10. The case of Tyrrel, above referred to, deserves a *fuller notice from the important part it had in establishing [*165] the system of trusts. It arose about twenty years after the

Now to give effect

And at her death, a draw the seisin and

act of 27 Hen. VIII. under these circumstances. Jane Tyrrel, for a valuable consideration paid by her son and heir, bargained and sold her land to him, habendum to her use during life, and after her death to the use of himself and the heirs of his body, and, for default of. such heirs, to the use of his own right heirs. As this conveyance was by bargain and sale, it could only take effect, in the first place, by raising a use in favor of the son to which the law united the mother's seisin, and executed the use in the son. to these several estates by the statute of uses, the operation must have been this when the seisin had reached the son, there was a use then waiting in J. T., and the seisin in the son must pass back again to J. T. to be executed in her for life. use was then in esse in the son, which would execute the use in him. But the court repudiated the idea of the seisin shifting about in this manner, for if when once executed it could pass to a third person, it might to fifty in succession, and besides, the statute speaks of being "seised of lands and tenements" to the use of another. In an opinion of three lines, they held that the use being executed in the son, the uses in the habendum, so far as they could be affected by the statute, were void, use ne poit estre engendre de use, &c. This became the settled law. But, as remarked by Mr. Sugden: "Perhaps, however, there is not another instance in the books in which the intention of an act of Parliament has been so little attended to." 1 And Mr. Watkins says: "About the time of passing the statute of uses, some wise man, in the plenitude of legal learning, declared there could not be an use upon an use. This very wise declaration, which must have surprised every one who was not sufficiently learned to have lost his common sense, was adopted, and still is adopted, and upon it (at least chiefly) has been built up the present system of uses and trusts." 2 With this explanation, the reader will be ready to *apply the lan-. [*166] guage of Lord Hardwicke in the case already cited: "By this means, a statute made upon great consideration, introduced in a

1 Gilb. Uses, Sugd. ed. 348.

2 Watk. Conv. Introd. xx.

solemn and pompous manner, by this strict construction, has had no other effect than to add, at most, three words to a conveyance." 1

4. Uses in favor of femes covert, when trusts.

5. Cases implying active trusts.

6. Trusts changing to executed uses.

7. Special trusts distinguished from powers.

8. Implied, resulting, and constructive trusts.

9. Trusts never implied where one is expressed.

10. Resulting trusts distinguished from constructive.

11. Instances of implied trusts.

12. Difference between resulting uses and resulting trusts.

12 a.

Classification of resulting trusts.

13. Instances of resulting trusts.

14. Upon conveyance to wife or child, no resulting trust.

15. When a trust results from consideration paid.

16.

Of parol evidence to rebut resulting trusts.

17. Of parol evidence to establish a resulting trust.

18. Constructive trusts in respect to estates wrongfully held.

19. Ground on which constructive trusts rest.

20, 21. Instances of constructive trusts.

22.

Where trusts may be raised without writing.

24. Statute of uses does not reach terms for years.

25. Executed and executory trusts defined.

26. How modern trusts have been built up.

27. Double character, legal and equitable in every trust.

28. The trust in equity answers to the land in law.

29. Same general rules as to ownership of legal and equitable estates.

30. Rule in Shelley's case applied in equity.

31. Equitable estates descend, &c., like legal estates.

32, 33. How far equitable estates are subject to debts.

1 Hopkins v. Hopkins, 1 Atk. 591. In Tyrrel's case the son became trustee of J. T. for life. 1 Prest. Abst. 142.

34. Trusts like legal estates as to duration, &c.

35. Same rule as to perpetuities in trusts and legal estates.
36. Statute of limitations applicable to trusts.

37. Length of possession by trustee no bar.

38. Constructive trusts exceptions to the last rule.

39. Trusts may be barred by adverse possession.
40, 41. Trusts not subject to rules growing out of tenure.

42. What in respect to trusts answers to seisin.

43. Estates of inheritance in trusts created without "heirs."

44. Trustee's estate measured by nature of the trust.

45. Rules applied by courts in determining the estate of a trustee.
When a vendor becomes trustee to his vendee.

46.

47. When equity gives to personalty the character of realty.

48. Contingent remainders of trusts, when not defeated.

49. Of dower and curtesy in trusts.

1. The first classification of Trusts is into general or simple, and special trusts.

2. A simple trust is one where property is vested in one upon trust for another, the nature of the trust not being expressed, but left to the construction of the law. The legal estate is merely vested in the trustee; the cestui que trust being, in equity, entitled to the rents and profits, has power to dispose of the lands and to call upon the trustee to execute the requisite conveyances.1 An instance of ' this class of trusts is a limitation to A and his heirs to the use of B and his heirs, to the use of or in trust for C and his heirs. B takes the legal estate, but becomes trustee for C. Among the trusts included under this class were those heretofore in use to preserve contingent remainders, which will be explained hereafter. It will be sufficient for the present to state, that, as the law stood, a contingent remainder required a precedent estate of freehold to support it, and if this, by any means, was destroyed, by forfeiture for instance, before the contingency happened upon which the remainder was to vest, the latter was defeated.2 To guard against a possibility of this kind, it was common to appoint *trustees, to whom a [*167] freehold estate was limited in remainder for the life of the precedent freehold tenant, to commence if and when his estate de

1 Lewin, Trusts, 2d ed. 23; Tud. Lead. Cas. 274; Wms. Real Prop. 135; 2 Flint. Real Prop. 786.

2 This is altered now by statute in several of the States, as well as in England. Wms. Real Prop. Rawle's ed. 233, and note; 2 Greenl. Cruise, Dig. 270, note.

termined during his life. So that there was always some one, tenant of the freehold, to sustain the contingent remainder. Thus a limitation was made to the use of A for life, remainder to the use of C and D and their heirs, during the life of A, remainder to the use of the unborn son of J. S. The legal estate thus limited to the trustees during the life of the tenant for life, is a good remainder vested in them, under which they will have such a right of entry in case of any forfeiture or tortious alienation by the tenant for life, as will support the contingent remainder, expectant on his decease.1

3. But it is often difficult to determine, in a given case, whether the estate limited is a legal or equitable one, as may be illustrated by the following adjudged cases. A testator devised unto and to the use of A, to the use of or in trust for B. It was held, that inasmuch as here was a use in A, there could not be a second use in B, and therefore that A took the legal estate, and B an equitable one only.2 But where the testator devised to A and his heirs to the use of B and his heirs, or in trust for B and his heirs to receive the rents, &c., as it made no difference whether the word " use or "trust" were used, it was held, that the legal estate was in B by force of the statute. The question in those cases is, in whom is the first use, or to whom is it limited? Thus, if an estate be limited to A and his heirs, to the use of A and his heirs, in trust for or to the use of B and his heirs, the first use being to A, the grantee, and there being a use or benefit over in favor of B, A is held to be a trustee and B the cestui que trust. But if it had been to A and his heirs to the use or in trust for B and his heirs, A would, in fact, have taken nothing, unless he was by the terms of his deed charged with some certain duty in regard to the estate which required him to retain the

1 2 Flint. Real Prop. 787; Fearne, Cont. Rem. 326; Vanderheyden v. Crandall, 2 Denio, 9.

2 Wms. Real Prop. 134, where the illustration is a feoffment instead of a devise, the same rule being applicable to each. Moore v. Shultz, 13 Penn. St. 98; 2 Jarm. Wills, 198; Tud. Lead. Cas. 268; Doe v. Passingham, 6 B. & C. 305; 1 Sugd. Pow. 3d Am. ed. 168-171; 2 Smith, Lead. Cas. 5th Am. ed. 454.

3 Doe v. Collier, 11 East, 377; 2 Jarm. Wills, 199; Kay v. Scates, 37 Penn. St. 37; Webster v. Cooper, 14 How. 488.

4 Broughton v. Langley, Ld. Raym. 873; Right v. Smith, 12 East, 455; Doe v. Bolton, 11 A. & E. 188; Ramsay v. Marsh, 2 M'Cord, 252; Welch v. Allen, 21 Wend. 147; Jenney v. Laurens, 1 Spear, 356.

seisin. The legal estate, in such cases, vests in him to whom, by the words of the instrument, the use is first limited.2 Though where a devise has been made to A and his heirs, to the use of B and his heirs, whether or not the estate is to be executed in *B, may depend upon a construction of the whole will as to [*168] the intent of the testator in that respect. 8

3. The question whether the person named as trustee shall be construed to have the legal estate, or it shall be transmitted through him to the cestui que trust, is often determined by the fact that he is charged with duties in respect to the property which require that the legal estate should be vested in him; as, for instance, to dispose of the property, or pay the rents over to the cestui que trust, or apply them in the maintenance of the cestui que trust, or to manage with the estate as the trustee should think most for the interest of the cestui que trust, and the like, or to pay the rents to a married woman, or to suffer her to receive the rents, or pay annuities out of the rents, &c. And though it was, for a while, maintained as law in Pennsylvania, that a use will be held to be executed in a cestui que trust, where he is to have the beneficial interest in the estate, except in cases of femes covert and others under a disability, it is now established, that if a trust is created, in which the trustee has an active duty to perform, like receiving and paying the rents to the cestui que trust, it does not become an executed use, but is properly a trust, thus in effect overruling, to this extent, the cases of Kuhn v. Newman and Kay v. Scates, cited below. It is held that trusts in

1 Price v. Sisson, 13 N. J. 173, 174; 2 Bl. Com. 336; Hill, Trust. 230, 235; Hayes v. Tabor, 41 N. H. 521, 525, 526.

2 Attorney Gene 1. Scott, Cas. temp. Talb. 138.

8 Gregory v. Henderson, 4 Taunt. 775, by Gibbs, C. J.; Harton v. Harton, 7 T. R. 653, by Lord Kenyon, C. J.

* 2 Jarm. Wills, 198; Posey v. Cook, 1 Hill (S. C.), 413; Morton v. Barrett, 22 Me. 257; Norton v. Leonard, 12 Pick. 152, 158; Newhall v. Wheeler, 7 Mass. 189; Schley v. Lyon, 6 Ga. 530; 1 Prest. Est. 185; Co. Lit. 290 b, n. 249, § 6; Tud. Lead. Cas. 268, 269; Plenty v. West, 6 C. B. 201; 1 Cruise, Dig. 385; Doe v. Homfray, 6 A. & E. 206; Doe v. Biggs, 2 Taunt. 109.

Bass v. Scott, 2 Leigh, 356; Exeter v. Odiorne, 1 N. H. 232.

62 Flint. Real Prop. 768; 2 Jarm. Wills, 204; 1 Spence, Eq. Jur. 466; Pullen v. Rianhard, 1 Whart. 514, 520; Lancaster v. Dolan, 1 Rawle, 231; Nevil v. Saunders, 1 Vern. 415; Jones v. Say and Seal, 1 Eq. Cas. Abr. 383; Harton v. Harton, sup. * Kuhn v. Newman, 26 Penn. St. 227; Kay v. Scates, 37 Penn. St. 36.

* Bell's Estate, Barritt's Appeal, Opinion of Read, J., Phila. Leg. Intelligencer,