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1. Assignments of Equitable Interests and the Origins of Re Rose
Aleksi Ollikainen-Read*
A good sign that a legal principle has not satisfactorily been analysed is that we call it a
‘rule’ and name it after a case. The neologism then allows us to talk confidently at dinner parties
and before judges about the law as though we understood its logical foundations, when nobody
really knows—it is the academic equivalent of the Emperor’s new clothes.
The approach in this paper is to recognise that the Rule in Re Rose has long
developmental roots that can assist in determining what it means and how it should be applied.
The principle is already present in some of the foundational cases of trust law, though Re Rose
did involve a modification in how the principle applies that is by no means insignificant. This
paper aims to expose some of the important developmental history of the rule in Re Rose, and
suggest ways in which the law as it stands now could be made more coherent and logical using
this background.
Early Origins of the Rule
It is helpful to think of the following developmental history as exhibiting two (main)
versions of the relevant principle, in two classes of cases. The first version, the negative form, is
simply that a court cannot create a trust that is not borne out by the facts. A gift does not turn
into a trust, because donative intent is not the same as the intention to bind the recipient under
an obligation deal with the assets in a certain way. This is the form of the rule we know from
Milroy and Richards v Delbridge. The second, the positive form, is that a transferee can enforce an
*
Senior College Lecturer in Trusts, Keble College, University of Oxford. I am grateful to Chee
Ho Tham for his thoughtful comments on a draft of this paper.

2. interest where the transferor has done everything in his power to effect its transfer. The origin of
this form is in the context assignments of equitable interests in existing trusts. The development
of the Re Rose principle shifts from the former to the latter, and from cases dealing with equitable
interests (eventually) to those about legal title.
These principles have long pedigree. The maxim we know from Milroy v Lord, that Equity
will not complete an incomplete gift, is in fact part and parcel of the foundational case of Burgess
v Wheate.1
The factual background is complex, but for our purposes at the time of judgment the
plaintiff, Richard Burgess, was the heir of one Elizabeth Harding who had formerly been a
beneficiary of the trust of land but had conveyed her equitable interest to the trustees to satisfy a
debt, on the understanding that the trustee would re-convey upon request the two leasehold
terms to Elizabeth, her husband and their heirs. This was never done.
The defendant, Wheate, was the personal representative (executor) of Sir Francis Page,
the last surviving trustee (now deceased). Sir Francis had taken possession of the land held on
trust. Burgess brought the claim to have Sir Francis Page’s interest conveyed to him, and the
Attorney General was joined at first instance on behalf of the Crown.
The important part of the case for this paper is the plaintiff’s position. The plaintiff
argued that there is no vacuum in the beneficial interest (thus avoiding the land going to the
Crown under escheat or the trustee holding absolutely), as Richard Burgess now held it. The
problem with this is that Burgess could not have inherited such an interest from Elizabeth
Harding, so if he were to hold one now it would mean the court would create it by the very act
of giving judgment – it would be ‘the execution of a trust that does not exist’.2
1
Burgess v Wheate (1759) 1 Eden 177.
2
ibid, 250-51.

3. This, at its bare bones, is the idea that the court does not have the power to give the
beneficiary an interest that the facts do not support, nor can they execute a trust that was never
made. All the ingredients of the principle of Re Rose are there, though in negative form.
The principle was refined over the following century, resembling the rule in Re Rose more
and more with the important distinction that transfers of legal title cannot be effected by a court
of equity. In Colman v Sarrel (1789), Lord Chancellor Thurlow stated: ‘Where a deed is not
sufficient in truth to pass the estate out of the hands of the conveyer, but the party must come
into Equity, the Court has never yet executed a voluntary agreement’.3
In Ellison v Ellison (1802),
Lord Eldon LC relied on the principle that ‘as upon a covenant to transfer stock, &c, if it rests in
covenant, and is purely voluntary, this Court will not execute that voluntary covenant: but if the
party has completely transferred stock, &c, though it is voluntary, yet the legal conveyance being
effectually made, the equitable interest will be enforced by this Court’.4
In Dillon v Coppin (1839)
the principle was followed: ‘It was, indeed, argued that the father had [by a deed stating his
intention to assign East India stock and Globe shares that were subject to additional restrictions
on transfer] made himself a trustee of the property. (…) [F]ar from making himself a trustee of
the stock, he states, upon the instrument, his intention of perfecting the gift by a transfer of the
stock, and endeavours to provide the means by which the grantee may obtain the legal title’.5
The same principle is present in Bentley v Mackay.6
A father instructed his trustees to hold
his dividends from a marriage settlement and pay them to his son. The trustees received only one
half-yearly dividend before the death of the father, but paid this dividend over. The residuary
3
Colman v Sarrel (1789) 1 Ves Jr 50, 54-55.
4
Ellison v Ellison (1802) 6 Ves Jr 656, 662.
5
Dillon v Coppin (1839) 4 My & Cr 647, 671.
6
Bentley v Mackay (1851) 15 Beav 12, 51 ER 440.

4. legatees of the father sued the son for the money, but the court of first instance found that the
dividends had no longer formed part of the father’s estate.
This case is therefore an earlier form of the well-known case of Milroy v Lord,7
and was
argued in the same way; ‘a voluntary but incomplete gift cannot be perfected or enforced in a
Court of Equity.’8
Sir John Romilly MR held that there are two distinct classes of cases of
voluntary gifts: one where legal title is being transferred (which would later become the Milroy v
Lord issue), and another where a beneficiary wishes his trustee to become a trustee for another,9
or transfer his equitable interest. In the former case, ‘the court requires everything to be done
which is requisite to make the legal transfer complete; for if anything remains to be done, this
Court will not be made an instrument for perfecting it.’10
This did not apply in Bentley.
In the second case, what is required is clear evidence of a declaration of trust, for which
the court will not only look at the words used by the beneficiary wanting to transfer his interest
but also whether his actions are in conformity with the alleged declaration of trust.11
In this case,
the Master of the Rolls found clear evidence that the father had intended to divest himself of his
beneficial interest, and create a trust in favour of his son.12
Every act of the father had been
consistent with the existence of a trust.13
7
Milroy v Lord (1862) De GF & J 264.
8
Bentley v Mackay (1851) 15 Beav 12, 16.
9
Ibid, 18.
10
Ibid, 18.
11
Ibid, 19.
12
Ibid, 21.
13
Ibid.

5. The principle that became the ‘rule in Re Rose’ was therefore originally simply that the
requirements of a trust must actually be present for there to be an enforceable equitable interest.
The settlor must actually transfer legal title to the trustee, and the legal title must be made subject
to the beneficiary’s equitable title.
‘Done Everything in His Power to Effect the Transfer’
Once the trust was there, no specific form was needed to transfer an existing equitable
title, leading to the phrase that the transferor simply ‘must have done everything in his power to
effect the transfer’. This main principle was confirmed in Harding v Harding.14
In that case the
trustees of a will sent an account to one of the residuary legatees, who sent it on to his daughter
with a handwritten note at the foot of it saying the daughter was entitled to it. The daughter sued
to enforce the interest. The trustees resisted, claiming that a voluntary transfer without
consideration could not be a valid equitable assignment.15
Wills J (with whom Grantham J
agreed) stated:
The rule in equity comes to this; that so long as a transaction rests in expression of
intention only, and something remains to be done by the donor to give complete effect
to his intention, it remains uncompleted, and a Court of Equity will not enforce what the
donor is under no obligation to fulfil. But when the transaction is completed, and the
donor has created a trust in favour of the object of his bounty, equity will interfere to
enforce it.16
It is clear from this passage that an expression of intention to divest oneself of an
equitable interest is not effective, because no obligation is created in the donor by mere
expressions of intention. What is needed is 1) an assignment of the interest authorising the
14
Harding v Harding (1886) 17 QBD 442.
15
Ibid, 443.
16
Ibid, 444. This of course is later made into the rule in Re Rose [1952] Ch 499.

6. assignee to sue and recover benefit from the trustee; 2) the assignee must give notice to the
trustee and 3) the trustee must accept the notice and act on it.17
The phrase ‘done everything in his power’ refers to the fact that as between the original
and new beneficiary, the transfer is effective before the new beneficiary gives notice to the
trustee. This principle has been consistently followed in cases of equitable assignments.
In Kekewich v Manning, the defendant created a marriage settlement in favour of her niece,
and later created a new settlement of the same property when she remarried. The niece,
Elizabeth Bradney, brought a claim against the trustees of the first settlement, asking that the it
be put into effect and the second settlement restrained. The defendants argued that Miss
Bradney was a volunteer and not within the marriage consideration of the first settlement, and
that the gift was therefore imperfect. Lord Justice Knight Bruce stated:
Suppose stock or money to be legally vested in A. as a trustee for B. for life, and, subject
B.’s life interest, for C. absolutely; surely it must be competent to C. in B.’s lifetime, with
or without the consent of A., to make an effectual gift of C.’s interest to D. by way of
mere bounty, leaving the legal interest and legal title unchanged and untouched.
(…)[W]hatever rule there may be against “volunteers” it does not apply to the case of
one who, in the language of this Court, is termed a cestui que trust, claiming against his
trustee.18
In deciding the case for the claimant, Knight Bruce LJ reasoned that the defendant, Lady
Farrington, was a trustee together with her mother and had a beneficial interest. One of the
trustees was a party to the settlement directly, and the other had notice of the transfer of a
beneficial interest to the niece. Both trustees were therefore notified of an effective transfer of
equitable interest; ‘what more could have been done that it was within the power or competency
17
Ibid, 446, per Grantham J. This last point becomes an important aspect of the Re Rose
principle, as explained below.
18
Kekewich v Manning (1851) 1 De G M & G 176, 188-89.

7. of (…) Lady Farrington to do to enforce?’19
The only remaining question was whether a trustee
can refuse trusteeship to the new beneficiary when notice is given – ‘surely not’.20
Donaldson,21
in its application of these principles, is more striking. The case involved a
deed of settlement, whereby Thomas Hudson assigned a large amount of property to trustees to
hold for certain beneficiaries under a deed, including some £29,400 of bank shares, which
Thomas Hudson had gained in a marriage settlement. In the deed he declared that this property
held by the marriage settlement trustees was to be transferred to the trustees listed in the
voluntary deed. This transfer was not in fact effected before Thomas Hudson died, because the
trustees of the marriage settlement had not been duly notified of the transfer. The issue in the
case was whether the shares were subject to probate tax as being part of his estate, or whether
they formed part of the trust property under the deed.22
Sir William Page Wood VC relied on a distinction drawn in the earlier case of Dillon v
Coppin,23
to the effect that:
Stock being in the name of the donor himself, and there being no declaration of trust but
a mere assignment, which would not pass the stock at all (…) the Court (…) cannot call
upon the donor to transfer the stock or complete the gift. But in the case of an
assignment of the equitable interest in stock standing in the name of trustees, the deed of
assignment passes the whole equitable interest of the donor, and the donee may go with
that deed to the trustees, and say, transfer to me the interest in this sum of stock (…).24
19
Ibid, 198.
20
Ibid.
21
Donaldson v Donaldson (1854) Kay 711, at 717-18 takes Kekewich to be the case from which the
relevant principle is derived and the case to be decided accordingly.
22
At its bare bones the case bears striking resemblance to the modern Re Rose, where the settlor
had died before shares had been registered in the name of the recipient and the court was asked
whether the settlor’s estate was to be assessed for estate duty.
23
Dillon v Coppin (1839) 4 My & Cr 647; 69 ER 303.
24
Donaldson v Donaldson (1854) Kay 711, 718.

8. As the case concerned an assignment of an existing equitable interest, as opposed to an
assignment of legal title voluntarily and without consideration, the relevant question became
whether an equitable assignment without notice to the trustees was effective and enforceable.25
The Vice Chancellor answered that it was.
In so doing, Sir William Page Wood VC reasoned that a gift is complete when no further
action is required to be done by the donor or the donee, and the assignment had completely
passed the interest of the donor. The fact that no notice had been given to the trustees only
meant that the trustees could have transferred the property to the original beneficiary and there
would not have been any remedy against them, but it was within the new beneficiaries’ power to
give notice at any point to make their title complete. There was no need to come to court and
ask for the transfer to be made effective, unless the trust property was transferred to someone
else.26
The interest was therefore not with the settlor at the time of his decease, and probate tax
was not due.
As between the donor and donee the transfer had been completely effected, because no
further act was required on the donor to effect it. Put another way, the donee had obtained a
power to bind the trustees to the new settlement, but notice had to be served before this could
have any third party effects.
The fact that no specific form is required to effect an equitable assignment does not
mean that the requirements of any chosen form do not have to be fulfilled. This was decided in
the case of In Re McArdle.27
In the case the claimant made improvements to a bungalow that was
part of the trust property, and was afterwards promised payment by the beneficiaries. They later
25
ibid, 719.
26
Ibid.
27
In Re McArdle [1951] Ch 669.

9. refused to pay. The High Court initially held that the contract was a valid equitable assignment
which does not require consideration, and the claimant had been transferred a share of the
equitable interest equal to the costs of the improvements.
The Court of Appeal (Evershed MR, Jenkins LJ and Hodson LJ) disagreed. The
document was clearly drafted as a contract,28
and was thus subject to all the requirements of
contract including consideration. If an equitable assignment is intended to take effect without
consideration, it must take effect as a gift and the donor must have done ‘everything in his power
to do to make it complete and perfect’.29
Jenkins LJ accepted that no consideration is needed for
an equitable assignment, but ‘a voluntary equitable assignment, to be valid, must be in all
respects complete and perfect so that the assignee is entitled to demand payment from the
trustee or holder of the fund and the trustee is bound to make payment to the assignee, with no
further act on the part of the assignor remaining to be done to perfect the assignee’s title’.30
From this judgment it is crystal clear that Evershed MR and Jenkins LJ were fully aware
of how the relevant law operated—that there is a distinction between intended gifts (of legal
title) and transfers of existing equitable interests, and the principle that the transferor must have
done everything in his power to effect the transfer refers to the latter. These principles were
therefore the legal context in which Re Rose was decided, and clearly survived Re Rose perfectly
intact. This is clear from the case of In Re Wale31
some years after Rose.
28
Ibid, 674.
29
Ibid, 676. It is notable that Re Rose [1952] Ch 499 would be decided only a year later, and both
cases included Evershed MR and Jenkins LJ giving lead judgments in very similar terms as here.
30
Ibid, 677.
31
In Re Wale [1956] 1 WLR 1346.

10. In Wale the settlor had forgotten the trust settlement she had created in favour of her
daughter, and failed to transfer her interest in the trust property to the trustees (her sons). The
settlor had two classes of investment assets: ‘A’, which she owned outright, and ‘B’, which she
was entitled to under her late husband’s will, of which she and the two sons were (forgetful)
trustees. In her will she left her estate in equal shares to her children. After her death, the family
solicitor produced the original settlement, which the sons had forgotten and the daughter had
never before seen. The sons asked the court for direction.
The sons relied on the Milroy v Lord32
and Richards v Delbridge33
line to argue that the court
could not construe an imperfect gift as a trust. The settlement was, in their view, to be construed
as taking effect as a declaration of trust with the pre-requisite that a transfer of the legal title to
the trustees must be perfected before the trust takes effect (this element was absent in Milroy,
leading to the trust being ineffectual). After initially conceding the attractiveness of this
argument,34
Upjohn J held that the settlor had in fact validly assigned her equitable interest in the
‘B’ investments to the daughter. This was in large part due to the fact that the sons already held
the legal title to these assets as trustees. Upjohn J stated that the assignment need not take any
specific form,35
and a voluntary direction by the beneficiary to the trustees to hold an interest on
trust for another person is a valid assignment of an equitable interest. As to the ‘A’ shares, in
which the trustees never held legal title and such title was never transferred to them, the court
was bound by Milroy.36
32
Milroy v Lord (1862) De GF & J 264.
33
Richards v Delbridge (1874) LR 1 Eq 11.
34
In Re Wale [1956] 1 WLR 1346, 1351.
35
Ibid, Upjohn J at 1350.
36
Ibid, 1956. The case as regards the ‘B’ shares is therefore similar to the more recent T Choithram
International SA v Pagarani [2001] 2 All ER 492, where the deathbed statements of a wealthy
businessman that he wanted to transfer all his wealth to his charitable foundation, of which he

11. The Source of the Confusion
The issue that the transfer of legal title cannot take effect in equity was therefore well-
established before Milroy v Lord,37
where Turner LJ stated the famous phrase that ‘there is no
equity in this Court to perfect an imperfect gift’38
. That is, if a gift is intended and that gift fails,
the court cannot convert it to a trust.39
A settlor ‘must have done everything which, according to
the nature of the property comprised in the settlement, was necessary to be done in order to
transfer the property and render the settlement binding upon him’,40
in this case meaning the
legal transfer of the shares of the Bank of Louisiana should have been registered in the books of
the bank. Milroy could in fact be entirely disposed of by referring to Dillon v Coppin,41
where East
India stock that could not be transferred in law except by an entry to the books of the East India
Company did not form the subject matter of a trust – the issue is exactly the same. Where no
trust is in existence and legal title has not been validly transferred, the court will not imply a trust.
Milroy includes a subtle change in wording of the well-established principle that a transfer
of an existing equitable title (compare ‘according to the nature of the property comprised in the
settlement’) will take effect once the donor has done everything in his power to effect the
transfer, expanding this notion to all transfers of all kinds of interests. Transferring an equitable
was one trustee, managed to effect the transfer because he was already a trustee and therefore
would have had to transfer legal title to himself.
37
Milroy v Lord (1862) De GF & J 264.
38
Ibid, 274.
39
This was strongly taken up by Sir George Jessel MR in Richards v Delbridge (1874) LR 1 Eq 11,
14.
40
Milroy v Lord (1862) De GF & J 264, 274.
41
Dillon v Coppin (1839) 4 My & Cr 647; 69 ER 303.

12. title or even a debt in this way is in line with the operation of notice point above, but it is
doubtful in the case of a transfer of a generic legal title which does not involve an existing
obligation owed by anyone to the titleholder.
Knowing this context, we now have the ingredients to analyse Re Rose more satisfactorily.
In Re Rose,42
the donor transferred shares in to his wife in two batches: 10,000 absolutely and a
further 10,000 to hold on trust (together with the company’s secretary) for their son. These
transfers followed the company’s articles, meaning they were effective only when consent to
each transfer was given by the company. The transfers were stamped, and some months later
duly registered by the company. The issue in the case was not whether a transfer had been made,
but when; if the transfers were made before 10 April 1943 (before the company had registered
them), there would be no tax liability on them. The issue is therefore very similar to that of
Donaldson above,43
with the notable exception that the intended transfer was not of equitable
interest but full legal title.
Evershed MR found that the transaction was ‘obviously intended’ to operate immediately
as a transfer, as opposed to creating a trust.44
In light of this his Lordship described the idea as
‘startling’ that if a dividend were declared, those dividends could have been retained by the
transferor,45
and also held that the transferor could not have obtained an injunction against the
transfer being registered once he had made the deed.46
In other words, the transfer was binding
as between the transferor and transferee, just as in Donaldson above.
42
Re Rose [1952] Ch 499.
43
Donaldson v Donaldson (1854) Kay 711
44
Re Rose [1952] Ch 499, 507.
45
Ibid.
46
ibid, 508.

13. Jenkins LJ stated the now well-known ‘rule in Re Rose’, that the transferor ‘had done all in
his power to divest himself of and to transfer to the transferees the whole of his right, title and
interest, legal and equitable, in the shares in question.’47
The question the Jenkins LJ asked
himself was ‘when was the disposition made (emphasis added)’,48
as was the exact wording in the
relevant statute. He answered that it must have been made when the donor had done all in his
power to effect it, and not when the shares were registered.49
This makes sense as the donor had
nothing to do with the registration and therefore could not have ‘made’ a disposition then—
knowing the context, this (only) appears to be an argument by analogy to transfers of equitable
interests, in which the transfer is ‘made’ when everything is done by the transferor, but rendered
effective and enforceable against the trustee (and other assignees) by notice. It would have
perhaps been better for the law of assignments had the matter been left there, as it could not
have been the intention of the donor to create anything other than a gift.
The end result in Re Rose is unobjectionable on the basis of statutory interpretation. The
finding that having done all in his power meant that the donor had effected a transfer of the
whole of his right, title and interest was wholly unnecessary, given that the question was only
when a disposition had been ‘made’ by the donor, for the purposes of estate duty under s. 38 of
the Customs and Inland Revenue Act 1881. The relevant issue was never when the whole of the
transfer was effected. However, as the case has been interpreted, the rule in Re Rose allows for
assignments of equitable interests where the transfer of a legal title is intended,50
in flat
47
Ibid, 515.
48
Ibid.
49
ibid, 516.
50
e.g. Mascall v Mascall (1985) 50 P & CR 119, 125 per Lawton LJ and 126 per Browne-Wilkinson
LJ, describing in essence that equitable interest was validly transferred in Re Rose and this gave
rise to an enforceable trust.

14. contradiction to well-settled principles that the rule only applies where a beneficiary seeks to
transfer an existing equitable interest.
How to Rationalise the Rule in Re Rose
Given that practice has followed Re Rose and the notion that a transfer of an equitable
interest can result from an intended legal transfer, it is obviously too late to attempt to roll back
the case by insisting that it is bound to its own facts and to the narrow issue of interpreting the
relevant statute. But we also know that it cannot apply in every case of an intended legal transfer –
that notion seriously militates against fundamentals of trust law, not least the idea that a failed
gift does not turn into a trust because the intention element is different. So what are we to make
of it?
In light of the above exposition of the developmental roots of the rule, Re Rose should be
read as expanding the notion that an equitable assignment can be binding as between a transferor
and transferee before a third party who owes duties to the transferor is made bound by the
transfer. That is the original context of the principle – that a beneficiary can affect an assignment
of his existing equitable interest and be bound by the assignment, without having to notify the
trustee to make the trustee bound to act for the benefit of the new beneficiary.
As such the fact scenario of Re Rose is not dissimilar; the transfer required third party
notification (and assent) for the company to be bound to treat the transferee as a shareholder
and therefore to be bound to act in the best interests of that shareholder, but (as Evershed MR
found) was enforceable against the transferee from the moment she had done everything in her
power to effect it. The analogy of Jenkins LJ is not out of place, though not entirely explicit – a
trustee and a company owe similar duties to their beneficiary and shareholder respectively, so a
transfer of the interest which accompanies those duties can be made in the same way. Both
Jenkins LJ and Evershed MR were fully aware of the relevant doctrines as is evident from

15. McArdle just a year earlier, and so could not have been making a judgment in ignorance of the
law.
The essential benefit of the developmental analysis above is that third party notice and
assent ceases to be the Achilles’ heel of Re Rose type cases, and actually becomes part and parcel
of the operation of the rule. In assignments of beneficial interests, it is naturally the case that the
fully effected and more than individually enforceable transfer requires notice to a third party—
the trustee—as that is what makes the transfer enforceable against the trustee and against other
transferees.51
But the notice is not required for the transfer to become binding as between the
transferor and transferee. As in the case of Re Rose, the third party is entitled to refuse but the
transfer can still be binding as between the parties in privity. This applies to a trustee,52
and can
also apply by analogy to companies.
This reinterpretation could then be a defensible way to distinguish Re Fry,53
as there the
relevant third party was the Treasury who had nothing to do with the property and no
relationship analogous to trustee and beneficiary between themselves and the transferor. It could
also be a defensible explanation of Lord Wilberforce’s seemingly circular judgment in Vandervell v
IRC.54
The case, after all, involved the transfer of shares to the Royal College of Surgeons,
susceptible to the same analogy as in Re Rose itself. On this reading, Re Rose is still a significant
expansion foundational trust law principles into the context of attempted assignments of legal
interests in shares where no equitable interest exists. But it should not apply whenever there is
any kind of transfer of any kind of interest, and the separation of the law of gifts and the law of
trusts is maintained.
51
Dearle v Hall; Loveridge v Cooper (1828) 3 Russ 1; 38 ER 475.
52
See n 17 above.
53
Re Fry [1946] Ch 312
54
Vandervell v IRC [1967] 2 AC 291, 330.

16. Perhaps most controversially, this principle could now apply to land, the legal title to
which depends on an entry to the land register. This is because of Mascall v Mascall, where the
Court of Appeal applied Rose in the context of a freehold property.55
This case is an outlier,56
but
not entirely unsupported. So far as a database search can show, it has only truly been applied
once, and even then in dubious circumstances. In the case of Chogan v Saggar, the first instance
judge found the defendant to have an equitable interest in freehold land on the basis of Mascall,57
and though the case was overturned in part by the Court of Appeal,58
the court upheld the
conclusion of the first instance judgment which was dependent on the Mascall point (though
without any express discussion).
Analogies of analogies tend to become tortuous. That is also the case with Re Rose and
freehold interests in land. The applicability of the view of Re Rose advocated in this paper, that it
only applies in contexts that are analogous to assignment of existing equitable interests under a
trust, transfers of freehold land could be seen as an analogy to the cases of company shares but
only with significant eye strain. If the new transferee has been transferred all that is necessary to
change the entry at the land register, the situation does not seem too difficult. The land register is
like the share register of a company, and otherwise the analogy is reasonably clear.
But bearing in mind that there is no third party who owes duties of acting in the best
interest of the freehold titleholder and whose duties could be affected by notice, it would seem
better to abandon this line of cases. Mascall has only been followed in the one case of Chogan v
Saggar without any discussion of the point in the Court of Appeal or even mention of the case.
55
Mascall v Mascall (1985) 50 P & CR 119, 120.
56
E.g. in Waghorn v Waghorn (Unreported, 14 June 2013) Ch D, the High Court declined to
follow Mascall and Rose, though of course did not attempt to overrule them. Nearly all other
cases are share transfers, including Pennington v Waine [2002] EWCA Civ 227 and Zeital v Kaye
[2010] EWCA Civ 159.
57
Chogan v Saggar [1992] BCC 750, 754-55.
58
Chogan v Saggar [1994] BCC 134.

17. Though the Court of Appeal authority of Mascall itself remains, there does not appear to be any
justification of that case that would leave trust law fundamentals intact.
Conclusion
This paper has argued that the so-called ‘rule in Re Rose’ has long pedigree. It is the
continuation of centuries of authorities whereby a beneficiary of a trust can make a transfer of an
equitable interest enforceable as between himself and new beneficiary by doing everything in his
power to effect it. The last step, notice to the trustee, to make the transfer more broadly
enforceable could be done either by the transferor or transferee, and certainly need not be done
by the original beneficiary. The bench in Re Rose was fully aware of the law, having decided on a
case expressly on the basis of it just a year before Rose. The principles also survived Rose without
so much as a scratch, as was clear from the decision of Upjohn J in Wale a few years after Rose.
With this context in mind, the rule in Re Rose must be read as a case of statutory
interpretation, where the transfer was made (within the wording of the relevant statute) when
everything was done that was within the power of the transferor to do. This was an analogy to
the transfers of equitable interests that are made between the new and old beneficiaries, and
rendered fully effective and enforceable by notice to the trustee by either.
The case has, however, entered into the trust law canon, and cannot be confined to its
own facts. It is therefore a matter of positive authority that the case represents an expansion of
the doctrines regarding equitable assignments into attempted transfers of legal title. But the
expansion cannot extend to making every attempted transfer of every legal interest enforceable
in equity where the transferor has done everything in his power to effect it. This is inconsistent
with trust law fundamentals, including the fact that the intention to create a trust is an intention
to bind the transferee to the obligations of a trustee, and the intention to give is without strings
attached.

18. With this dilemma in mind, it is suggested that the rule in Re Rose only applies to cases
that are analogous to a trustee/beneficiary relationship. A transfer of shares fits within this
analogy, because a company owes duties to its shareholders that are similar to those of a trustee
to his beneficiaries, and notice to the company of a share transfer therefore effects a transfer of
those duties. But the rule should not apply in second order analogies, like freehold land.
In a common law system, sufficient belief in the Emperor’s new clothes makes them real.
This article has argued that the Emperor might have a new sense of fashion, but that (most of)
the clothes are in fact there if we look carefully. We would do well, however, not to strain our
eyes too hard when it comes to Mascall, or we might rapidly have to start redefining the basic
concept of ‘clothes’ to cover our backsides.