declared, for a tenant in tail was incapacitated by the statute de donis from executing estates (a). With respect to a feoffment for life to uses, there appears to be no reason upon principle (except so far as the language of the act may be thought to furnish any inference), and certainly there is no objection on the score of authority, why the cestui que use might not have passed the legal estate by virtue of the statutory power. It has been contended by Mr. Sanders, that on a feoffment for life no use grafted on the life estate could have been declared, on the ground that as the tenant for life held of the reversioner, the consideration of tenure would have conferred a title to the beneficial interest on the tenant for life himself (b). But this reasoning can have no application where the estate for life was not created, but was merely transferred, for then the assignment of the life estate was not distinguishable in this respect from a conveyance of the fee; in each case there was no consideration of tenure as between the grantor and grantee, but in each case the services incident to tenure were due from the grantee to a third person (1). It is clear that the statute embraced uses of lands only, and did not extend either to special trusts, or to trusts of * chattels : not to special trusts, because the trustee combined in himself both the legal estate and the use, though compellable in Chancery to direct them to a particular purpose; and not to trusts of chattels, because the preamble and the statute were addressed to cestui que use and his heirs, and to feoffees in trust.

(a) Co. Lit. 19, b..

[*6]

(b) Sand. on Uses, c. 1, s. 6, div. 2.

(1) In what case a use might have been declared upon an estate for life. The state of the law upon this subject appears to have been as follows:-(1). On the creation of an estate for life, had no use been mentioned on the face of the instrument, the tenant for life had held for his own benefit in compensation for his services: Perk. s. 535; B. N. C. 60; Br. Feff. al. Uses, 10; and no use could have been averred in contradiction to the use implied. See Gilb. on Uses, 57. (2). Had a use been expressly declared by the deed, the tenant had been bound by the terms on which he accepted the estate: Perk. s. 537; Br. Feff. al. Uses, 10, 40; (3), unless a rent had been reserved, or consideration paid, in which case a court of equity would not have enforced the use against the purchaser for valuable consideration: B. N. C. 60; Br. Feff. al. Uses, 40. (4). On the assignment of a life estate a use might have been declared, as on a conveyance in fee.

27 H. 8. c. 10.-The mischiefs of the system increasing more and more (the statute of Richard occasioning still greater evils than it remedied, from the facility it gave to the cestui que use and his feoffee, who had now each the power of passing the legal estate, of defrauding by collusion the bona fide purchaser), the legislature again interposed its authority by 27 Hen. 8. c. 10, and thereby annihilated uses as regarded their fiduciary character, by enacting, that "Where any person stood seised of any hereditaments to the use, confidence, or trust of any other person, or of any body politic, such person or body politic as had any such use, confidence, or trust, should be deemed in lawful seisin of the hereditaments in such like estates as they had in use, trust, or confidence" (1).

Special trusts and trusts of chattels excepted from the statute. Uses by the operation of this statute became merged in the legal estate; but special trusts and trusts of chattels were not within the purview of the Act: the former, because the use, as well as the legal interest, was in the trustee; the latter, because a termor is said to be possessed, and not to be seised of the property.

[*7]

In the room

* Introduction of the modern trust.
of uses which were thus destroyed as they arose,

(1) Objections to the doctrine that no use could have been declared upon an estate in tail or for life. - As this statute does operate on the use of a life estate, but does not apply to a seisin in tail, the doctrine of Mr. Sanders, that prior to 27 Hen. 8. there was no use of a seisin either in tail or for life, seems open to the following objections:- 1. That the statute in executing the use of a life estate operates on an interest which at the time of the enactment had no existence; and, 2ndly, that in not executing a use declared on a seisin in tail, it operates differently on two estates falling, according to his view, within the same principle. To meet the former objection, Mr. Sanders holds the statute of Hen. 8. to be prospective, and distinguishes it from the statute of Richard, which he considers not to be prospective, by observing that the latter employs the word "use" only, while the former has the additional term of "trust"; but to this it may be answered, that, although the statute of Richard does not contain the word trust, the preamble does, and that the distinction contended for between use and trust had no existence until a comparatively late period. See Altham v. Anglesey, Gilb. Eq. Rep. 17. To obviate the latter objection, it is maintained by Mr. Sanders that tenant in tail is within the statute of Hen. 8.; an opinion which, it is submitted, is directly opposed to the general stream of authority: Co. Lit. 19, b.; Shep. Touch. 509; Gilb. on Uses, 11, and Lord St. Leonards' note, ibid.

the judges by their construction of the statute created a novel kind of interest, since distinguished and now known by the name of Trust. Before the statute of Hen. 8. a person, to have had the complete ownership, must have united the possession of the land and the use of the profits. The possession and the use were even at common law recognised as distinct interests, though the cestui que use was left to Chancery for his remedy (a). On a feoffment to A. to the use of B. to the use of C., the possession was in A., the use in B., and the limitation over to C. was disregarded as surplusage. When the statute of Hen. 8. was passed, it executed the estate in B. by annexing the possession to the use; but having thus become functus officio it did not, as the Act was construed, affect the use over to C. However, Chancery, now that uses were converted into estates, decreed C. to have a title in equity, and enforced the execution of it under the name of a trust (b).

"In

Land, use, and trust distinguished by Lord Hardwicke, terests in land," said Lord Hardwicke, "thus became of three kinds: first, the estate in the land itself, the ancient commonlaw fee; secondly, the use, which was originally a creature of equity, but since the statute of uses it drew the estate in the land to it, so that they were joined and made one legal estate; and thirdly, the trust, of which the common-law takes no notice, but which carries the beneficial interest and profits in a court of equity, and is still a creature of that court, as the use was before the statute "(c).

Trusts not within statutes relating to uses. This newly created interest was held to be so perfectly distinct from the ancient use, that the statutory provisions by which many of the mischiefs of uses had been remedied, as the 19th Hen. 7. c. 15, by which uses had been made liable to writs of execution, and the 26th Hen. 8. c. 13, by which [*8] they had become forfeitable to the Crown for treason, were decided to have no application. However, the trust

(a) Lit. s. 462, 463; Co. Lit. 272, b.; and see Carter, 197; Porey v. Juxon, Nels. 135; Megod's Case, Godb. 64.

(b) See Hopkins v. Hopkins, 1 Atk. 591.

(c) Willett v. Stanford, 1 Ves. 186; Coryton v. Helyar, 2 Cox, 342.

took the likeness of the use, conforming itself to the nature of special trusts and trusts of chattels, which had never been disturbed by any legislative enactment.

Trusts at first modeled after the pattern of uses. — To show how, the principles of uses prevailed after the statute of Hen. 8. it was held in the reign of Elizabeth (a), that the equitable term of a feme covert did not vest in the husband by survivorship, for a trust, it was said, was a thing in privity, and in the nature of an action, and there was no remedy for it but by writ of subpoena. And a few years after in the same reign it was resolved by all the Judges, that a trust was a matter of privity, and in the nature of a chose in action, and therefore was not assignable (b). And in the sixth year of King Charles the First it was decided by the Judges, that as a feme was dowable by act or rule of law, and a court of equity had no jurisdiction where there was not fraud or covin, the widow of a trustee was not bound by the trust, but was entitled beneficially to her dower out of the trust estate (c).

Improvements introduced by Lord Nottingham. But during the reign of Charles the First and Charles the Second, and particularly during the Chancellorship of Lord Nottingham, who, from the sound and comprehensive principles upon which he administered trusts, has been styled the father of equity (d), the Courts gradually threw off the fetters of uses and, disregarding the operation of mere technical rules, proceeded to establish trusts upon the broad foundation of conformity to the course of common law. "In my opinion," said Lord Mansfield, "trusts were not on a true foundation till Lord Nottingham held the great seal; but by steadily pursuing from plain principles trusts in all their consequences, and by some assistance from the legislature, a noble, rational, and * uniform system of law has since been raised; so that trusts are now made to answer the exigencies of families and all purposes, without produc

[*9]

(a) Witham's Case, 4 Inst. 87; S. C. Popham, 106, sub nomine Johnson's Case.

(b) Sir Moyle Finch's Case, 4 Inst.

(c) Nash v. Preston, Cro. Car. 190. (d) Philips v. Brydges, 3 Ves. 127; Kemp v. Kemp, 5 Ves. 858.

86.

ing one inconvenience, fraud, or private mischief, which the statute of Hen. 8. meant to avoid" (a).

Alterations made in trusts as regards the trustee. As to the changes that were successively introduced, it was held with reference to the trustee, that actual confidence in the person was no longer to be looked upon as essential. A body corporate therefore was not exempted from the writ of subpoena on the ground of incapacity (b): and even the king, notwithstanding his high prerogative, was invested with the character of a Royal Trustee (c), though the precise mode of enforcing the trust against him was not exactly ascertained: to use the language of Lord Northington, "the arms of equity were very short against the Prerogative" (d). The subtle distinctions which had formerly attended the notion of privity of estate were also gradually discarded. Thus it was laid down by Lord Hale, that tenant in dower should be bound by a trust as claiming in the per by the assignment of the heir (e); and so it was afterwards determined by Lord Nottingham (ƒ): and when an old case to the contrary was cited by Lord Jeffries, it was unanimously declared both by the bench and the bar to be against equity and the constant practice of the Court (g). A tenant by statute merchant was held to be bound upon the same principle, for he took, it was said, by the act of the party, and the remedy which the law gave thereupon (h). But as to the tenant by the curtesy, Lord Hale gave his opinion, that one in the post should not be liable to a trust without express mention made by the party who created it; and therefore tenant by * the [*10] curtesy should not be bound (a): but his Lordship's authority on this point was subsequently over-ruled, and

(a) Burgess v. Wheate, 1 Ed. 223. (b) See Green v. Rutherford, 1 Ves. 468; Attorney-General v. Whorwood, 1 Ves. 536.

(c) See Penn v. Lord Baltimore, 1 Ves. 453; Earl of Kildare v. Eustace, 1 Vern. 439.

(d) Burgess v. Wheate, 1 Ed. 256. (e) Pawlett v. Attorney-General, Hard. 469.

(f) Noel v. Jevon, Freem. 43.

(g) MS. note by an old hand in the copy of Croke's Reports in Lincoln's Inn Library, Cro. Car. 191.

(h) Pawlett v. Attorney-General, Hard. 467, per Lord Hale.

(a) Pawlett v. Attorney-General, Hard. 469.