EXTRACT FROM JUDGMENT OF EVE J IN re PRYCE [1917] 1 Ch 234

EVE J. These proceedings have been instituted by the plaintiffs, the present trustees of the settlement executed on the marriage in 1887 of the late Mr Pryce Meyrick Pryce with the defendant, who is now his widow, with the object ... of having it determined whether, in the events which have happened, the trustees ought to take any steps to recover or enforce payment or transfer to them of such, if any, of the said premises as the Court shall hold to have been caught by the said covenant or agreement respectively. ...
The interests given by the husband to the wife, and the husband's one-third share of the £4700 ... have only fallen into possession on the recent death of the husband's mother, and are still outstanding in the trustees of the parents' marriage settlement and in the trustees of the deed of family arrangement respectively. The question I have to decide is whether the plaintiffs as trustees of the marriage settlement ought to take steps to obtain transfer and payment to them of these premises. ...
The position of the wife's fund is ... that her next of kin would be entitled to it on her death; but they are volunteers, and although the Court would probably compel fulfilment of the contract to settle at the instance of any persons within the marriage consideration (see per Cotton LJ in In re D'Angibau), and in their favour will treat the outstanding property as subjected to an enforceable trust (Pullan v Koe), "volunteers have no right whatever to obtain specific performance of a mere covenant which has remained as a covenant and has never been performed": see per James LJ in In re D'Angibau. Nor could damages be awarded either in this Court, or, I apprehend, at law, where, since the Judicature Act, the same defences would be available to the defendant as would be raised in an action brought in this Court for specific performance or damages.
In these circumstances, seeing that the next of kin could neither maintain an action to enforce the covenant nor for damages for breach of it, and that the settlement is not a declaration of trust constituting the relationship of trustee and cestui que trust between the defendant and the next of kin, in which case effect could be given to the trusts even in favour of volunteers, but is a mere voluntary contract to create a trust, ought the Court now for the sole benefit of these volunteers to direct the trustees to take proceedings to enforce the defendant's covenant? I think it ought not; to do so would be to give the next of kin by indirect means relief they cannot obtain by any direct procedure, and would in effect be enforcing the settlement as against the defendant's legal right to payment and transfer from the trustees of the parents' marriage settlement. The circumstances are not unlike those which existed in the case of In re D'Angibau, and I think the position here is covered by the judgments of the Lords Justices in that case.
Accordingly, I declare that the trustees ought not to take any steps to compel the transfer or payment to them of the premises assured to the wife by the deed of December 12, 1904.