In Gissing v. Gissing [1971] A.C. 886 at p.905D, Lord Diplock's omission of any reference to constructive trusts in connexion with the parties' "common intention" was surely not accidental, but significant. For the distinction in Jowitt's Dictionary of English Law (2nd edn, London 1977, by Burke) of constructive from implied trusts, by virtue of the latter's "reference to the presumable intention of the parties" and without mentioning resulting trusts, is understandable. Resulting trusts are but a species of implied trusts and as such themselves make "reference to the presumable intention of the parties". In other words and in my respectful submission, the distinction purportedly drawn by Megarry J. in Re Vandervell's Trusts (No.2) [1974] Ch. 269 at p.294 between a "presumed resulting trust" and an "automatic resulting trust", on the basis that the latter "does not depend on any intentions or presumptions, but is the automatic consequence of [the grantor's] failure to dispose of what is vested in him", does not exist. His Lordship's error is exposed by the cases dealing with unlimited gifts of rents or income. On the face of it, such a gift does not dispose of the capital - Hodson v. Ball (1845) 14 Sim. 558 at p.571. Therefore, according to his Lordship: if the gift be made inter vivos, without the intervention of a trust, the capital would remain vested in the donor; or, if the gift be testamentary or otherwise held on trust, the legal personal representative or other trustee would automatically hold the capital on a resulting trust for whoever is entitled to the testator's residuary estate or for the donor himself. However, this ignores the presumption that "if a man seised of lands in fee by his deed granteth to another the profit of those lands, to have and to hold to him and his heires, .... the whole land itselfe doth passe; for what is the land but the profits thereof ... " - Co. Litt. 4b. The same presumption applies to devises - Kerry v. Derrick (1602) Cro. Jac. 104 - and to legacies - Page v. Leapingwell (1812) 18 Ves. 463. The presumption is as to the grantor's intention and so can be rebutted, e.g., in the case of a gift to charity - Re Levy [1960] Ch. 346.

In the great majority of cases, a failure by a settlor or a testator to dispose of the whole of his beneficial interest will naturally give rise to a presumption of a resulting trust in favour of himself or his estate. If S conveys Blackacre to T on trust for B for life, T as an honest and reasonable man knows that he is not intended to receive the remainder and, therefore, has presumably agreed to hold it on trust for S. Yet in Megarry J.'s terms, a "presumed resulting trust" occurs only where a disposition is made without consideration, without any indication of a trust for a third party and without any presumption of advancement. Here, too, undoubtedly and as his Lordship apparently implies, the presumption of a resulting trust depends upon the parties' presumed intentions. If A in such circumstances conveys Blackacre to C, C has no reason to believe that he is receiving a gift and so no reason to believe that he is to hold the land beneficially. Accordingly, as an honest and reasonable man, he has presumably agreed to hold it on trust for A. On the other hand, if C be A's son, A's conveyance is ambiguous; for fathers often advance their children. Accordingly, because verba chartarum fortius accipiuntur contra proferentem (Co. Litt. 36a), C as an honest and reasonable man is entitled to presume that A has made him a gift.