which guided the Court of Chancery, and the term ‘equity’ implies a system of law which is more consonant than the ordinary law with opinions current for the time being as to a just regulation of the mutual rights and duties of men living in a civilised society. Yet there was never a time in the history of the Court when the Chancellor was at liberty to follow generally either his own, or professional or common opinions as to what was right and convenient. Law and administration of law are, in all systems, intended as a means of attaining justice, but the means are imperfect. The special imperfections of mediaeval common law were, as to the law itself, that its rules were too strict, and that it did not cover the whole field of obligations; as to its administration, that it had no effectual means of extracting truth from the parties, that its judgments were not capable of being adapted to meet special circumstances, and that they were often unenforceable through the opposition of the defendant, or were turned into means of oppression. Insofar as it remedied these defects, the Court of Chancery afforded an improved system of attaining justice, but this was the extent of the difference between law and equity. Each had the same object; each attained it only imperfectly—equity somewhat less imperfectly than law. Both, moreover, were developed in the same way, by decisions given in accordance with precedents and subject to professional criticism. From the beginning the Court of Chancery acted on the maxim that equity follows the law, and, in cases where the legal analogy clearly applied, the rule of law was adopted, however harsh it might be”.

mirrored in the history of the Royal Court. It may well be that “equity” in Jersey inclines more to the French “equité” than its English counterpart. I have not been able to find the word “equité” in the Ancienne Coutume de Normandie, or in the Commentators, but I note that in the Dictionnaire de Droit et de Pratique (of France it is true and not only of Normandy) by De Férrière, published in 1771, there appears the following under the title of Equité:—

application of such fundamental canons leads nowhere, the draftsman has used words wrongly, his sentences border on the illiterate and his grammar may be appalling. It is then the duty of the Court by the exercise of its judicial knowledge and experience in the relevant matter, innate common sense and desire to make sense of the settlor’s or parties’ expressed intentions, however obscure and ambiguous the language that may have been used, to give a reasonable meaning to that language if it can do so without doing complete violence to it”.

that even if as a result of my decision, Jersey tax may be affected, the transaction’s main purpose, or at least one of them, was not to avoid or reduce any liability to Jersey Income Tax. I mention this because Article 134(A) is widely drawn and is one which draftsmen of trusts in Jersey I feel sure bear in mind constantly.

designed for one type of society long past ought not to be continued beyond the needs of that society. That is another way of saying that obsolete laws ought not to be enforced, but if, as I have shown, the maxim has been applied at least twice in comparatively recent times, why should it be excluded from applying to modern trusts and settlements? Mr. Pearmain’s argument might be true as regards obsolete laws which have been unused for many years. It cannot be used to support a submission that where the laws in question are still clearly part of the Island’s Laws as accepted quite recently by the Royal Court, it would be wrong to impose them merely because it might cause embarrassment to part of the Island’s business community. I am unable to accept Mr. Pearmain’s submission on this point; that would be to out-Denning Denning!

trustees or trustee of any other Settlement (whenever constituted and whether or not subject to the law of Jersey) under which no person who is one of the Beneficiaries can take any beneficial interest (save for reasonable renumeration payable to the trustee thereof) to be held by the Trustees of such other Settlement upon the Trusts therein declared and to the law governing such trusts”.

in the statute? It is settled that we must in applying the statute look at the substance of the transaction and disregard conveyancing forms.” Thus it is not for me to decide whether the correct forms have been used to create a particular form of trust (under English law) but whether the intention is clear from the words of the clauses themselves.

subsequent letters show that certain terms had not been agreed. When, however, a contract has in fact been completed and reduced to writing the Court is not entitled to consider antecedent acts or correspondence, or to look at words deleted before the conclusion of the contract, in order to ascertain the meaning of the contract in writing finally agreed upon.”

that far from standing alone, clause 2 is subject to what follows in clauses 3(i) and (ii) as regards income and to clauses 4(ii) and (iii) as regards capital with attendant income. If the trustees under clause 3(i) do not irrevocably appoint the income to a class of beneficiaries (I repeat I have not been asked to decide whether the beneficiaries are ascertainable with sufficient certainty and I have made no decision on that point) or having appointed beneficiaries revoke that appointment, then under clause 3(ii) they may accumulate the income. It is true that I have to be satisfied as to the meaning of the word “allocate”. Does this mean that the trustees can only accumulate the income if they have first decided that they would wish to allocate, but nevertheless accumulate? Or are the words merely a loose way of giving the trustees power to withhold the income from the applicant and accumulate the income whether or not they make any conscious choice of allocation? Even taking clause 2 as qualified by clause 3 as regards income, is there in the two clauses that conceptual uncertainty referred to by the House of Lords in Whishaw v. Stephens, [1970] A.C. 508, sub nom. Re Gulbenkian’s Settlement Trusts, [1968] All E.R 785, that might avoid the power? I do not think there is; even if there was some ambiguity the clause should be construed against the settlor who, in the capacity of both donor and donee, as clearly Lord Wimborne is, comes as a stranger to the trust (Vincent v. Spicer (1856), 22 Beav. 380; 52 E.R. 1154, at page 380). Furthermore in Re Gulbenkian, Lord Reid said this—

Pearmain said it was unlikely that having transferred something like 70% of his fortune to the trustees, Lord Wimborne was going to put himself at their mercy. But as I understand it, that is the very essence of a discretionary trust as opposed to a fixed trust. Moreover, certainly as regards income at least, Lord Wimborne had vested it in the trustees with powers which they could exercise without his consent. In short, Lord Wimborne’s interest is the opposite of certain; it is precarious and I answer the question in paragraph 9 of the Representation by saying that the trustees have the right to withhold current income of the trust fund from the applicant. It follows that I must refuse to give the declaration sought on page 7 in the Representation.