THE LAW OF TRUST 323
If there is a complete transfer of property although it is voluntary yet the legal conveyance being effectually made the trust will be enforced by the Court.
There are two ways in which a trust may be completely constituted:
(i) The settlor may convey the property to the trustees.
(ii) The settlor may declare himself to be a trustee of it.
- Distinction between complete and incomplete trust —
(i) A completely constituted trust is one in which the trust property has been finally and completely vested in the trustees.
(ii) A trust is incompletely constituted when the trust property has not been finally and completely vested in the trustees.
N OTE . —All trusts arising under wills are completely constituted, though may be either executed or executory—
(iii) A sellor must take all due steps to do all that it is his duty to vest the property in the trustee, and the instrument of conveyance must also contain a declaration of trust, if the settlor’s intention is to escape defeat.
- Consequences arising from this difference —
(i) An incomplete trust will be enforced if it is for valuable consideration. It will not be enforced if it is voluntary, i.e., without valuable consideration.
(ii) Valuable consideration in the law of trust, as in the law of contract, is some valuable thing assessable in terms of money, with the proviso that marriage, and also forbearance to sue is so considered.
(iii) A distinction exists between valuable consideration and good consideration. The phrase good consideration is applied to natural love and affection. Such a consideration though good is not valuable.
(iv) A good consideration does not make an incompletely constituted trust enforceable at the instance of a volunteer. It serves to rebut a resulting trust.
(v) How far marriage is a consideration :
(i) If the settlement is made before and in consideration of marriage, it is made for valuable consideration. So it is also, if made after marriage, but in fulfilment of an ante-nuptial agreement to settle.
(ii) But if the settlement is made after marriage, and not in pursuance of an ante-nuptial agreement, it is voluntary.