The second objection relates to future property In Re Cook it was said that a

The second objection relates to future property in re

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The second objection relates to future property. In “Re Cook” , it was 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 this issue. Jones (1965), Meagher & Lehane (1992), Rickett (1979) and Friend (1982) have argued that any limitation of the types of promise which can form the subject matter of a trust of a promise is conceptually flawed. A promise to settle after-acquired property is no different to a promise to settle presently existing property. Meagher & Lehane says: “ …There would seem to be no reason in logic or policy for drawing any distinction between the right to sue for a promise to settle existing property and the right to sue for a promise to settle future property… If the promise is actionable, what does it matter whether the property to which it relates exists or not? Lee (1969) and Barton (1975) have argued that the limitation is logical and that a real difference should be drawn between promises to settle present and future property. Lee says: “ … The covenant to transfer after acquired property cannot give rise to a trust relationship; it is merely a 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. But a covenant to pay a sum to be ascertained in the future is just as good a chose in action as a covenant to pay a specified sum, and it creates legal property of value. The subject-matter of the trust is the benefit of the covenant, the chose in action; not the property which will be obtained by its performance. For instance, there is no difficulty in a trust of a bank account, which is a chose in action, its value varying with the state of the account from day to day. However, “Re Cook” is justifiable on the basis that there was no intention to create a trust of the benefit of the covenant. III.) Enforcement by The Intended Trustee:
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Promises to Create a Trust 5 Since the trustee is a direct party to the covenant, he can obviously sue 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 directions from the court whether they were bound to sue the settlor or not. The court directed him not to sue neither can he enforce the covenant in favour of the volunteer beneficiary, i.e. next-of-kin. This ruling was followed 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 first instance which makes the mater quite controversial.
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