Strong v. Bird: Equity's Exception in Property and Trust Law

This case study analyzes the landmark property law case of Strong v. Bird, which provides an exception to the maxim that "Equity will not assist a volunteer." The case involves a loan from a stepmother to her stepson, intended to be repaid through reduced rent. The stepmother later made the stepson her executor, and the court ruled that this appointment, along with her actions, transformed the loan into a gift. The analysis explores the concepts of donatio mortis causa (gifts made in contemplation of death) and the rule established in Strong v. Bird, which allows an imperfect gift to become perfect when the donee is appointed as the donor's executor. It also examines the relationship between these concepts and the general rules regarding the formation of trusts, including the maxim "Equity will not assist a volunteer." The paper discusses the conditions necessary for the application of the rule in Strong v. Bird, highlighting its significance in situations where a donor makes an imperfect gift during their lifetime and subsequently appoints the donee as executor. The analysis considers relevant case law, including Milroy v. Lord and Re Beaumont, to illustrate the complexities and exceptions within equity and trust law.

The case of Strong v Bird1 is a property related case that is an exception to the maxim
“Equity will not assist a volunteer”. The facts related to the case were that Bird rented
£1,100 from his stepmother who was paying him rent for living with him. Both of them
agreed for the refund of the loan by reduction in rent till the settlement of loan. The rent
was paid by his stepmother only twice and afterwards, she paid full rent until she died. She
selected Bird as her executor and her relative approached him for recovery of debt after her
death. The stepmother of Bird stopped paying rent as she pad the entire rent but, it could
not discharge Bird from his liability to pay the debt. However, the conduct of his stepmother
displayed no consideration for release of debt as well. The issue in the case was whether
Bird had to reimburse the loan or not.2 The judgment was that the selection of Bird as the
executor proved the loan to Bird as a gift by his stepmother because the executor is
considered as a person responsible for dealing with the debt matters related to the property
of the testator, so it could not be possible to sue him or herself for the debt.3 Thus, common
law judgments cancelled the debt in order to avoid such an abnormality. Above that, it was
also proved that the intention of stepmother had continued till she died as she paid full rent
during her last time.
This paper will discuss that to how much extent the donatio mortis causa and the rule in the
case is to create exceptions to general rules regarding formation of trusts as well as to
assess their relationships with the maxim “equity will not assist a volunteer”.
Donatio mortis causa refers to a gift given by a person during his last moments of life before
death, with an intention that in the situation of his/her death, the gift will be kept in the
possession of donee.4 However, such a gift is discharged from the property of the dead
person because it does not belongs to them at the time of death as it is considered to have
been transferred retroactively as soon as it was gifted. There are a number of jurisdictions in
1 Strong v Bird [1874] LR 18 Eq 315
2 Colin, "Strong V Bird", Thedailyfili.Blogspot.Com, 2015
<http://thedailyfili.blogspot.com/2015/07/strong-v-bird.html> [Accessed 20 February 2019].
3 Billy Sexton, "Equity & Trusts – Formalities", Allaboutlaw.Co.Uk, 2016
<https://www.allaboutlaw.co.uk/stage/study-help/equity-trusts-formalities> [Accessed 21 February
2019].
4 Legal Causa, "Legal Definition Of Donatio Mortis Causa", Upcounsel, 2019
<https://www.upcounsel.com/legal-def-donatio-mortis-causa> [Accessed 5 February 2019].

which, real property could not be transferred by such death-bed gifts.5 Taking into
consideration, the nature of donatio mortis causa, such a gift resembles a donation wherein,
it is not complete during the life period of donor and thus it is considered as revocable by
the donor regarding his/her debts upon the lack of possessions. However, the procedures in
such a kind of gift do not require the executor of the donor to prove the gift at perfect even
if it is imperfect. In order to establish a good donatio mortis causa, following circumstances
are essential; The gift of personal property such as a bond, bank currency, cheque accessible
for payment during life period of donor is taken into consideration; The gift by donor in risk
of death and comes into effect only after the death of donor and actual delivery of gift to
donee but such delivery could be made to third person to be used by donee.
It is obvious that following case law has required being off from such norm by presenting
various exceptions that could allow incomplete gifts to be perfect for donee. However,
various criticisms and debate have occurred regarding this area of law, it has also been
realised that the scope for the exceptions has increased. On the other hand, it has also been
argued that it could be in-acceptable to the parties for the gift not to be perfected. Even
so, the fact that the exceptions are predictable will continue and would create a topic for
criticisms and debate. In case of Milroy v Lord6, it was held by the court that trusts should
not be utilised as guarding the gifts and followed the maxim of equity -“Equity will not assist
a volunteer”. The judge stated that equity could not assist the volunteer to perfect a gift
which is already imperfect. The court placed three modes of offering a gift which were
transfer on trust, absolute transfer and self-declaration of trust. The gift given through
transfer of trust and absolute transfer are considered as imperfect because the legal
formalities in such a transfer are not satisfactory due to which, the property could not
belong to the donee legally. On the other hand, there is no requirement of constitution in
case of self-declaration of the trust because the rights are already vested in the intended
trustee or donee. The trust is constituted perfectly in this mode after the declaration is
made as the rights are held by the intended trustee.7
5 Duhaime's Law Dictionary, "Donatio Mortis Causa Definition", Duhaime.Org, 2019
<http://www.duhaime.org/LegalDictionary/D/DonatioMortisCausa.aspx> [Accessed 5 February
2019].
6 Milroy v Lord [1862] EWHC J78

Strong v Bird8 is of huge significance in the situations where donor offers an imperfect gift
during lifetime and donee is afterwards selected as the executor of donor, so the gift
becomes perfect as the donee receives legal entitlement to the property of the donor which
includes the relevance of the intended gift, in the authority of the donor as an executor or
administrator. There are four conditions through which this rule could be pertinent in this
case and these are; intent of the donor to make an inter vivos gift i.e. arises in a subsequent
condition; the donative intention of the donor must persist till his/her death; the donee
must be selected as the executor or administrator of the donor and the relevance of
intended gift must have been continuing till the death of donor.
According to Blackstone, in the process of transaction in donatio mortis causa, a person
during his/her last sickness apprehends his/her dissolution, transfers the ownership of
private possessions to donee to maintain in case of his/her death. The judgment in Strong
v Bird9 is an exception to the general proposition rule. Such a gift is recognised by the
authorities to be an inconsistent notion in various ways. In Re Beaumont10 such gifts were
considered to be having amphibious nature. These types of transactions are similar
anomalous to trust in common law system such as donatio mortis causa have always been
considered as exceptional.11 The main issue arises when the traditional distaste of equity
for the acknowledgement and execution of gifts contrasted with trusts even entirely
voluntary transactions, which becomes difficult to understand.
The exceptional features of donatio mortis causa are that it acts as an exception to the
condition that the gifts that comes in effect on the death of donor, must obey the legal
requirements similar to a valid will imposed under the Wills Act.12 However, it is a gift that
7 Gareth Evans, "Constitution and formalities of a trust", Digestiblenotes.Com, 2018
<https://digestiblenotes.com/law/trusts/constitution_and_formalities.php> [Accessed 5 February
2019].
8 Strong v Bird [1874] LR 18 Eq 315
9 Strong v Bird [1874] LR 18 Eq 315
10
11 Life of a London Law Student, "Constitution Of Trusts", Life Of A London Law Student, 2015
<https://lifeofalondonlawstudent.com/constitution-of-trusts/> [Accessed 5 February 2019].
12 Oxfordindex, "Rule In Strong V Bird - Oi", Oxfordindex.Oup.Com, 2019
<http://oxfordindex.oup.com/view/10.1093/oi/authority.20110803100433288> [Accessed 5 February
2019].

comes into effect inter vivos provisional on death; so, it is not suitably a transaction i.e.
testamentary. On the other hand, it assumes some of the features of a testamentary
character which could be revocable any time earlier to the death of the donor similar to
the will. Thus, the nature of donatio mortis causa could conventionally be expressed as
that of peculiar type of gift that exist between the inter vivos gifts as well as testamentary
gifts. The exceptional character of donatio mortis causa arises within equity itself which
imposes limitations on the acknowledgement and application of voluntary transactions
except if there is equitable reason behind it.13 It is a maxim that the equity will not assist a
volunteer to perfect an imperfect gift. It is clearly evident that a donatio mortis causa may
in fact be imposed by the volunteer or the donee and the courts of equity could impose it.
There are various exceptions in equity to the rule against supporting the volunteers which
itself emerge to be anomalous. In Morris v Handley14, the Supreme Court of NSW stated
seven exceptions which also included donatio mortis causa. It might be a question in
number of cases if there is any imperfection specifically under donatio mortis causa. If the
property which is subjected to transaction is in the hands of recipient conditionally i.e.
when the transaction subjected to the condition following (death of donor) for the purpose
to be fulfilled, then the title gets completed just after the death of the donor. This in itself
is enough to implement it against any entitlement by the legal representative.15
In some situations, the method of assigning the gift might itself be regarded as incomplete
as the donor might not have completed all the legal procedures in his/her power to
complete the procedure of gift in conformity with common legal regulations associated
with the separation of property which is subjected as gift to other person.16 In such a
situation as the gift is ultimately to be transferred to the volunteer even if it is imperfect, it
does not make any sense. It has been implied by the maxim itself that the general position
of equity related to the voluntary assignments is stringent but for gifts of equitable
13 Oxfordreference, "Rule In Strong V Bird - Oxford Reference", Oxfordreference.Com, 2019
<http://www.oxfordreference.com/view/10.1093/oi/authority.20110803100433288> [Accessed 5
February 2019].
14
15 LLC Revolvy, ""Strong V Bird" On Revolvy.Com", Revolvy.Com, 2019
<https://www.revolvy.com/page/Strong-v-Bird> [Accessed 5 February 2019].
16 Robert A Pearce and Warren Barr, Pearce & Stevens' Trusts And Equitable Obligations
(Oxford University Press, 2015), p. 28.

property, it is not as strict as assign ability is primarily a matter of intention such as for
beneficial trust interests, writing process is essential. However, in case of gift of legal
property as in Milroy v. Lord17, it becomes essential to determine the efficiency of the
supposed assignment in equity.18donatio mortis causa is similar to equity and the reason
behind it is its suitability into transaction category where there is sufficient equity in order
to validate its application against other legal applicants to the entitlement. After taking
into consideration the case of Milroy v. Lord19, it can be clearly stated that donatio mortis
causa is perhaps an exceptional voluntary transaction similar to that of a trust.20 The
donatio mortis causa has always played an exceptional character considering that it
functions as an exception to the formal legal values which include those belonging to gifts
of both nature inter vivos or by will. In common law system, equity has been imposing the
transactions wherever the needs of general equity, justice as well as good conscience are
demanded. Similar role has been played by donatio mortis causa in the case of Strong v.
Bird21 where the done was made the executor by the donor before she died and the court
cancelled the debt remnant over donee as he himself was the executor to that property
and the rule of donatio mortis causa was implemented.
Conclusion
After the analysis of the case and the related rules and exceptions applied to this case, it has
been realised that the donatio mortis causa was used as an exemption to the general rules
regarding formation of trusts in this case because executor of the property whose
responsibility is to deal with all the matters related to the debts, cannot sue himself/herself
for not paying the dues as he possess all the rights over the property after the death of the
donor. It has been proved that the exceptional character of donatio mortis causa arises
within equity as it imposes various limitations on voluntary transactions except if there is
equitable reason behind it. The equity cannot assist a volunteer means that equity will not
17 Milroy v Lord [1862] EWHC J78
18 Robert A Pearce and Warren Barr, Pearce & Stevens' Trusts And Equitable Obligations
(Oxford University Press, 2015), p. 28.
19 Milroy v Lord [1862] EWHC J78
20 Robert A Pearce, John Stevens and Warren Barr, The Law Of Trusts And Equitable
Obligations, (Oxford: Oxford University Press, 2010), p. 3.
21 Strong v Bird [1874] LR 18 Eq 315

perfect an imperfect gift; however, it was clearly evident that a donatio mortis causa might
be imposed by the volunteer or the donee and the courts of equity could implement it. So,
all are interrelated to each other.
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