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The second objection relates to future property. In “Re Cook”, itwas said that a covenant to settle future property cannot be the subject-matter of a trust, because it does not “create a debt enforceable at law…that is to say, a property right”. There is a lot of academic debate on thisissue. Jones (1965), Meagher & Lehane (1992), Rickett (1979) and Friend(1982) have argued that any limitation of the types of promise which canform the subject matter of a trust of a promise is conceptually flawed. Apromise to settle after-acquired property is no different to a promise tosettle presently existing property. Meagher & Lehane says: “…There wouldseem to be no reason in logic or policy for drawing any distinctionbetween the right to sue for a promise to settle existing property and theright to sue for a promise to settle future property… If the promise isactionable, what does it matter whether the property to which it relatesexists or not?”Lee (1969) and Barton (1975) have argued that the limitation islogical and that a real difference should be drawn between promises tosettle present and future property. Lee says: “… The covenant to transferafter acquired property cannot give rise to a trust relationship; it is merelya promise lying exclusively in contract, and ante limen the law of trusts”.However, it seems that this restriction is not supportable. Obviously,future/unascertained property cannot be the subject-matter of a trust. Buta covenant to pay a sum to be ascertained in the future is just as good achose in action as a covenant to pay a specified sum, and it creates legalproperty of value. The subject-matter of the trust is the benefit of thecovenant, the chose in action; not the property which will be obtained byits performance. For instance, there is no difficulty in a trust of a bankaccount, which is a chose in action, its value varying with the state of theaccount from day to day. However, “Re Cook”is justifiable on the basisthat there was no intention to create a trust of the benefit of thecovenant.III.)Enforcement by The Intended Trustee:
Promises to Create a Trust5Since the trustee is a direct party to the covenant, he can obviouslysue the settlor for breach of promise at common law, not at equity.However, three cases from courts of equity, “Re Pryce”, “Re Kay”and“Re Cook”stand in his way. In “Re Pryce”, the trustee sought directionsfrom the court whether they were bound to sue the settlor or not. Thecourt directed him not to sue neither can he enforce the covenant infavour of the volunteer beneficiary, i.e. next-of-kin. This ruling wasfollowed by Simonds J in “Re Kay”and Buckley J in “Re Cook”. Although,these cases have never been overruled, but they all are decisions at firstinstance which makes the mater quite controversial.