Fletcher v Fletcher (1844) 4 Hare 67

  • by Lawprof Team

    • Key point

    • A covenant to settle (i.e. to pay over a sum into a trust) can be held on trust by the trustees (who are the covenantees) for the intended beneficiary of the covenant

    Facts

    • By a voluntary deed, F covenanted with trustees to pay £60,000, which the trustees were to hold upon trust for his illegitimate son (who was not within marriage consideration and therefore a volunteer)
    • The trustees were unaware of the deed which was found among F’s papers after his death
    • F’s son (C) sued for breach of trust against F’s executor

    Held

    • C was entitled to damages for breach of trust

    Wigram VC

    • C was entitled to enforce the covenant against the father’s executor despite being a volunteer
    • A covenant can be the subject of a trust, held for the benefit of a volunteer
    • If C was the covenantee he would be able to recover, the interposition of a trustee should not make any difference

    Commentary 

    • The theoretical basis for the judgment is that the covenant itself is held on trust for the illegitimate son
    • The counter argument is that there is no evidence that F ever declared that the covenant was itself held on trust
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