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It is accordingly provided, that no trust shall result where one pays money and the conveyance is made in the name of another, unless it is done without the knowledge or assent of the party paying the money, or unless the party paying the money have creditors, in which case a trust results in their favor. So if A purchases land with B's money, and takes a deed to himself, with the knowledge of the owner of the money, it will not raise a resulting trust in his favor. But where a married woman paid the consideration, and the conveyance was, without her knowledge, taken to her brother, it was held to raise a resulting trust in her favor, and not to come within the statute of New York. But if one pays
another's money, and takes a deeď to himself without the [*214] knowledge or assent of such other person, or *do this in
violation of a trust, a trust results in favor of him whose money, has been thus applied, as would have been the case before the statute. No implied trust, however, will affect a purchaser without notice, who pays a valuable consideration for the estate. Where there is an express trust, the whole estate the trustee. The cestui que trust takes no estate or interest in the lands, and can only enforce the trust in equity. The statute does not abolish public charitable trusts, but the courts will enforce them as before. As to the duration of trusts, the rule is that they will be held to continue so long as it may be necessary to accomplish the purposes for which they are created, and the estates of trustees cease. as soon as the purposes cease for which the trust was created. Where lands are devised to executors or trustees to sell, and they are not to receive the rents and profits, no estate vests in them, but a mere power only. And the same rule applies to all cases of express trusts which may
be exercised under the form of a power. They are construed as giving not an estate, but merely a power.8 Upon the creation of a trust,
1 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, ch. 1, $$ 51, 52; Lalor, Real Prop. 160-162; Norton v. Stone, 8 Paigo, Ch. 222 ; Jencks v. Alexander, 11 Paige, Ch. 619; Brewster v. Power, 10 Paige, Ch. 562.
? Lounsbury v. Purdy, 18 N. Y. 515.
8 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, ch. 1, $ 53; Lalor, Real Prop. 164; Reid v. Fitch, 11 Barb. 399; Lounsbury v. Purdy, id. 496.
4 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, ch. 1, § 54; Lalor, Real Prop. 167. 6 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, ch. 1, § 72; Lalor, Real Prop. 185. 6 Williams v. Williams, 4 Seld. 525. 7 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, ch. 1, $$ 59, 79; Lalor, Real Prop. 176. 8 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, ch. 1, $$ 70, 72; Lalor, Real Prop. 182, 185.
whatever estate or interest is not embraced in the trust, or otherwise disposed of, remains in and reverts to the person who creates the estate of the trustee. Where the trust is expressed in the instru
? ment creating it, every sale or act of the trustee which is in contravention of the trust is void.2 If the trust is not declared in the deed conveying the estate to the trustee, it is liable for the debts of the trustee in favor of subsequent creditors without notice of the trust, and shall be deemed his absolute property as to them and purchasers from him, without notice, and for a * valuable [*215] consideration. No one paying money in good faith to a trustee, is to be responsible for its application. Trust estates do not descend to the heirs of trustees. If at the death of a trustee, a trust is unexecuted, the estate vests in the court, who may execute the trust in person, or appoint a trustee for the purpose. Trustees may resign by permission of the court, or may be removed for good cause, and, in such cases, the court may substitute new trustees in place of the old ones.6
1 Rev. Stat. 1827, pt, 2, art. 2, tit. 2, ch. 1, § 74; Lalor, Real Prop. 187; James o. James, 4 Paige, Ch. 115.
2 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, ch. 1, § 77 ; Lalor, Real Prop. 189. 8 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, ch. 1, § 76; Lalor, Real Prop. 189. 4 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, ch. 1, $ 78 ; Lalor, Real Prop. 190. • Rev. Stat. 1827, pt. 2, art. 2, tit. 2, ch. 1, § 80; Lalor, Real Prop. 193.
6 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, ch. 1, $$ 81, 82, 83; Lalor, Real Prop. 194196.
Sect. 1. Nature and Characteristics of Remainders.
NATURE AND CHARACTERISTICS OF REMAINDERS.
1. How estates in expectancy are incorporeal hereditaments. 2. Of the divisibility of estates in fee into lesser estates. 3. Estates in fee originally associated with the idea of seisin. 4. Seisin not predicated of any estate less than a freehold. 6. Examples of what are estates in remainder. 6. Remainders defined. 7. Of particular estates. 8. Remainders not within the restriction against freeholds in futuro. 9. Remainders, whether vested or contingent. 10. Remainder must take effect on determination of prior estate. 11. Any number of remainders less than a fee, may be carved out of a fee. 12. Distinction between a remainder and a conditional limitation. 13. Of a remainder after an estate in fee-tail. 14. Remainder not a word of art. 15. Contingency of enjoyment not a test of a remainder being contingent. 16. Of the vesting of estates in possession and in interest. 17. What is meant by capacity to take effect in possession. 18. Tendency to construe remainders vested rather than contingent.
19. Remainders are vested when given to a class, though some not in esse.
1. Before proceeding to consider the remaining branches of the doctrine of uses, namely, springing and shifting uses and powers, it seems to be proper if not necessary, to treat of the law of remainders, in order the better to understand the application of these branches to the general subject of future and contingent estates. Thus far the interests in real property which have been treated of, have had reference chiefly to the present and immediate possession or enjoyment of such property, applying the term possession to corporeal and that of enjoyment to incorporeal hereditaments. It is hardly necessary, however, to remind the reader, after what has been said from time to time of estates in expectancy, that among the qualities of the estates which have heretofore been described, is that of a future possession and enjoyment, as distinguished from the present, which give to them the nature of incorporeal hereditaments, from being neither visible nor tangible, though having the capacity of becoming such. In examining the subject it will be found, that much nice learning is involved in the discussion growing out, among other things, of that imperative feudal dogma of the common law, that a distinct independent freehold estate in lands cannot be created to commence in futuro. As such estates could only be created by livery of seisin, and there could be but one seisin in the proper feudal sense, one could not, in the nature of things, part with his seisin to another, and still retain it for any period, long or short. The principal difficulty will be to show and illustrate under what circumstances *and how a future estate of freehold can be created in favor [*220] of any one without doing violence to this dogma.
Before undertaking to classify or describe the future and expectant estates in lands which are known to the law, it may be well to
1 Wms. Real Prop. 195.
lay down, with as much distinctness as possible, a few leading principles which enter into the character of them all. There can for instance, as already stated, be but one actual seisin of any estate at one and the same time, and that can only be in him who has a freehold therein.
2. An estate in fee-simple being considered an entire thing, of unlimited duration, is susceptible of being divided and carved up into any conceivable number of lesser estates. Any number of estates measured by terms of years, or lives of individuals, would not be equivalent to or commensurate with a fee-simple estate. After serving all these, there would still be a residue of estate remaining unexpired.
3. By the original theory and notion of the common law, this estate in fee-simple could only be predicated of something of a tangible, corporeal, and immovable character, like lands, the possession of which under the name of seisin could be delivered by one person to another, and become inseparably associated with the idea of complete ownership thereof. Though estates of less quantity or duration than a fee-simple, became or were always known to the feudal and common law, none of these, if for a fixed period of years or a period less than what might be the duration of a life, were deemed to be worthy the acceptance of a freeman. But if the estate were of the requisite duration to be regarded a freehold, the tenant became the vassal of the lord, charged with the services which belonged to the land, and entitled to the rights and privileges of the other vassals who held of the same lord. The evidence of this was his being clothed with the possession under the name of livery of seisin, and thereby becoming, from the nature of his holding or tenure, a freeholder, and his estate a freehold.
.4. If the estate was less than a freehold, the tenant was not created such by such livery of seisin, but was merely put into possession of the lands, and held them as agent or bailiff of the one who
had the seisin, holding possession under him and keeping [*221] *his seisin good, since seisin and possession were so nearly
identical that no one could have a seisin of land which was actually in the adverse possession of another. But where the posesssion was not adverse, it might be held by one person subordinate to the seisin in another.
5. In order practically to apply these principles which have been