chinese authorities
at the very last minute to change the line of march from due east to
north-west, with a wide detour afterwards to the north. Thanks to
this action by our able representative the trap was set in vain. The
regiment, which had obeyed its orders with deep reluctance, finally
reached Urumchi with its numbers much diminished by desertion,
and the ruffianly pork-butcher was subsequently put to death. The
Russian troops were shortly afterwards withdrawn from Kashgar, and
that city once again settled down to its habitual drowsiness.
In conclusion, the old-world policy of China was to surround her
fertile empire with buffer states. At the end of the eighteenth
century these included Annam, Siam, Burma, Assam, Bhutan,
Sikkim, Nepal, Ladak, Kashmir and Khokand, together with the
maritime provinces of Siberia. But the nineteenth century, which saw
the advance of Russia, the rise of Japan, and also powerful strangers
from the west thundering at the watergates of the Middle Kingdom,
brought heavy territorial losses to China, and to-day her system of
buffer states has been swept away by the new powers. Great Britain
has shown considerable activity and has occupied or gained political
ascendency over many of these states, and at the present time
marches with the Chinese Empire not only on the confines of Burma
to the south, but also on the borders of Ladak and Kashmir.
Russia, on her side, has made a great advance, and now occupies
Khokand, Andijan and the Khanates generally, together with the
Pamirs to the west of Chinese Turkestan; to the north the Russian
province of Semirechia, through which is being constructed a railway
that will attract much of its commerce, overshadows the province of
Chinese Turkestan.
Thus the old order of isolation, on which China relied, is passing,
and the new order, which includes modern methods of
communication, is coming into force, hastened by the desire for
progress which is affecting large sections of mankind in Asia.
The future of Chinese Turkestan is not finally settled, but the World
War which has temporarily broken up the Russian Empire will
undoubtedly stimulate China to move along the path of progress. If
so, there is hope that the condition of this outlying province of her
empire may benefit, more especially by improved communications.
At the same time there are many parts of Asia which have reason to
envy the peace and plenty enjoyed by the inhabitants of Chinese
Turkestan.
CHAPTER XVI
A KASHGAR FARMER
La latitude assez basse du Turkestan chinois combinée avec son altitude
considérable, la sécheresse de son atmosphère et ses saisons nettement
tranchées rendent le pays propre à des cultures très diverses, à celles qui
se contentent d’un climat tempéré comme à celles qui exigent des
chaleurs fortes et prolongées; mais excluent les plantes qui craignent les
froids hivernaux ou réclament une grande humidité.—Grenard, La Haute
Asie, ii. 173.
The cultivator, who is the backbone of Chinese Turkestan, depends

entirely on irrigated crops, as there is no regular rainfall in the
country. Rain, termed the “mercy of Allah” in Persia, is considered to
be the opposite in Kashgar, partly because of the utter irregularity of
its incidence. If there be a heavy fall in the spring, the soil cakes and
the young plants cannot force their way through, and this
necessitates a fresh sowing. Rain at harvest time, or when the
melons ripen, is equally unwelcome, and when there is a heavy
rainfall the farmer exclaims, “What great crime has been committed
that we suffer such a calamity?” Snow is regarded with less
disfavour. As a rule there is plenty of water for every one in the
Kashgar oasis, and fights for it occur only in the spring, when each
cultivator wishes to water his land first, in order to secure an early
crop for the market.
Owing to the abundance of water and the absence of hail-storms or
other serious climatic drawbacks, agriculture, except for rust and
blight, which are seldom experienced, is a certainty, in complete
contrast to the reputation it bears in countries that depend on the
rainfall for their crops. The life of the oasis, where every acre is
cultivated and where the agricultural population is comparatively
dense, is quite unlike that of Persia, where each village is
surrounded by square miles of uncultivated land, which furnishes
grazing, fodder and fuel. There are a few isolated villages, or groups
of villages, in Chinese Turkestan, but the country generally consists
of extensive oases set in a lifeless desert.
The chief crops are millet, rice, maize, wheat, barley, cotton, lucerne
clover, hemp, linseed, turnips, carrots and tobacco. Millet and rice
are regarded as the best-paying crops, the former occupying one-
half of the total area cultivated.
Of fruits and vegetables, apricots, grapes, peaches, nectarines,
quinces, cherries, figs, apples, pears, mulberries, pomegranates and
melons grow in great profusion, and pumpkins, which are the staple
vegetable, are supplemented by carrots, turnips, onions, cucumbers,
garlic and fennel.
The upper classes are less civilized than in Persia, partly because
they do not mix socially with the European colonies; good fruit trees
and seeds have therefore not been introduced. This state of affairs
reflects little credit on the merchants from Andijan, who could easily
introduce the magnificent fruit trees which are now grown at
Tashkent.
The Chinese of the New City farm much better than the native
Moslems, and have introduced the curious plum-cherry, with its blue,
white and red varieties of fruit, beans of various kinds, beetroot,
cabbages, including kohl rabi, lettuces, potatoes, tomatoes and
spinach; but there is little contact between the Chinese and Moslem
farmers, so that the latter do not learn much from the efficient
Celestials.
The trees in the Kashgar Oasis, other than fruit trees, include the
Lombardy and the spreading poplar, the latter growing to a great
size, and the Turkestan elm, of which a grafted species grows in a
pyramidal shape. The common willow and the Babylonian willow of
two species—one with an edible fruit resembling the Bohemian olive
—are planted along every irrigation channel and serve as fuel.
Next to agriculture the most important industry is the raising of live-
stock—horses, donkeys, camels, cattle, sheep and goats. The horses
bred by the Kalmucks around Karashahr are the best, being stronger
than the Kirghiz ponies, because the Kalmucks do not drink mare’s
milk. They are usually geldings, standing about fourteen hands, and
are ideal for transport purposes. The Kirghiz pony is hardy and
enduring, but not strong or up to much weight. The Yarkandi,
especially a roan, was a favourite mount in India in the last century,
and is mentioned in Anglo-Indian novels of the period; it is still
exported in small numbers.
A LOAD OF CLOVER FROM ISA HAJI’S FARM.
Page 302.
Donkeys are found in thousands and take the place of the

wheelbarrow and the cart in England, besides carrying the bulk of
the internal trade. Camels, of the two-humped or Bactrian species,
are highly esteemed, especially by the Kirghiz, as they are not
affected by cold or deep snow, and can cross rivers that ponies have
to swim. Cattle-breeding is carried on mainly in the mountains and in
the wooded tracts along the courses of the rivers. The animals are
small, and are bred for milk and for ploughing. Sheep are usually of
the fat-tailed species, but in the southern districts there is also a
short-haired breed. All animals, as a rule, are miserably thin owing
to the almost entire absence of grazing.
I think it may be useful to select a typical farmer and study his life
closely; for by this means we shall get down to the bed-rock of
definite fact, which is preferable to vague generalizations about
agriculture. Isa Haji, the subject of this sketch, was a farmer, aged
75, who lived not far from the city wall. Helped by two of his five
sons, aged 18 and 16 respectively, he farmed 40 mows, or about six
acres of land, which is the average size of a farm close to Kashgar.
Here the manure obtained from the city enables the whole of the
land to be cultivated at once, whereas farther off, where little
manure is available, the farms are larger because a part of the land
must always be allowed to lie fallow. One half of the Haji’s land was
devoted to lucerne clover, the remainder being sown with millet,
wheat, rice, cotton, melons and linseed. As a rule only one crop a
year was taken off the land; but millet, carrots and turnips were
sown after the wheat crop; in this case the millet did not ripen, but
was valuable as green forage; the clover was cut four times in the
year. In one corner of the farm were willow trees, which were
pollarded every four years to serve as fuel for the owners. Isa Haji,
being an old man, merely assisted in watering the fields, while his
sons did all the ploughing, harvesting and threshing. His two eldest
sons kept a grain-shop in Russian Turkestan, the third was a
bricklayer, and the others, when not at work on the farm, earned
sixpence a day as labourers. The Haji owned a yoke of plough-oxen
and four donkeys, the former being fed on cotton-seed and the
latter on millet. His agricultural implements included a primitive
plough, a harrow, mattocks of two sizes, sickles, zambils or hurdles
for carrying earth, a stone roller for threshing rice and a shovel for
winnowing. Manure, consisting of horse and cow droppings, night
soil and ashes, was bought in the city at the rate of threepence per
donkey load, and used freely on the land, which was a rich alluvial
loam; the frequent storms also deposited layers of dust which were
regarded as good for the crops.
The house, which Isa Haji owned and had built room by room as he
could afford it, at a total cost (including the land) of £50, covered a
square of sixty feet. The guest-room, in which he lived during the
summer and in which the meals were cooked and served, was about
twenty feet square and was lighted by a hole in the roof. A mud
platform covered with felts, on which the family slept, occupied a
prominent position, and the chief piece of furniture was a carved
box, which held clothes and served as a bedstead. Above it was a
shelf full of Russian teapots. Off this room opened the store-room, in
which grain was kept for winter consumption and which served as
the living-room in winter. There was also a courtyard partly roofed in
with matting during the summer, in which grew a shady tree, and
this was the chief working room of the wife and daughters-in-law at
that season. Here we noticed a cradle, a spinning-wheel and various
pans. Two small rooms belonged to two unmarried sons, and the
rest of the square contained stabling, an oven and a store for dry
fodder.
THE SONS OF ISA HAJI PLOUGHING.
Page 304.
The home was managed by the wife and her three daughters-in-law,
who cooked the food, looked after the children and made the
clothes. They did not work in the fields, but spun the cotton into
yarn, which they wove into the rough white calico of which most of
the clothing of the poorer classes is fashioned.
The staple food of the family was bread made from millet, a grain
that is held to be more sustaining than wheat or rice. Isa Haji’s large
family consumed all his share of the crops, except the lucerne and
some of the melons, turnips, carrots and linseed, which were sold.
The oil of the linseed was used for cooking and lighting.
The chief meal of these peasant-farmers was eaten at sunset and
consisted of suyukash, a soup prepared from pieces of paste-like
macaroni and vegetables boiled in water. In the morning they took
tea with cream and salt, and fruit and bread were eaten at odd
hours. Meat, generally beef, appeared on their table only once a
week. There was plenty of this rude fare, supplemented by slices of
pumpkin eaten hot and by other delicacies; and Isa Haji’s sons
appeared healthy, their teeth being noticeably fine and sound. They
said that they suffered a good deal from lack of warmth in the
winter, as charcoal was dear and had to be used sparingly. They
placed a bowl of lighted charcoal under a wooden frame, over which
a quilt was thrown, and the family sat by day and slept by night
under this covering, with their feet towards the centre.
Isa Haji had been the tenant of the farm for more than ten years. It
included three small properties belonging to three Kashgar
merchants. Two-thirds of the lucerne, amounting in value to about
five pounds, and one half of the other crops, were paid over as rent.
He had no security of tenure, and could be turned out at will, but
the prospect of this appeared to him unlikely, and he expressed
satisfaction with his lot.
The farm paid revenue to the extent of 105 lbs. of wheat, a similar
quantity of millet and 2100 lbs. of chopped straw, Isa Haji and his
landlords each paying one half of the whole. There had also to be
met the demand of the Chinese authorities for forced labour on
public works and transport, but this was compounded for in money
and might come to the equivalent of two shillings per annum.
Nothing was paid for the use of irrigation water, and the taxation
represented less than 5 per cent of the two main crops. In the case
of villages situated at some distance from the city double this
amount may be taken by the tax collectors, who are more exacting
in proportion to their distance from headquarters.
To sum up, we have an oasis in which agriculture is not affected by
the rainfall, but depends entirely on the rivers. The peasants have
enough to eat, a good climate and neighbours in abundance. There
are few parts of the world where the people are so contented, and,
although discontent might perhaps bring an improvement of their
lot, it is pleasant to see such cheerful, friendly tillers of the soil
leading a healthy agricultural life, and to meet them returning home
at night singing their tuneful songs:
How happy he who crowns in shades like these

A youth of labour with an age of ease;
Who quits a world where strong temptations try,
And, since ’tis hard to combat, learns to fly.
CHAPTER XVII
MANNERS AND CUSTOMS IN CHINESE TURKESTAN
Straight and slender-waisted are the maids of Kashgar,

Short, with sack-like figures, are the maids of Yangi Hissar.
A goitre above and fat below are the maids of Yarkand.
Arranging apples on saucers are the maids of Khotan-Ilchi.
Wearing felt caps, with foreheads high, are the maids of Sarikol.
The Maids of Turkestan. (From an old ballad.)
The inhabitants of Chinese Turkestan are divided by the

anthropologist into four distinct groups. The first consists of the
Sarikoli and Pakhpo mountaineers, who are pure Aryans. The second
is a desert group including the mass of the inhabitants of the
country, the basis of this population being Aryan with some Uighur
admixture, more especially at Aksu in the north. The third group is
formed of the Kirghiz, the Dulanis and the inhabitants of Aksu; the
fourth consists of the Chinese and Mongols, whose differentiation
from the Kirghiz is to be noted. The Aryan type has been best
preserved in the southern and south-western parts of the province,
with their rugged mountain areas which are difficult of access. In the
western districts Turkish influence is evident, in the northern the
Mongol zone begins, and this, as our survey moves eastwards, gives
place to the Chinese.
Throughout this work reference is constantly made to the people of
Chinese Turkestan, and here an attempt will be made to summarize
their character. They are distinctly to be classified as “tame,” in the
frontier officer’s sense of the word, being submissive, lacking in spirit
and ready to serve any master, provided that they can enjoy life in
their own way, with feasting, women and music. In their ballads they
complain of forced labour, with its separation from wife and family,
and they sing the praises of the home. But they are not faithful to
their wives: “Let every one follow his inclination and enjoy himself
with the woman he prefers. If the kings were just, every one would
have his beloved mistress at his side.” Lack of physical and moral
energy and dislike of hard, continuous work and, above all, of
discipline, are notable characteristics of these apathetic oasis-
dwellers; but against these imperfections, which they share, more or
less, with the neighbouring peoples of Russian Turkestan, must be
set many good qualities. Hospitality is found everywhere, strangers
are welcomed and the people are pleasant to deal with, their
politeness being especially marked. The Chinese rule, though
supported by few troops, is a living force, and this proves that the
people are law-abiding. Moreover, there is very little fanaticism, and
the inhabitants of Chinese Turkestan, although obedient to their
spiritual leaders, are not easily excited to rebellion. One inconsistent
trait in this home-loving race is the readiness they show to
undertake a journey, though travelling is generally hard and
wearisome; but perhaps the chief cause of this is curiosity, and, after
all, relatively few travellers leave their beloved province. “We love
our festivals” is the general refrain of this happy, but nonchalant,
race of lotos-eaters.
During the months we spent in this little-known country, I employed
my spare time in collecting information regarding its manners and
customs, which, as is natural, bore strong traces of Chinese origin.
They were also influenced by the fact that the people were
Buddhists for many hundreds of years before their forcible
conversion to Islam in the tenth century, when they became Sunnis,
looking up to the Khan of Bokhara and, above him, to the Sultan of
Turkey. Their holy places remained unchanged so far as the sites
were concerned, and on them shrines in honour of Moslem saints
have been erected. Ancestor-worship, too, is inherited from the
Chinese, with the result that the tombs are visited with a frequency
unknown elsewhere in Central Asia.
Girls, when they reach a marriageable age, visit one of the shrines
and pray as follows: “O Allah, O Lord of the Shrine, grant me a
house with a kettle ready placed on the stove, and a spoon in the
kettle. May it be a house with its four sides decorated with cloth,
with carpets and druggets ready spread, and with towels hanging
from the pegs. Grant me a husband whose father and mother are
dead; and may he have no other wife!” When the saint vouchsafes
to hear this delightfully naïve petition and a suitor appears on the
scene, there is no formal betrothal, although in the case of the
wealthy large sums are paid by the bridegroom and the bride is
richly dowered. Costly gifts, too, are given to the bride by the
bridegroom and by relatives and friends. In the case of a poor man,
a payment of merely one or two pounds sterling is made to the
parents, who defray the bride’s outfit from the money. The next step
taken is to obtain a certificate from the Imam of the quarter, that the
woman is free to marry, and after the payment of a small fee a
written permission for the marriage is given by the local Beg.
Nowadays there is no special wedding-dress, and even the globular
wedding-cap of cloth of gold or silver has ceased to be worn. The
marriage ceremony is generally celebrated at the termination of a
feast which lasts until the evening. A mulla reads the fatiha or
opening chapter of the Koran, after which the agent of the bride
goes to the women’s apartment and asks her thrice whether she
accepts the bridegroom, and upon receiving her bashfully given
consent, he returns to the men to announce the success of his
mission, thereby completing the nikah or legal ceremony. Two pieces
of bread soaked in salt water are then given to the bridegroom and
bride respectively, and this, in popular opinion, is the most important
act of the marriage. Indeed many marriages are contracted by the
observance of this custom alone, bread and salt probably
symbolizing the inauguration of a new household, although the
meaning has now been forgotten.
As the bride leaves her old home, the mother laments: “O my black-
eyed darling! Alas, my child, my child! My sweet-voiced, soft-eyed
darling! My daughter leaves me, and I remain in an empty house.
Alas, my child, my child!”
When conducted to her new home, the people of the quarter bar her
path by means of a fire, and demand gifts in the shape of
handkerchiefs. The groom, too, will not allow her to dismount from
her horse until he is handsomely fee’d, and finally, when the bride
enters her husband’s house, flour and cotton are set before her and
given away to the poor. This ceremony is termed Ak-Yul-luk or
“White Road,” and symbolizes a happy journey through life. During
the lifetime of the older generation the bridegroom is called kiau
oghli or “son-in-law” by the parents, and the bride kelin or
“daughter-in-law,” but she is spoken of as a chaukan or married
woman by her neighbours.
There is an immense difference between the villagers and the
townspeople in Kashgar, both in the position of women and in their
morality. The villagers as a rule marry only one wife and rarely
practise divorce, and their wives take a high position inherited from
pre-Islamic days. For example, it is customary to agree, before the
reading of the nikah, that the wife shall be taken to the shrine of
Hazrat Apak for tawwuf or “circling” of the tomb when the apricots
are ripe, other stipulations being that the woman cannot be taken to
another town without her consent, and sometimes that the husband
shall not take another wife. The women may frequently be seen
riding to market on good horses and attending to business almost on
an equality with the men. In the city wives are constantly divorced,
so much so that the majority of them remarry many times.
Temporary marriages, resembling in effect sigheh marriages in
Persia, are also very common, and some women systematically
indulge in divorces in order to gain money. They cannot remarry
until after the expiration of the iddat of three months and ten days,
but upon receiving two letters of divorce—generally obtained in
different towns—they can remarry at once by using the older letter.
It is an indication of the low position held by women in the towns
that a merchant, on starting off to business, will sometimes return
home if he first meets one of the fair sex, this being looked upon as
a bad omen.
Constant intermarriage, as in most Moslem countries, produces sad
results in the form of idiocy, deafness and dumbness in the
offspring, such visitations being especially noticeable among the rich,
landed classes, who intermarry generation after generation, in order
to keep the family property intact. So far is this policy pursued that
in the richest family of Kashgar many of the girls have perforce
remained single because there were not enough cousins to go
round. It is interesting to note that in this matter the Chinese go to
the opposite extreme, the whole nation being divided up into about
one hundred divisions, and no man being permitted to marry a
woman of his own division, although she be in no way related to
him.
In Kashgar, marriage is not the chief event in a woman’s life, the
ceremony of chachbagh or “braiding of the hair” being far more
important, although held at no fixed time after marriage, and not
depending on the birth of a child. It is celebrated by a great feast,
with dancing, which sometimes lasts for three days. Gifts, far richer
than those given at marriage, are bestowed on the wife, the parents
in many cases handing over landed property. The culminating point
is the appearance of the woman, who, attired in her richest clothes,
takes the seat of honour in the room; and then, in the presence of
all, her hair, hitherto worn in four or five plaits, is formally and for
the first time braided in two plaits, and she becomes thereby a
jawan. She is now entitled to wear five red semicircular strips of
embroidery on the right side of the neck of her gown, one below the
other, and increasing successively in length. In the case of the rich,
Indian cloth of gold is generally used.
One day a woman was seen weeping at a shrine, and her prayer
was as follows: “O Holy One! What shall I do? How shall I live? I
have been left an orphan. I am become a stranger. What shall I do?
Am I to suffer the hardships of an orphan? Am I to remain lonely? I
have no father, no mother. Every one is oppressing me. O Allah, I am
lost among friends and foes. Alas, my stranger’s fate! Alas, my
orphan’s fate! O Holy One, put love into the heart of my husband
and make his mind just towards me. O Allah, grant me the wish of
my heart, give me a son, a son with a long life. I have become a
stranger. Thou hast left me an orphan. O Allah, help me and make
my enemies like dust.”
After this fervent prayer the suppliant, with her eyes shut, put her
hand into a hole in the tomb and drew forth a morsel of earth, which
she swallowed. Her faith was justified, and in due course of time she
began to make arrangements for an easy delivery, to ensure which a
visit was paid to a bakhshi or magician. He played upon a drum and
chanted some incoherent gibberish, the woman meanwhile holding a
rope that hung from the roof, and dancing round it until giddiness
ensued. After this ceremony she paid a fee, gave alms to the poor,
and returned home with her heart at ease. Later on she visited the
tombs of her ancestors, taking with her an offering of food, and
begged them to intercede for an easy delivery and, above all, for the
birth of a son. She laid the offering near the grave, praised her
ancestors, lamented her own failings, walked round the tomb seven
times and finally distributed the food to the beggars. About a month
before the event, she went on foot to a place where there were
seven water mills, and after slowly crossing the seven ducts that fed
them, returned home with happy confidence in the special efficacy
of the ceremony.

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Equity and trusts 3rd Edition John Duddington

Equity and Trusts 2nd Edition Alastair Hudson

Private Equity A Transactional Analysis 3rd Edition

Course Notes Equity and Trusts 1st Edition Simon

Principles of Equity and Trusts Law 2nd edition Samanth

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Human Resource Management The Key Concepts Routledge

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First published 2003

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Chapter 1 Introduction to equity and trusts 01

History of equity Equitable maxims

Equitable remedies Definition/classification of trusts

l Rescission – to return parties to a l Can be expressed by settlor, implied

l Rectification – to change a document l Can be private (human beneficiaries)

Equitable interests Context of Trusts

l Easements – to enable legitimate use l Co-ownership.

1.1 A brief history of equity

■■ the writ system developed so that judges could reach decisions

1.1.2 The equitable maxims

■■ delay defeats equity:

1.1.3 Equitable interests (beside the trust)

1.1.4 Equitable remedies

1.1.5 The scope for expansion and development

2. The ‘fair and equitable’ cases in implied co-ownership illustrate this,

1.2 The basic character of a trust

1.2.2 Definition of a trust

■■ to another person(s) called the trustee(s) (the person(s)

1.2.3 Classifications of trusts

1.2.4 The context in which trusts operate

3. Different uses of the trust include:

■■ Protection of minors’ interests:

Capacity: Trusts of land:

2.1 Capacity and the creation of trusts

2.2 Formalities – general

2.3 Trusts of land

■■ by s2 Law of Property (Miscellaneous Provisions) Act 1989 contracts

2.4 Dispositions of existing equitable

2.5 Formality and fraud

2.6 The three certainties

2.6.2 Certainty of intention

4. Only sufficient intention to create a trust must be shown (Paul v

2.6.3 Certainty of subject matter

6. Absence of certainty of subject matter can have two possible results:

2.6.4 Certainty of objects

of the class and does not fail simply because it is impossible to

Is the gift land or personalty?

Is s53 LPA 25 complied GIFT IS

Does gift comply with the ‘three certainties’?

VALID EXPRESS PRIVATE TRUST IS FORMED

Objections to Accepted non-charitable purpose

The rules on unincorporated associations:

3.1 Non-charitable purpose trusts