table, as of the legal interest in lands (a), the equitable interest might at any time have been claimed by the Crown. The legal estate was not affected (b), but the Crown had the right of suing a subpoena against the trustee in equity (c). An alien could not, however, take an equitable interest by act of law as by descent or curtesy (d).

Executory trust for alien. A distinction was taken, that although where a trust was perfected in favour of an alien the Crown might be entitled, yet where a trust in favour of an alien was not in esse, but only in fieri and executory, the court would do no act to give it to the Crown in the right of the alien (e).

Alien might be cestui que trust of proceeds of sale of land. Where a testator directed an estate to be sold, and the proceeds divided amongst certain persons, some of whom were aliens; there, as according to the intention, which was supposed to be executed at the time of the death, the interest devised was money, the Crown was not entitled, for the mere purpose of working a forfeiture, to exercise an election by retaining the property as land; and therefore, aliens were not debarred from enjoying their legacies in the pecuniary character which the testator had stamped upon them (f).1

33 Vict. c. 14. - Now by 33 Vict. c. 14, an alien may take, acquire, hold, and dispose of real and personal property of

(a) Attorney-General v. Sands, Hard. 495, per Lord Hale; Fourdrin v. Gowdey, 3 M. & K. 383. See Burne v. Macdonald, 15 Sim. 6.

(b) King v. Holland, Al. 14; Sir John Dack's case, cited ib. 16; Attorney-General v. Sands, Hard. 495, per Lord Hale.

(c) Sharp v. St. Sauveur, 7 L. R. Ch. App. 351; King v. Holland, Al. 16, per Rolle, J.; Roll. Ab. 194, pl. 8. See Burney v. Macdonald, 15 Sim. 6; Burgess v. Wheate, 1 Eden, 188.

(d) See Calvin's case, 7 Rep. 49;

Dumoncel v. Dumoncel, 13 Ir. Eq. R. 92. As to dower, see Co. Lit. 31 b, note (9) by Harg.

(e) See Burney v. Macdonald, 15 Sim. 14; Rittson v. Stordy, 3 Sm. & Gif. 240, but see Barrow v. Wadkin, 24 Beav. 1; Sharp v. St. Sauveur, 7 L. R. Ch. App. 351.

(f) Du Hourmelin v. Sheldon, 1 Beav. 79, 4 Myl. & Cr. 525; Sharp v. St. Sauveur, 17 W. R. 1002, 20 L. T. N. S. 799, overruled on another ground, 7 L. R. Ch. App. 343, and see Master v. De Croismar, 11 Beav. 184.

1 Anstice v. Brown, 6 Paige, 448; Hubbard v. Goodwin, 3 Leigh, 492; Trezevant v. Howard, 5 Del. 87; Craig v. Leslie, 3 Wheat. 563; Leggett v. Dubois, 5 Paige, Ch. 114; Bradwell v. Weeks, 1 Johns. Ch. 206; Hamersley v. Lambert, 2 Johns. Ch. 508; Taylor v. Benham, 5 How. 270.

every description in the same manner as if he were a natural born subject. But the Act is not retrospective (g).

5. Distinctions in reference to equitable and legal interests. It may be remarked that in certain cases persons are capable of taking an equitable interest, to whom the legal estate could not have been similarly limited. Thus, at common law [until the recent Married Women's Property Acts] no property, real or personal, could be so limited to a married woman, as to exclude the legal rights of the husband during coverture: but, by way of trust, the beneficial interest [*46] could be placed entirely at the disposal of a married woman, so that she should be regarded as a feme sole, and the husband should not participate in the enjoyment.

6. So the legal estate cannot be limited to the objects of a charity, as to the poor of a parish, in perpetual succession; but in a court of equity, where the feudal rules do not apply, the intention of the donor will be carried into effect (a), provided the requisitions of 9 G. 2. c. 36, be complied with. The act last referred to does not produce any incapacity in the cestuis que trust to take, but only prohibits the alienation of land, or property savouring of land, in any other mode than that prescribed by the act, for objects falling within the legal definition of charitable purposes.2

(g) Sharp v. St. Sauveur, 7 L. R. Ch. App. 350; [De Geer v. Stone, 22 Ch. D. 243.] (a) Gilb. on Uses, 204.

1 A cestui que trust must have a capacity to take. Trotter v. Blocker, 6 Port. 269. It may be a trust for self and others. Cocks v. Barlow, 5 Rep. 406. If an infant is a cestui que trust, the principle of the fund may not be diminished except by order of court, but the infant is entitled to maintenance out of the fund, when his father is insolvent. Bethea v. McCall, 5 Ala. 308. The cestui que trust need not be in being at the time the trust is declared, if he is in existence at the death of his trustee for life. Ashurst v. Given, 5 Watts & S. 323. To determine who are cestuis que trust, see Carson v. Carson, 1 Wins. 24; Noble v. Andrews, 37 Conn. 346. The maxim "nemo est haeres viventis" applied. Johnson v. Whiton, 118 Mass. 340.

2 In charitable trusts it is not necessary for the cestui que trust to be capable of holding a legal title; Perry on Trusts, Chap. XXIII. Trusts may be created for persons yet unborn; Collins v. Hoxie, 9 Paige, 81; Ashurst v. Given, 5 W. & S. 329; Gardner v. Heyer, 2 Paige, 11; Carson v. Carson, 2 Wins. (N. C.) 24; but not if immoral, or contrary to public policy; Battinger v. Budenbecker, 63 Barb. 404; Ownes v. Ownes, 8 C. E. Green, 60; Flint v. Steadman, 36 Vt. 210; religious societies as cestui que trusts; Bridgewater v. Waring, 24 Pick. 304; Rainier v. Howell, 9 N. J. Eq. 121; Lutheran Church v. Maschop, 10 N. J. Eq. 57; Presbyterian Cong. v. Johnston, 1 Watts & S. 9; Swedesborough Church v. Shivers, 16 N. J. Eq. 453.

WHAT PROPERTY MAY BE MADE THE SUBJECT OF A TRUST.

As a general rule, all property, whether real or personal, and whether legal or equitable (a), may be made the subject of a trust, provided the policy of the law, or any statutory enactment, does not prevent the settlor from parting with the beneficial interest in favor of the intended cestui que trust.1

1. Copyholds may be subject of trust, and equitable interest descends as legal. - A trust may be created of lands regulated by local custom, as copyholds. Thus, A., tenant of a manor, may surrender to the use of B. and his heirs, upon trust for C. and his heirs. And as equity follows the law, the trust in C. will devolve in the same manner as the legal

estate.

2. Power to entail equitable interest depends on custom to entail legal estate. If the custom of the manor permit an entail of the legal estate, an entail may in like manner be created of the equitable (b); but if there be no such custom as to the legal estate, there can be no entail of the equitable (c). Where, therefore, the equitable interest in lands held

(a) Knight v. Bowyer, 23 Beav. 609, see p. 635; 2 De G. & Jon. 421. [But there can be no trust of a peerage which is by its very nature a personal possession. Buckhurst Peerage, 2 App. Cas. 1.]

(b) Pullen v. Middleton, 9 Mod. 484; 1 Preston Conv. 152.

(c) The opinion of Watkins, Treat. on Cop. p. 153, and following pages, that there may be an entail of copyholds without a special custom, cannot be maintained.

1 M'Carty v. Blevins, 5 Yerg. 195; Robinson v. Mauldin, 11 Ala. 977; Clemson v. Davidson, 5 Binn. 392; Morton v. Naylor, 1 Hill, 439. Property not in existence as well as property not owned by the settlor may be the subject of a trust. Calkins v. Lockwood, 17 Conn. 154; Stewart v. Kirkland, 19 Ala. 162; Pennock v. Coe, 23 How. 117; Brooks v. Hatch, Leigh, 534; Holroyd v. Marshall, 2 Giff. 382; Hinkle v. Wanzer, 17 How. 353; Bank v. Hastings, 15 Wis. 75. But see Garrow v. Davis, 15 How. 277; Gardner v. Adams, 12 Wend, 297; McKee v. Judd, 2 Ker. 622; Dunklin v. Wilkins, 5 Ala. 199, Story, Eq. Jur. §§ 1040-1055.

of a manor not permitting an entail is limited to A., and the heirs of his body, the estate is not construed as an entail but as a fee conditional; that is, on issue born the condition is fulfilled, and A. may alienate in fee. But until alienation, the equitable interest descends in the line of the issue like an entail; and if A. die without issue, an equitable right of entry reverts to the settlor or his heir. This doctrine is attended with important consequences, which are often overlooked. Thus copyholds are devised to trustees upon trusts corresponding with the limitations of freeholds in strict settlement, and A., the first tenant for life, has a son [*48] born, but who lives only a few weeks. If * the manor do not permit an entail, the son takes a fee simple conditional, and all the subsequent limitations are void. In such a case, the copyholds should be settled like leaseholds, so as not to vest absolutely unless a child attain twenty-one, and on his death under that age to devolve on the next taker under the entail of the freeholds.

3. Equitable interests in foreign personal property. - How far equitable interests may be engrafted on foreign property requires consideration. As regards movable estate there is no difficulty, for it follows the person, and if the settlor himself be domiciled within the jurisdiction of the Court, all his movable estate, whether in the East or West Indies, or elsewhere, is deemed to be at home, and governed by the law of this country. A trust, therefore, may freely be created of such interests, and would be enforced in equity. In certain cases, however, there might be practical obstructions in the way of executing the trust, from the circumstance of the property lying in fact beyond the reach of the Court.

4. Equitable interests in foreign real property. - As to lands lying in a foreign country, the Court will enforce natural equities, and compel the specific performance of contracts, provided the parties be within the jurisdiction, and there be no insuperable obstacle to the execution of the decree.1

1 Massie v. Watts, 6 Cranch, 160; Watkins v. Holman, 16 Pet. 25; De Klyn v. Watkins, 3 Sandf. Ch. 185; Guild v. Guild, 16 Ala. 121; Sutphen v. Fowler, 9 Paige, 280; Vaughan v. Barclay, 6 Whart. 392; Church v. Wiley, 2 Hill, Ch. 584. Where property in jurisdiction, but person not, see Spurr v. Scoville, 3 Cush. 578; Meux v. Maltby, 2 Swans. 277.

Thus Lord Eldon allowed a consignee to have a lien upon the application of general principles for proper advances upon estates in the West Indies (a). So the Court has enforced specific performance of articles between parties for ascertaining the boundaries of their estates abroad (b), has compelled a person entitled to an estate in Scotland to give effect to an equitable mortgage by deposit of deeds of the Scotch estate, though by the law of Scotland a deposit of deeds created no lien (c), has directed an account of the rents *and profits of lands abroad (a), has [*49] ordered an absolute sale (b), and foreclosure of a mortgage (c), and has relieved against a fraudulent conveyance of an estate abroad (d), and prevented a defendant by injunction from taking possession (e). In such cases, however, the Court, according to the modern doctrine, requires as a substratum for its jurisdiction that there should exist a personal privity between the plaintiff and defendant, and in the absence of such privity, no remedy lies by way of lien

(a) Scott v. Nesbitt, 14 Ves. 438.

(b) Penn v. Lord Baltimore, 1 Ves. 444, and Belt's Suppt.; and see Roberdean v. Rous, 1 Atk. 543; Angus v. Angus, West's Re. 23; Tullock v. Hartley, 1 Y. & C. Ch. Ca. 144; Cood v. Cood, 33 Beav. 314; Drummond v. Drummond, 37 L. J. N. S. Ch. 811; 17 W. R. 6.

(c) Ex parte Pollard, 3 Mont. & Ayr. 340; reversed Mont. & Chit. 239. But see Norris v. Chambres, 29 Beav. 246. Martin v. Martin, 2 R & M. 507, may be supported on the ground that the mortgagee had a lien for advances and supplies. Had the lien not existed, Sir J. Leach thought the plaintiff might have compelled a sale as against the husband, but that such equity attached not to the estate, but to the person only that after the institution of a suit, the equity would have bound the estate, but until bill filed the husband could make a good title even to a purchaser with notice; and the court instanced the case of a husband, the apparant owner of two estates of equal value, and that he made a settle

ment of estate A. under the direction of the court, and that the trustees were afterwards evicted by defect of the husband's title: in that case the court would oblige the husband to make a settlement of estate B., but that until the bill was on the file the husband remained the owner of the estate B., and could effectually sell or charge it. As to personal equities, see further, Morse v. Faulkner, 1 Anst. 11, 3 Sw. 429, note (a); Averall v. Wade, Ll. & Go. temp. Sugden, 261; Johnson v. Holdsworth, 1 Sim. N. S. 108; Hastie v. Hastie, 2 Ch. D. 304.

(a) Roberdean v. Rous, 1 Atk. 543. (b) Ib. 544.

(c) Toller v. Carteret, 2 Vern. 494; Paget v. Ede, 18 L. R. Eq. 118; [and see Re Longdendale Cotton Spinning Company, 8 Ch. D. 150.]

75.

(d) Arglasse v. Muschamp, 1 Vern.

(e) Cranstown v. Johnston, 5 Ves. 278; and see Bunbury v. Bunbury, 1 Beav. 318; Hope v Carnegie, 1 L. R. Ch. App. 320.