in the purchase of lands, to be settled so that any person, if the lands were purchased, would have an estate tail therein, shall, for all the purposes of the Act, be treated as the lands to be purchased, and be considered subject to the same estates as the lands to be purchased would, if purchased, have been actually subject to; and all the previous clauses in the Act, so far as circumstances will admit, shall, in the case of lands to be sold as aforesaid, except copyhold, apply to such lands, in the same manner as if the lands, to be purchased with the money to arise from the sale thereof, were directed to be freehold, and were actually purchased and settled, and shall, in the case of copyholds, apply to such lands, in the same manner as if the lands, to be purchased with the money to arise from the sale thereof, were directed to be copyhold, and were actually purchased and settled, and shall, in the case of money subject to be invested in the purchase of lands, to be so settled as aforesaid, apply to such money, in the same manner as if such money were directed to be laid out in the purchase of freehold lands, and such lands were actually purchased and settled; except that where the disposition shall be made under that clause of leasehold lands for years absolute, or money so circumstanced as aforesaid, such leasehold lands or money shall, as to the person in whose favour or for whose benefit the disposition is to be made, be treated as personal estate; and the assurance by which the disposition of such leasehold lands or money shall be effected, shall be an assignment by deed, which shall have no operation under the Act unless enrolled in the Chancery Division of the High Court within six calendar months after the execution thereof. When, therefore, lands are thus directed to be purchased and settled so as to create an estate tail, you may disentail them before they are actually pur Money in court. Copyholds. Equitable estate in fee. chased and settled, by conveying freeholds, assigning leaseholds, or surrendering copyholds, which may be directed to be sold and the money laid out in the purchase of lands to be settled, or by assigning the money itself, if the trust be simply to lay out money in the purchase of lands to be settled, the deed of conveyance or assignment being enrolled as required within six calendar months. In some cases, where money has been in court subject to a trust to be laid out in the purchase of lands to be settled on a person in tail, with remainders over, the court has allowed the money to be paid out to such person without his executing a disentailing deed (9). This seems to me very much like a judicial repeal of a legislative enactment ("). And in a recent case (s), the present Master of the Rolls thought it would be better that a disentailing deed should be executed. The object appears to have been to save expense. But if Parliament has required a proceeding unnecessarily expensive, Parliament, and not the Judicature, should repeal the law. I mentioned in a former Lecture (t), that equitable estates tail in copyholds may be barred either by surrender, in the same manner as if they were legal estates, or by deed to be entered on the court rolls of the manor within six calendar months after the execution thereof. If lands are conveyed unto and to the use of A. and his heirs, in trust for B. and his heirs; here, although A. is in by the common law, the first use declared being (a) In re Row, L. R., 17 Eq. 300; In re Wood's Settled Estates, L. R., 20 Eq. 372. (r) See Re Wason, LL.J., 10 Jur., N. S. 1011. (s) Re Broadwood, L. R., 1 Ch. D. 438. (t) Lectures on the Seisin of the Freehold, pp. 165, 185. a use to himself, yet the trust for B. and his heirs, being a trust upon a use, is one which the statute will not execute; and B. accordingly does not become seised at law of any estate, but he becomes entitled in equity to an estate in fee simple in the lands conveyed (u). Equitable estates tail are, as we have seen, only to be barred by a deed enrolled in the Chancery Division of the High Court; but with regard to all other estates of an equitable kind, the Court of Chancery has not followed the law in the strictness with which the conveyance of land is dealt with at law. An equitable estate, other than an equitable estate Conveyance of equitable tail, may be conveyed from one person to another by estate. any instrument which shows an intention so to do. There must be a writing, for it is provided by the Statute of Frauds (x), that all declarations or creations of trusts or confidences of any lands, tenements or hereditaments shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of non effect. Provided (y) that where any conveyance shall be made of any lands or tenements, by which a trust or confidence shall or may arise or result by the implication or construction of law, or be transferred or extinguished by an act or operation of law, then and in every such case such trust or confidence shall be of the like force and effect as the same would have been if that statute had not been made. And it is further enacted (z) that all grants and assignments of any trust or confidence shall likewise be in writing, signed by the party granting or assigning the same, or by such last will or devise, or else shall likewise be utterly void and of non effect. If, therefore, writing be used and the intent is clear, an equitable (u) Doe d. Lloyd v. Passingham, € B. & C. 305. (x) Stat. 29 Car. II. c. 3, s. 7. (y) Sect. 8. (z) Sect. 9. Word Rules of equity now to prevail. estate in lands may be conveyed from one person to the other without feoffment, livery of seisin, or even a deed of grant. Equity, moreover, did not follow the law in the strictness with which the law required that estates of inheritance should only be conveyed by the use of the words "heirs" or "heirs of the body." In equity, if the intent is clear, an estate in fee simple will pass without the use of the word "heirs;" and an equitable estate tail may be created without the use of the words "heirs of the body" of the grantee. A rule in apparent contradiction to the maxim, that equity follows the law, has been established by the Supreme Court of Judicature Act, 1873 (a), which provides generally, that in all matters not therein before particularly mentioned, in which there is any conflict or variance between the rules of equity and the rules of the common law, with reference to the same matter, the rules of equity shall prevail. It is very difficult to foresee what construction will be placed by the court upon this very general though important enactment. I suppose it was hardly intended to enact that an estate in fee simple shall now at law be conveyed to a man without the use of the word "heirs," or that an estate in tail may now be granted to a man without the use of the words "heirs of the body." I suppose that the section was intended to apply merely to cases in which a conflict between the rules of equity and the rules of law occurs with reference to the particular matter under consideration. I confess I look forward with some curiosity to see how this provision will be interpreted by the courts. (a) Stat. 36 & 37 Vict. c. 66, s. 25, sub-s. 11. In some respects the doctrines of law cannot be followed out in all their consequences by the courts of equity. The rules of tenure which affect legal estates, Tenure. cannot, from the nature of the case, affect estates which are merely equitable, or held by one person in trust for another. If the cestui que trust, or person in trust for No escheat of whom the property is held, should die without heirs, estate. equitable the equitable interest which belonged to him will not escheat to any lord, for the cestui que trust was not the tenant of any lord. At law the cestui que trust is Cestui que simply tenant at will to his trustees. It has been held that, in case of the failure of the heirs of the cestui que will. trust, the trustee, who is seised of the premises in law, may still continue to hold the estate discharged from any trust (b). So that in this case he will become entitled for his own benefit. trust is tenant at trust estate. gagee session. in pos The descent of trust estates under the old law was Descent of governed by rules analogous to those which governed the descent of legal estates under the same law. The seisin of the trustee was considered to be in equity the actual seisin of his cestui que trust (c). When property When mortwas in mortgage, and the mortgagee was in possession, it was thought that the mortgagor, who had then only an equitable estate in the lands called an equity of redemption, not being in possession, was not actually seised in equity of the lands so as to cause such equity of redemption to descend to his own heir, rather than to the heir of the person last actually seised (d). But if, When mortas is usually the case, the mortgagee was not in posses- possession. sion, but the mortgagor was in receipt of the rents and profits, here he had an equitable seisin sufficient to make him the stock of descent (e). The Act to amend the law (b) Burgess v. Wheate, 1 Sir Wm. Black. 123. (c) Parker v. Carter, 4 Hare, 400. (d) Penvill v. Luscombe, Mosley's Reports temp. King, 72; 2 Jac. (e) Casburne v. Inglis, 2 Jac. & gagee not in |