curtesy as well as dower was made to follow the general principle. As regards the cestuis que trust. With respect to the cestui que trust, or the person entitled to the subpoena, the narrow doctrine contained under the technical expression of privity began equally to be waived, or rather to be applied with considerable latitude of construction. "The equitable interest," said Justice Rolle, "is not a thing in action, but an inheritance or chattel, as the case may fall out" (b); and when once the trust, instead of passing as a chose in action, came to be treated on the footing of an actual estate, it soon drew to it all the rights and incidents that accompanied property at law: thus, the equity of the cestui que trust, though a bare contingency or possibility (c), was admitted to be assignable (d); and Witham's case, that a husband who survived his wife could not, for want of privity, claim her equitable chattel, was declared by the Court to be no longer an authority (e). So a judgment creditor, it was held by Lord Nottingham, might prosecute an equitable fieri facias (f); and though Lord Keeper Bridgman refused to allow an equitable elegit (g), it is probable, had the question arisen before Lord Nottingham, his Lordship would in this, as in other cases, have acted on a more liberal principle: at all events, the creditor's right to relief in this respect has since been established by the current of modern authority (h). Again, a trust was decided by Lord Nottingham to be assets in the hands of the heir (i); and though Lord Guilford [*11] afterwards held the other way (j), yet Lord * Nottingham's view of the subject appears to have been eventually established (a). Curtesy was also permitted of a trust estate, though the widow of a cestui que trust could (b) King v. Holland, Styl. 21; see Casburne v. Casburne, 2 J. & W. 196. (c) Warmstrey v. Tanfield, 1 Ch. Re. 29; Lord Cornbury v. Middleton, 1 Ch. Ca. 208; Goring v. Bickerstaff, 1 Ch. Ca. 8. (d) Courthorpe v. Heyman, Cart. 25, per Lord Bridgman. (e) King v. Holland, Al. 15. (f) Anon. case, cited Balsh v. (g) Pratt v. Colt, Freem. 139. (i) Grey v. Colville, 2 Ch. Re. 143. never make good her title to dower (b); “not," said Lord Mansfield, "on reason or principle, but because wrong determinations had misled in too many instances to be then set right" (c); or rather, as Lord Redesdale thought, because the admission of dower would have occasioned great inconvenience to purchasers — a mischief that in the case of curtesy was not to be equally apprehended (d). 66 Lord Mansfield's doctrines. — Principles governing trusts at the present day. Lord Mansfield was for carrying the analogy of trusts to legal estates beyond the legitimate boundary. "A use or trust," he said, "was heretofore understood to be merely as an agreement, by which the trustee and all claiming from him in privity were personally liable to the cestui que use, and all claiming under him in like privity; nobody in the post was entitled under or bound by the agreement: but now the trust in this Court is the same as the land, and the trustee is considered merely as an instrument of conveyance" (e). And in the application of this principle his Lordship argued, that the estate of the cestui que trust was subject to escheat, and that on failure of heirs of the trustee, the lord who took by escheat was bound by the trust. But to these propositions the Courts of Equity have never yet assented (ƒ). The limit to which the analogy of trusts to legal estates ought properly to be allowed was well enunciated by Lord Northington in the case of Burgess v. Wheate. "It is true," he said, "this Court has considered trusts as between the trustee, cestui que trust, and those claiming under them, as imitating the possession; but it would be a bold stride, and, in my opinion, a dangerous conclusion, to say therefore this Court has considered the creation and instrument of trust as a mere nullity, and the estate in all respects the same as if it still continued in the seisin of the creator of the trust, or the person entitled to it: for my own part [*12] I know no instance where this Court has permitted the creation of a trust to affect (b) Colt v. Colt, 1 Ch. Re. 254. (e) Burgess v. Wheate, 1 Ed. 226. the right of a third person” (a); [(f) But see now 47 & 48 V. c. 71, s. 4.] (a) Burgess v. Wheate, 1 Ed. 250, 251. that is, to illustrate the principle by instances, a tenant by the curtesy, or in dower, or by elegit, as claiming through the cestui que trust or trustee, though in the post, is bound by and may take advantage of the trust; but, according to the doctrine laid down by Lord Northington, the lord who comes in by escheat is not in any sense a privy to the trust, and therefore can neither reap a benefit from it on failure of heirs of the cestui que trust, nor is bound by the equity on failure of heirs of the trustee (b). (b) It is clear that [prior to 47 & 48 V. c. 71], the lord [could] not acquire an equitable interest by escheat: Burgess v. Wheate, 1 Ed. 177; Cox v. Parker, 22 Beav. 168; but whether a lord taking the legal estate by escheat shall or not be bound by the trust, has never been decided. 12 See post, c. xii. s. 3. The Trustee Act, 1850, s. 15, enables the Court to make an order on failure of heirs of the trustee, but is the Crown bound by the Trustee Act? See note on second section of the Trustee Act, post. [See also 44 & 45 V. c. 41, s. 30.] Definition of a trust. - As the doctrines of trusts are equally applicable to real and personal estate, and the principles that govern the one will be found mutatis mutandis, to govern the other, we cannot better describe the nature of a trust generally, than by adopting Lord Cook's definition of a use, the term by which, before the Statute of Uses, a trust (1) of lands was designated (a). A trust, in the words applied to the use, may be said to be "A confidence reposed in some other, (a) Burgess v. Wheate, 1 Ed. 248, per Lord Keeper Henley; Lloyd v. Spillet, 2 Atk. 150, per Lord Hardwicke. (1) That a trust was anciently known as a use, appears from the Merchant of Venice. Thus, when Shylock had forfeited one half of his goods to the State to be commuted for a fine, and the other half of his goods to Antonio, the latter offered that, if the Court, as representing the State, would forego the forfeiture of the one half, he (Antonio) would be content himself to hold the other half in use, that is, in trust for Shylock for life, with remainder, after Shylock's death, for Jessica's husband: "So please my lord the duke, and all the court, To quit the fine for one half of his goods; I am content so he will let me have The other half in use, to render it, Merchant of Venice, Act IV, Scene I. This interpretation clears Antonio's character from the charge of selfishness to which it would be exposed if he were to keep the half for his own use during his life. See Heard's "Shakespeare as a Lawyer," pp. 93, 94; 2 Wash. Real Prop. chap. II.; Wallace v. Wainwright, 87 Pa. St. 263; Croxall v. Shererd, 5 Wall. 268; Reid v. Gordon, 35 Md. 183; Underhill on Trusts and Trustees, 1; 1 Story Eq. Jur. §§ 56, 58; Commissioners v. Walker, 6 How. 143; 38 Am. Dec. 433; Chaffees v. Risk, 12 Harris, 432. not issuing out of the land, but as a thing collateral, annexed in privity to the estate of the land, and to the person touching the land, for which cestui que trust has no remedy but by subpœna in Chancery” (b). 1. A confidence. It is "a confidence"; not neces[*14] sarily a confidence expressly * reposed by one party in another, for it may be raised by implication of law: and the trustee of the estate need not be actually capable of confidence for the capacity itself may be supplied by legal fiction, as where the administration of the trust is committed to a body corporate; but a trust is a confidence, as distinguished from jus in re and jus ad rem, for it is neither a legal property nor a legal right to property (a). 2. Reposed in some other. It is a confidence "reposed in some other"; not in some other than the author of the trust, for a person may convert himself into a trustee, but in some other than the cestui que trust; for as a man cannot sue a subpoena against himself, he cannot be said to hold upon trust for himself (6). If the legal and equitable interests happen to meet in the same person, the equitable is for ever absorbed in the legal. Thus, if A. be seised of the legal inheritance ex parte paterna, and of the equitables ex parte maternâ, upon the death of A. the heir of the maternal line has no equity against the heir of the paternal (c). And the same rule prevails as to leaselords for lives (d): as if the legal estate in a freehold lease be vested in a husband and his heirs, in trust for the wife and her heirs, the child who is the heir of both, and takes the legal estate ex parte paternâ and the equitable (b) Co. Lit. 272, b. Law and equity are now administered in all the courts alike. (a) Bacon on Uses, 5. See Wainewright v. Elwell, 1 Mad. 634. (b) Goodright v. Wells, Dougl. 747, per Lord Mansfield; Conolly v. Conolly, 1 Ir. Rep. Eq. 383, per Christian, L. J. (c) Selby v. Alston, 3 Ves. 339; Goodright. Wells, Dougl. 747, per Lord Mansfield; Wade v. Paget, 1 B. C. C. 363; S. C. 1 Cox, 76; Philips v. Brydges, 3 Ves. 126, per 133. |