are within the adjudication of Courts of Common Law; nor have Courts of Equity any original or exclusive power to decide upon them. These matters, it is true, are often considered in Courts of Equity, and a thorough knowledge of them is indispensable; but it is to the Common Law Writers, and to the Common Law Reports, that reference must be had for the most authoritative decisions on these subjects. Indeed, a Person having a legal Estate only, and no beneficial Interest, cannot, it seems, come into Equity for any purpose (1). It may, however, be remarked, that the Courts of Common Law, in their decisions upon the creation of Estates by way of Use, show more indulgence to the intent of the Parties than they do in regard to the creation of Estates by Conveyances at Common Law (m). ་ It is to Trusts, and Trusts only, that the Reader's attention will here be particularly directed to that "creature of Equity," as it is called, of which the Common Law takes no notice, and over which Courts of Equity have an original, a peculiar, and exclusive, Jurisdiction (n). In the definition of an Use as it existed before the Statute of Uses, Trusts have already been defined. A Trust is, in other words, a right in the Cestui que Trust to receive the Profits, and to dispose of the Lands in Equity (o), and is such a confidence between Parties that no Action at Law will lie (p). There may, however, be special Trusts, as (See Williams v. Lord Lonsdale, 3 Ves. 757 (m) 2 Vol, Fonbl, Eq. p. 47. in note. (n) See what Ch. J. Coke says 2 Bulstr. 337. (0) 1 Mod. 17. (p) Sturt v. Mellish, 2 Atk. 612. for the accumulation of Profits, the Sale of Estates, or the conversion of one Trust Fund into another, which may preclude all power of interference on the part of the Cestui que Trust until such special Trust be satisfied (q). In general, Courts of Equity, in the construction of Words by which Trusts are limited of Real or Personal Estate, follow the Rules which Courts of Law have laid down, in regard to the creation and limitation of legal Estates (r); and this whether the Trust be created by Deed or by Will (s). Whether the words in a Deed or a Will pass an absolute or a limited Interest is decided by Rules common to both Courts (t); the only difference being that where a Trust Estate is created by Deed or Will, it is determined upon. in Courts of Equity, and where a Conveyance or a Devise is of a legal Estate, it is determined on in Courts of Common Law; but the decision in each Court in the construction of words of limitation is guided by the same Rules. The principal exceptions to this general Rule are in the cases of Articles before Marriage, already adverted to under the head of Mistake (u), and in cases of what are termed Executory Trusts, which will afterwards be adverted to. (9) Sanders on Uses, 1 Vol. 215, 3rd Edition. (r) Duke of Norfolk's Case, 3 Cha. Cas. 48. Bale v. Coleman, 1 P. Wms. 143. Garth v. Baldwin, 2 Ves. 655. Watts v. Ball, 1 P. Wms. 108. Banks v. Sutton, 2 P. Wms. 713. Lord Portsmouth v. Lord Effinghum, 1 Ves. 434. (s) Wagstaff v. Wagstaff, 2 P. Wms. 259. (t) See Duke of Norfolk's Case, 3 Cha. Cas. 48; and see Phillips v. Brydges, 3 Ves. 125. Lord Portsmouth v. Lord Ef fingham, 1 Ves. 434. (u) Ante, p. 61. The Cestui que Trust has, in most respects, the same power over the Trust Estate, as owners of legal Estates are possessed of; and the Trust Estate is in general liable in the same manner as a legal Estate, except in respect of Dower (x). He may alien it ; and any legal Conveyance or Assurance by him has the same effect and operation upon the Trust as it would have had at Law upon the legal Estate (y). A Cestui que Trust is always barred by length of time operating against his Trustee. If the Trustee does not enter, and the Cestui que Trust does not compel him to enter as to the person claiming paramount, the Cestui que Trust is barred (≈). The effect of a Fine is the same as at Law with regard to an equitable Interest, if of such a nature, that, turned into a legal Interest, it would have been barred (a). A common Recovery suffered by a Cestui que Trust in Tail, in possession, bars all equitable Remainders depending upon such Estate, Tail (b), although there was no legal tenant to the Præcipe (c), for otherwise, Trustees refusing, or incapable of executing their Trust, might hinder the Tenant in Tail of that liberty to dispose of his Estate, and bar the Remainders which the Law gives him as incident to his Estate, which would be manifestly inconvenient, and tend to the introduction of Per (x) See as to this, post. (y) North v. Champernon, 2 Ch. Cas 63. 78. Boteler v. Allingham, 1 Bro. C. C. 72. Carteret v. Paschall, MS. S. C. 3 P. Wms. 196. (z) Hovendon v. Lord Annesley, 2 Sch. & Lefr. 629; and see 2 Meriv. 358, 9. (a) Willis v. Shorrall, 1 Atk. 476; and see Carpenter v. Carpenter, 1 Vern. 440. Penn v. Peacock, Mich. 8 Geo. 2. 1733. (b) 1 Chan. Cas. 49. 2 Ch. Cas. 64, &c. 2 Ventr. 350. (c) North v. Way, 1 Vern. 13; and see Barnaby v. Griffin, 3 Ves. 276, 7. North v. Champernon, 2 Chan. Cas. 63. 78. petuities (d). But an equitable Recovery does not bar a legal Remainder. To bar legal Remainders, by common Recovery there must be a legal Tenant to a Præcipe (e); nor will such a Recovery be efficient if there be an Estate for Life in another prior to such Estate-Tail (f), or if the Estate for Life be equitable, with a legal Remainder in Tail (g); but it seems an equitable Recovery is good although the Equitable Tenant to the Præcipe has also the legal Estate (h). It is doubtful whether there can be an equitable disseisin, so as to prevent an equitable Tenant in Tail suffering an equitable Recovery (i). According to the old practice of the Court, at least down to the time of Lord Guildford, a Recovery of an equitable Estate was not necessary, but it might be barred by Deed (k). And it has been holden that the Tenant in Tail of an equitable Estate might, by bare articles (7), or by a Devise (m), or Feoffment (n), or Bargain and Sale (0), bar the Entail; but Lord Hardwicke expressly decided to the contrary, and held that a Tenant in Tail of a (d) See the terms of the Decree in North v. Champernoon, 2 Cha. Cas. 78. (e) Robinson v. Cumming, For. 164. S. C. MS. 1 Atk. 473. Selwin v. Thornton, Ambl. 545, 699; and 1 Bro. C. C. 73, in note. Botteler v. Allingham, 1 Bro. C. C. 72. (f) North v. Champernon, 2 Ch. Ca. 63. 78. (g) Shapland v. Smith, 1 Bro. C. C. 74. Robinson v. Cumming, 1 Atk. 473. (h) See this point discussed, Sugden. Vend. and Purch, 287. (i) Lord Grenville v. Blyth, 16 Ves. 224. (k) Fletcher v. Tollett, 5 Ves. 12, 13. (1) Bates v. Bayley, 2 Vern. 226. (m) Blake v. Luxton, 6 T. R. 289. (n) 2 Chan. Cas. 64. Otway v. Hudson, 2 Vern. 583. Woolnough v. Woolnough, Pre. Ch. 228. 1 Vern. 14. (0) North v. Way, 1 Vern. 14. 2 Chan. Cas. 64; and see 2 Ventr. 350. Trust Estate with Remainders over, cannot by Will or Settlement bar the Remainders without a Recovery, any more than Tenant in Tail of a legal Estate (p); and upon its being urged that a Lease and Release would bar an equitable Entail, Lord Hardwicke said, "It never was so determined, and I hope never will (q)." The Cestui que Trust may devise the Trust Estate (r) by his Treason (s), or Felony (t), he forfeits it. It is subject to an Extent (u), (unless it be a Trust of a term of years,) and it may be taken in execution (x). If the equitable Title is not acted upon in the same time the legal Title should, it is barred (y). So Trust Estates descend in the same manner as legal Estates do, whether Customary, (as Borough English, or Gavelkind) or otherwise (2): and there may also be a possessio fratris of a Trust (a), as by the Common Law there was of an Use (b). The Power of the Trustee over the legal Estate vested in him exists only for the benefit of the Cestui que Trust. He may, indeed, by means of that power, prejudice the Cestui que Trust, by alienating (p) Kirkham against Smith, Ambl. 518. S. C. 1 Ves. 260; and see 2 Vern. 552. Legate v. Sewell, 1 P. Wms. 91. Burnaby v. Griffin, 3 Ves. 277Tollett v. Fletcher, 5 Ves. 13. (9) Kirkham v. Smith, 1 Ves. 260. S. C. Ambl. 518. (r) Greenhill v. Greenhill, 2 Vern, 680. (s) See 33 Hen. 8. c. 20. s. 2. (x) See 29 Car. 2. c. 3. s. 10. (y) Medlicot v. O'Donel, 1 Ball & Beatty, 167. Hovendon v. Lord Annesley, 2 Sch. & Lefr. 630. Bonny v. Ridgard, 4 Bro. C. C. 138. S. C. 1 Cox, 145. Andrew v. Wrigley, 4 Bro. C. C. 125. Townsend v. Townshend, 4 Bro. C. C. 138. (z) Banks v. Sutton, 2 P. Wms. 713. Fawcet v. Lowther, 2 Ves. 304; and see 2 P. Wms. 736. (a) 2 P. Wms. 713, 736. |