TITLE XII. TRUST. CHAPTER II. Of the Rules by which Trust Estates of Freehold are governed. 1. A Trust is equivalent to the legal Ownership. 5. Trusts are alienable. 8. Devisable and descendible. 10. And also limited for life. 25. Subject to Forfeiture for 27. But not for Felony. 35. Merge in the Legal Estate. 40. Where a Reconveyance will WE SECTION 1. But E have seen that trust estates owe their origin A Trust is to the strict construction given by the conrts equivalent to the legal of law to the statute of uses; in consequence of which Ownership. the Court of Chancery interposed its authority. in the exercise of this jurisdiction, the inconveniences with which uses were attended have been avoided; for although the court first laid it down that a trust, being in fact a use not executed by the statute, ought to be regulated by the rules which had been established respecting uses, before they were changed into legal estates; yet this was, in many instances, departed 1 Ves. 357. from; it being found much more convenient to consider a trust estate as equivalent to the legal ownership; and to regulate it in the same manner as the legal estate. Burgess v. infra. 2. Lord Mansfield has laid it down that, in the consideration of a court' of equity, the cestui que trust is actually and absolutely seised of the freehold. That the legal consequences of an actual seisin shall ensue it being a maxim that equity follows the law, Watts v.Ball, which was a safe, as well as a fixed principle; as it made the substantial rules of property certain and 1 Bro R. 271. uniform. And Lord Thurlow has said that, in many acts of parliament, an equitable estate was considered the same as if it were a legal estate. That the words, seised in law or in equity, in the qualification act, showed that the word seised was applicable to both. And that the word seisin extended to being seised in equity. Tit. 11. c. 2. § 8. infra, c. 4. 1 Black R. 155. Tit. 30. Trusts are alienable. 3. A trust estate still however retains some few qualities of a use. Thus confidence in the person is necessary to the existence of a trust: so that even at this day if a trustee sells the land, for á valuable consideration, to a person who has no notice of the trust, the purchaser will not be compelled, in Chancery, to execute it. 4. As for privity of estate, it was formerly held to be as necessary, as confidence in the person. But this seems to be now altered; for Lord Mansfield has said, "that part of the old law which did not allow any relief to be given for or against any estates in the post, does not now bind, by its authority, in the case of trusts." It seems however to be understood, that a lord by escheat is not bound to execute a trust. 5. Any disposition of a trust estate by the cestui que trust was formerly binding on the trustees, in a court of equity. But it is enacted by the statute of frauds, § 9, "that all grants and assignments of any trust or confidence shall be in writing, signed by the party granting or assigning the same, or else shall be utterly void and of none effect." 6. Although by the statute 1 Rich. III. c. 1. the Tit. 11. c. 2. conveyance of a person, having only a use, was made § 42. good against the feoffees to use; yet it does not appear to have been ever held that a cestui que trust 8 Term R. could convey any thing more than a trust; and in all 494. those cases where there has been a conveyance from a cestui que trust, the legal estate has been considered as still remaining in the trustee. 7. It was laid down by Lord Nottingham in 2 Cha. Ca. 33 Cha. II. as a general rule, that any legal convey- 78. ance or assurance, by a cestui que trust, shall have the same effect and operation upon a trust, as it should have had upon the estate in law, in case the trustees had executed their trust." Tit 38. c. 3. 8. Trust estates are also devisable, as will be shown Devisable and hereafter: where they are not devised, they will de- Decendible. scend to the heir of the person who was last entitled to them, in the same manner as legal estates. Tit. 29. c. 3. May be entailed. 9. It was formerly held, that a trust estate, being merely the creature of a court of equity, was not within the statute De Donis: therefore, that where a 256. trust estate was limited to a person and the heirs of his body, he might, after issue had, bar such issue by Bowater a feoffment, bargain and sale, or will: this is now v. Ellis, altered, and it is fully settled that a trust estate may be entailed in the same manner as a legal one; and Kirkhain, that such entail can only be barred by fine or recovery; Amb. 518. which will have the same effect on a trust estate tail, Tit. 35 & 36. as on a legal one. 2 Vern. 344. v. Smith, 10. A trust estate may also be limited to a person And also for life but in such case no fine, or other assurance, by the cestui que trust for life, will operate as a forfeiture of his estate. limited for Life. Subject to Watts v. 108. 1 3 P. Wms. 234. Cashborne v. Inglis, Tit. 15. c. 3. Hearle v. 11. Although no person could be tenant by the curtesy of a use, before the statute 27 Henry VIII, because the wife could have no seisin of a use, yet it has been determined by the Court of Chancery, that a husband may now be tenant by the curtesy of a trust estate of freehold. 12. A person having two daughters, devised his lands to trustees and their heirs, in trust to pay his debts, and to convey the surplus to his daughters equally. The eldest daughter brought her bill for a partition; and the only question was, whether the husband of the youngest daughter should have an estate for life conveyed to him, as tenant by the curtesy. The husband, in his answer, had sworn that he married the younger daughter upon a presumption that she was seised in fee of a legal estate in the moiety that at the time of the marriage she was in the receipt of the profits of such moiety; and it was admitted that this trust was not discovered till after the death of the younger daughter. Lord Cowper decreed that trust estates ought to be governed by the same rules, and were within the same reason, as legal estates. That as the husband should have been tenant by the curtesy, had it been a legal estate, so should he be of a trust estate. And if there were not the same rules of property in all courts, all things would be as it were at sea; and under the greatest uncertainty. 13. Where an estate is vested in trustees, for the sole and separate use of a married woman, her husband will not be entitled to curtesy. For in that case it is the evident intention of the parties to exclude the husband from any interest in the estate. 14. Lands were devised to trustees and their heirs, Greenbank, in trust to apply the rents and profits to the sole and 3 Atk. 695. separate use of the testator's daughter, Mrs. Wins- 1 Ves. 298. more, during her life, and to permit and suffer her to dispose of the lands to such persons as she should appoint. Her husband claimed to be tenant by the curtesy, because the inheritance descended to Tit. 32. c. 13. Mrs. W. until appointment; and therefore she had a trust estate in fee. Lord Hardwicke said that Mr. Winsmore could not be considered as tenant by the curtesy. Under the will, the rents and profits were to be applied to the sole and separate use of Mrs. W. with power to dispose of the land. What was the effect of this? The whole legal estate of inheritance was in the trustees. However, it was said, a husband might be tenant by the curtesy of a trust. But consider what was necessary to make a tenant by the curtesy; the wife must have the inheritance, and there must be likewise a seisin in deed in the wife, during coverture. It was true she had the inheritance, because it descended, till the execution of the power. But then the father, whose estate it was, had made the daughter a feme sole, and had given the profits to her separate use; therefore what seisin could the husband have during the coverture: he could neither come at the possession, nor the profits. Was there any equitable seisin of the husband, none at all; and to admit there was, would be directly contrary to the father's intention; therefore neither in law or equity was the husband tenant by the curtesy.* In the case of Roberts v. Dixwell, 1 Atk. 607. determined ten years before this one, Lord Hardwicke appears to have held a different opinion from that which he laid down here. But it may be fairly presumed that the authority of the last case would be preferred. |