the Estate, either wholly or partially, (as by a Mortgage) (c) to a purchaser for a valuable consideration, (a voluntary Conveyance would have a different effect) (d); but such an abuse of Trust can hardly occur, unless where a Trustee is in possession of the Trust Estate and of the Title Deeds, and even then very rarely. But a Judgment, or a Commission of Bankruptcy against him (e), will not in Equity affect the Estate; nor can his Wife claim Dower, or Free-bench out of it (f); nor can the Husband of a Female Trustee be entitled as Tenant by the Curtesy (g). It has been doubted whether a Trustee will by Treason or Felony forfeit the Trust Estate; and it has been questioned whether, supposing a Forfeiture, the Lord who claims by Escheat, or the Crown claiming by that Title is bound by the Trust (h). (e) Finch v. Earl of Winchelsea, 1 P. Wms. 278. Bennett v Davis, 2 P. Wms. 318. 3 P. Wms. 187. note A. quot. 1 Sand. on Uses, 279, 288; and see Medley v. Martin, Finch, 63. (f) Hinton v. Hinton, 2 Ves. 634, 638. Noel v. Jevon, 2 Freem. 43. Bevant v. Pope, 2 Freem. 71, quot. 1 Sand. on Uses, 279. (g) Casborn v. Inglis, 1 Atk. 603. S. C. 2 Eq. Abr. 728. (h) In Comyn's Digest, Tit. Forfeiture, B. 1, it is said the Lands are not forfeited; but in Wike's Case, Lane, 54. Jenkins 190. Cas. 92. Hard. 466. Brooke, Feoffment al. Uses, pl31. Vin. Abr. Uses, pl. 4, in note, quoted 2 Fonbl. Treat. Eq. 168, in the notes, it seems to have been taken for granted; and the only question was, whether the Crown was bound by the Trust, which was de cided in the negative; but as to that see Reeves v. AttorneyGeneral, 2 Atk. 223. AttorneyGeneral and Du Plessis, 2 Ves. 286. Gearyv. Bearcroft, Carter, 67. Eales v. England, Prec. Chan, 200. Eq. br. 384, in note. Burgess and Wheate, i Bl. Rep. 123. Middleton v. Spicer, 1 Bro. C. C. 201. Pawlett v. Attorney-General, Hard.469; and 1 Ves. 446. By a very recent Statute (i), however, it is provided, that where Trust Property escheats to the Crown, His Majesty may direct the execution of the Trusts, and may make Grants to Trustees for that purpose, or may make Grants to any persons for the purpose of restoring the same to any of the family of the Persons whose Estates the same had been, or of rewarding any Persons making discovery of the Escheat: but it does not determine in what cases Lands escheat; for escheat, it must be remembered, may be ob defectum tenentis, as well as pro delicto tenentis. A Trustee may devise the Trust Estate, but the Devisee takes the Estate subject to the original Trust (k). But though, even under general words(1), the Trust Estate may be devised, yet wherever the Trusts under which the Trustee's Property is de-vised are inconsistent with the supposition that the Trust Estate was meant to be included in the Devise, it will be presumed it was not intended to pass, and will not pass (m); as, if a man should generally devise his Lands after payment of his Debts and Legacies, his Trust Estates would not pass, for it is clear he could only mean Lands which he could subject to the payment of his Debts (n). It is observable, that by whatever means, whether by Conveyance or otherwise, a Person obtains the absolute Ownership at Law of the Estate, though he 42. (?) 39, 40 Geo. 3. c. 88. s. (k) Lord Braybroke v. Inskipp, 8 Ves. 417. Marlow and Smith, 2 P. Wms. 200. (1) Marlow v. Smith, 1 P. Wms. 97. 1 Atk. 605, in note. v. Inskipp, 8 Ves. 435. Reade v. Reade, 8 T. R. 118. which cases overrule Attorney-General v. Buller, 5 Ves 3.39. and what is said 1 Bro. C. C. 198. (n) Compton against Comp ton, 9 East, 273; and see the acquired that by an equitable Title, and both either come together, or are afterwards united in him, the legal Estate will prevail, and the equitable Estate is totally gone for the purpose of being acted upon in a Court of Equity (o). If a legal and equitable Estate descend in Fee Simple to the same Person, the one from the paternal, the other from the maternal, line, there is an end of the Trust, and he may dispose of the whole as he pleases, for a man cannot be a Trustee for himself; nor will the Trust and legal Estate open on his death, and be severed for different heirs, but having once joined, they go according to the legal Estate (p). It may also be remarked, that where Property is bequeathed in Trust, but no Trustee is appointed, the Court in the case of Real Estate considers the Heir at Law as a Trustee; and in regard to Personal Estate considers the personal representative as a Trustee, and will, itself, see to the execution of the Trust (9). Where an Estate, for instance, is devised in Trust to a Body Corporate, which by the Statute of Mortmain cannot take, the Uses are not defeated by this deficiency of the Trustees, but attach upon the Estate the Law raises, and the Heir at Law becomes a Trustee to the Uses of the Will (r). So if a Power be given by Will for the Devisees for Life when in Possession to cut down Timber, as four Trustees, or the Survivors or Survivor of them, should assign, (o) Selby v. Alston, 3 Ves. 342. (p) Dougl. 771. (9) Vid. White v. White, 1 Bro. C. C. 12. Pit v. Pelham, allow of or direct, and all the four Trustees die, the Court will execute the Trust by referring it to the Master, to see what Timber was fit to be cut down from time to time (s). So where a Power of selling Lands is given to two Executors, it has been much questioned, whether if one dies the surviving Executor can execute the Power; or whether, if both die, the Power of selling passes to their Executors or Administrators; but though in either of these cases the Power becomes, in strictness of Law, extinct, a Court of Equity will consider the Person in whom the Land becomes vested as a Trustee, and compel the performance of the Trust. This is a consequence of the general Rule before adverted to, that a Trust shall never fail of execution for want of a Trustee; and that if one is wanting a Court of Equity will executę the Trust (t). Where Trustees refuse to act the Trust devolves upon the Court (u). Having made these few brief observations upon the general nature of Trusts, and limited the bounds of our Inquiry, we may proceed to consider, 1. Express Trusts created by Deed. THE Conveniencies and necessities of Mankind daily give rise to a vast variety of express Trusts created by Deed; nor is it here pretended to enumerate all of them, but only such as are of the most importance, (s) Hewitt v. Hewitt, 2 Eden's Rep. 332. (t) See Co. Litt. 113", note 2, and the Cases there cited. Mich. 9 Geo. 2. 1735. S. C. 4 Vin. Abr. 485; but differing in some particulars; and see S. C. quoted 2 vol. Fonbl. Trea. Eq. 216. Lewis v. Lewis, 1 Cox, and in common use:such as 1, Trusts created in Marriage Settlements of real or personal Property2, In Conveyances to Purchasers-3, In Conveyances by way of Mortgage, or otherwise, for the payment of Debts; and 4, In Assignments of Choses in Action. 1. Settlements may be made either of Real or Personal Property, or both; and, subject to the rules by which the boundaries of Limitations and Accumulations of Personal Property are fixed (x), a Settlement may be made according to the pleasure of the Settler. Personal Estate may by a careful Settlement be rendered unalienable as long as Real Estate. Terms for Years, or Personal Chattels, may be limited or devised in strict Settlement to one for Life, and afterwards to Sons and Daughters in Tail (y), and be rendered transmissible as Heir Looms are; but such Property cannot be made unalienable longer than Lives in being, and twenty-one years after, or may (x) See 39 and 40 Geo. 3. c. 98, an Act, wrongly attributed to Lord Eldon; see 11 Ves. 148. Previous to this Act of Parliament a person might, by executory Devise, dispose of his Property, and the accumulation of Rents and Profits for a Life or Lives in being, and twenty-one years, and a small portion of time, the period of gestation. This was one of the points determined in the great Case of Thelluson v. Woodford, 4 period of accumulation is limited. A Trust by Will, for accumulation beyond the time allowed by the Statute, is void only for the excess. Where, therefore, the accumulation was directed to be during a Life, it was held not to be void under that Statute, but to be good for twenty-one years, if the Life so long continued, and only void for the excess, that is to say, for so long as the Life continued after that period. Griffiths v. Vere, 9 Ves. 131; and see Longdon v. Simpson, 12 Ves. 295. (y) Vid. Har. Co. Lit. 18. n. 7. 20. n. 5. |