Ebrand v. 1 P. Wms. Fearn's Op. 327. should this prevail against the creditors? No certainly. For the defendant's father having the profits for life, and the son only a remainder, the estate would have been liable. A material consideration for the plaintiffs, that the father might have other reason was for the purchasing in joint tenancy, namely, to prevent dower on the estate, and other charges. Then consider how it stood in respect to the creditor. ́A father here was in possession of the whole estate, and must necessarily appear to be the visible owner of it, and the creditor would have had a right, by virtue of an elegit, to have laid hold of a moiety; so that it differed extremely from all the other cases. Now it was very proper that the Court of Chancery should let itself loose, as far as possible, in order to relieve a creditor, and ought to be governed by particular circumstances of cases: and what could be more favourable to the plaintiff than that every foot of the estate was covered by these purchases; and unless the Court let him in upon these estates, the plaintiff had no possibility of being paid. Decreed, that a moiety of these purchases was liable to the debt. 78. A purchase by a grandfather in the name of his grandchild, provided the father be dead, in which case the grandchildren are in the immediate care of the grandfather, will be deemed an advancement for the grandchild, not a trust for the grandfather. 79. Where a person purchased a copyhold estate in the names, and for the lives, of his three natural children, who were admitted, and described as his daughters in the admission. Mr. Fearne inclined to the opinion that the daughters were entitled to the estate for their own use because every man is under a natural obligation to provide for such children. 80. It is said by Lord Nottingham, in the case of Exception, Grey v. Grey, that where a son is married in the life Children emancipated. Elliot v. of his father, and by him fully advanced, and eman- Finch R.341. cipated, there a purchase by the father, in the name Elliot, of his son, may be a trust for the father, as much as 2 Cha. Ca. if it had been in the name of a stranger; because in Pole v. Pole, that case all presumptions or obligations of advance- 1 Ves. 76. ment cease. But where the son is not advanced, or but advanced, or emancipated, in part, there is no room for any construction of a trust by implication; and without clear proofs to the contrary, it ought to be taken as an advancement of the son. 231. 271. 81. It is also said by Lord Chief Baron Gilbert, Lex prætoria, that if a father purchases in the name of his son, who is of full age, which by the English law is an emancipation out of the power of the father; there if the father takes the profits, or lets leases, or acts in any other manner as the owner of the estate, the son will be considered as a trustee for the father: because there is the same resulting trust, as if the son were a stranger, since it was purchased with the father's money. But if the father had let the son continue in possession, from the time of the purchase, without acting as owner, it would be an advancement. For the legal interest being in the son, and the father permitting him to act as owner of the estate, from the time of the purchase, did as much declare the trust for the advancement of the son, as if it had been declared in express words in the deed. 82. A wife cannot be a trustee for her husband. And also Therefore if a husband purchases lands in the name a Wife. of his wife, it shall be presumed in the first instance to be an advancement, and provision for the wife. 83. A married man purchased a walk in a chase, and took the patent to himself and his wife, and J. S. for their lives, and the life of the longest liver of them. Lord Chancellor Jefferies held that this should be presumed an advancement and provision for the wife; for she could not be a trustee for her husband. Decreed to the wife for life, and if J. S. should survive her, then to be a trust for the executors of the husband. And that a 84. A husband purchased a copyhold, to himself, his wife and daughter, and their heirs. It was held to be an advancement, and not a trust. mortgage by the husband should not bind the lands after his decease, in the lifetime of the wife and daughter. 85. There can be no resulting or implied trust between a lessor and lessee; because every lessee is a purchaser by his contract, and his covenants: which excludes all possibility of implying a trust for the lessor. Therefore, if in that case there be any trust at all, it must be declared in writing. 86. There may however be a resulting or implied trust between the assignor and assignee of a leasehold estate. 87. There formerly prevailed a distinction between trusts executed and executory. But it is said by Lord Hardwicke, in the case of Bagshaw v Spencer, that all trusts are in the notion of law executory, and to be executed by subpana, as the old books speak. At common law every use was a trust; then came the statute 27 Hen. VIII. which executed the legal estate to the use, and conjoined them together. The statute mentions trusts, as well as uses; and a trust executed is, in strictness, now a legal estate: therefore, in order to bring it into the jurisdiction of the Chancery, it must be executory; that is, the 88. A distinction has however been frequently admitted between a trust, created without any reference to a farther execution of it, by a conveyance directed to be made; and a trust whose effect is referred to another conveyance, directed to be made for its final execution. Of which an account will be given hereafter. 89. When trusts were first introduced, it was held that none but those who were capable of being seised to a use, could be trustees. This has been altered; and it is now settled, that the king may be a trustee; but the remedy against him is in the Court of Exchequer. Tit. 32. c. 19. Who may be 1 Ves. 453. 3 Comm. 428. Gen. 7 Bro. 90. A corporation may be a trustee, not only for Mayor of Coits own members, but also for third persons. And ventry v. Att. where a corporation is a trustee, the Court Chancery has the same jurisdiction over it, as over 46. a private person. of Parl Ca. 235. 2 Ves. Jun. 91. When once a trust is sufficiently created, it 1 Ves. 468. will fasten itself on the estate. Therefore if a con Bennet v. Sonley v. Clock Makers veyance or devise, by which a trust is created, becomes void by the incapacity or death of the grantee or devisee; still the Court of Chancery will decree the trust to be carried into execution. The relief is administered by considering the land, in whatever person vested, as bound by the trust; and compelling the heir, or other person having the legal estate, to perform it. 92. A person devised lands to his daughter, a married woman, for her separate use. It was held that the husband should be a trustee for his wife. For as the testator had a power to devise the premises to trustees for the separate use of his wife, the Court of Chancery, in compliance with his declared intention, would supply the want of them. 93. An estate was devised to the Clock Makers Company, upon certain trusts. Decreed, that though 1 Bro. R. 81. the devise was void, the Clock Makers Company not being capable of taking, yet that the trust was sufficiently created to fasten itself upon any estate the law might raise; therefore that the heir at law was a trustee for the uses of the will. Tit. 38. c. 2. |