The rule that an estate in fee simple necessarily involves the right of transfer has also usually been applied to the case of an equitable as well as of a legal estate in fee simple, it being held that a beneficiary, or all the beneficiaries, of a trust, if in existence and sui juris; may demand a conveyance. of the legal title from the trustee, and thus obtain absolute control over the property, including the right of alienation ;148 that such property will pass to an assignee in bankruptcy;147 and that the creditor of a beneficiary may proceed in equity to subject the equitable interest to his claim.148 It has recently, however, been held in this country that the trust will not be so terminated by compelling a conveyance of the legal title, if this is plainly not in accord with the purpose of the creator of the trust, 149 and that, on the same principle, the creditors of a beneficiary cannot reach the corpus of the fund.150

In the case of the "equitable separate estate" of a married woman, though she has a fee-simple interest therein, she may, by the terms of the settlement upon her, be restrained from transferring the property, or from anticipating the income, this being merely an application by the courts to her fee-simple interest of the rule previously recognized in cases in which she had merely a life interest.151

147 Sanford v. Lackland, 2 Dill. 6, Fed. Cas. No. 12,312, 6 Gray's Cas. 138.

148 Mebane v. Mebane, 39 N. C. 131, 6 Gray's Cas. 134; Marshall's Trustee v. Rash, 87 Ky. 116; Sears v. Choate, 146 Mass. 395. So, to the effect that a provision that the equitable estate shall not be liable for the debts of the cestui que trust is invalid. Taylor v. Har well, 65 Ala. 1; Turley v. Massengill, 7 Lea (Tenn.) 353.

149 Claflin v. Claflin, 149 Mass. 19, Gray's Cas. 141; Cuthbert v. Chauvet, 136 N. Y. 326; Gunn v. Brown, 63 Md. 96. See ante, § 101. 150 Goe's Estate, 146 Pa. St. 431; Weller v. Noffsinger, 57 Neb. 455. 151 Baggett v. Meux, 1 Phillips, 627, 6 Gray's Cas. 131; In re Cur rey, 32 Ch. Div. 361; Wells v. McCall, 64 Pa. St. 207; 2 Perry, Trusts, 671; Gray, Restraints Alien. Prop. § 125.

The principle involved in the above decisions-that land cannot be transferred subject to provisions restricting the freedom of alienation by those beneficially entitled-is sometimes applied as a ground for deciding that a noncharitable trust which, by its terms, may continue indefinitely, owing to the absence of any definite cestui que trust, who may call for a transfer of the legal estate, or may alien the beneficial interest, is void as creating a perpetuity.152 In other cases, however, such a trust is regarded as void, owing, not to the possibility of its indefinite continuance, but rather because there is no person in whose favor it can be enforced by the courts.158

Estates in fee tail.

The right of a tenant in tail to transfer the land by a common recovery, or a fine levied in accordance with certain statutes, and so to bar the entail, has been recognized as an essential incident of the estate, of which it cannot be de

182 Thompson v. Shakespear, 1 De Gex, F. & J. 399; Cocks v. Manners, L. R. 12 Eq. 574; Yeap Cheah Neo v. Ong Cheng Neo, L. R. 6 P. C. 381; Brannigan v. Murphy [1896] 1 Ir. 418; Piper v. Moulton, 72 Me. 155; Bates v. Bates, 134 Mass. 110; Coit v. Comstock, 51 Conn. 352; Williams v. Herrick, 19 R. I. 197; Johnson v. Holifield, 79 Ala. 423; Pennoyer v. Wadhams, 20 Or. 274; Detwiller v. Hartman, 37 N. J. Eq. 347; Hartson v. Elden, 50 N. J. Eq. 522; Moore's Ex'r v. Moore, 50 N. J. Eq. 554; Brown v. Esterhazy (D. C.) 25 Wash. Law Rep. 478.

This view is sometimes expressed by a declaration that the trust is in violation of the "rule against perpetuities," a use of the latter phrase calculated to create confusion between this and the rule against remoteness. See article by John C. Gray, Esq., in 15 Harv. Law Rev. 509, and ante, § 152.

153 Morice v. Bishop of Durham, 9 Ves. 399, 10 Ves. 521; Chamberlain v. Stearns, 111 Mass. 267; Adye v. Smith, 44 Conn. 60; Holland v. Alcock, 108 N. Y. 312; Lewin, Trusts, 139; Perry, Trusts, §§ 116, 711. As to the application of this requirement of definiteness in the case of a charity, see ante, § 49.

prived by any provision in the instrument creating it;154 and the statutory right of barring the entail by a conveyance no doubt stands upon the same footing.

Estates for life.

In the case of a legal or equitable estate for life, a condition or limitation which terminates the estate upon its attempted transfer by him, or upon its involuntary transfer away from him on behalf of his creditors, as upon his bankruptcy, or upon a sale under a judgment, is valid,15 except when the condition or limitation is created in a settlement made by himself, at least as regards the involuntary alienation of the property.156

155

A provision attached to the creation of a legal estate for life, not that it shall terminate upon an attempt to transfer it, but declaring in effect that such an attempt, whether made by the life tenant himself, or by or in behalf of his creditors, shall be utterly nugatory, is invalid.157

In the case of an equitable, as distinct from a legal, estate for life, it has been held in many states, under the doctrine of "spendthrift trusts," in opposition to the well-set

154 Portington's Case, 10 Coke, 35b; Gray, Restraints Alien. Prop. § 77; Stansbury v. Hubner, 73 Md. 228.

155 Gray, Restraints Alien. Prop. § 78 et seq.; Lockyer v. Savage, 2 Strange, 947, 6 Gray's Cas. 91; Rochford v. Hackman, 9 Hare, 475, 6 Gray's Cas. 108; Nichols v. Eaton, 91 U. S. 716, 6 Gray's Cas. 171; Jackson v. Groat, 7 Cow. (N. Y.) 285; Bull v. Kentucky Nat. Bank, 90 Ky. 452.

156 That is, a man cannot settle his own property on himself, so that, when he becomes bankrupt, or when his creditors otherwise take measures to reach the property, it will pass to another person. On the question whether he can settle property on himself for life, with a provision that his interest shall terminate if he attempts to transfer it, the decisions are not in accord. See Gray, Restraints Alien. Prop. §§ 90-100.

157 Gray, Restraints Alien. Prop. § 134; Wellington v. Janvrin, 60 N. H. 174; Bridge v. Ward, 35 Wis. 687; McCormick Harvesting Mach. Co. v. Gates, 75 Iowa, 343; Todd v. Sawyer, 147 Mass. 570; Hahn v. Hutchinson, 159 Pa. St. 133.

tled rules of the English courts, as well as in opposition to some decisions and dicta in this country," 158 that property may be settled in trust for a person for life, without any power in him to alienate it or anticipate the income, and free from liability for his debts.159 But even in the states where this view obtains, a person cannot settle his own property in trust in his own favor, so that it will be exempt from the claims of his creditors, while he retains the enjoyment of the income.100

The equitable separate estate of a married woman, both in England and in this country, may, by the terms of the settlement upon her, be enjoyed by her, so far as regards the income, without the power of alienating the corpus of the fund, or of anticipating the income, and free from the claims of creditors, this relaxation of the ordinary rule being based on the theory that, since the separate estate is the creature of equity, and otherwise the wife has, apart from modern statutes, no power of alienation, the allowance by equity of a modification of such power is merely a partial return to the common-law view of a married woman.161

158 Brandon v. Robinson, 1 Rose, 197, 6 Gray's Cas, 145; Barton v. Briscoe, Jac. 603, 6 Gray's Cas. 150; Graves v. Dolphin, 1 Sim. 66, 6 Gray's Cas. 152; Tillinghast v. Bradford, 5 R. I. 205, 6 Gray's Cas. 169; Heath v. Bishop, 4 Rich. Eq. (S. C.) 46; Bailie v. McWhorter, 56 Ga. 183; Robertson v. Johnston, 36 Ala. 197.

159 Fisher v. Taylor, 2 Rawle (Pa.) 33, 6 Gray's Cas. 166; Overman's Appeal, 88 Pa. St. 276, 6 Gray's Cas. 180; Nichols v. Eaton, 91 U. S. 716, 6 Gray's Cas. 171; Broadway Nat. Bank v. Adams, 133 Mass. 170, 6 Gray's Cas. 187; Steib v. Whitehead, 111 Ill. 247; Lampert v. Haydel, 96 Mo. 439; Roberts v. Stevens, 84 Me. 325; Leigh v. Harrison, 69 Miss. 923; Smith v. Towers, 69 Md. 77; Weller v. Noffsinger, 57 Neb. 455; Barnes v. Dow, 59 Vt. 530.

160 Pacific Nat. Bank v. Windram, 133 Mass. 175, 6 Gray's Cas. 190; Jackson v. Von Zedlitz, 136 Mass. 342; Mackason's Appeal, 42 Pa. St. 330; Ghormley v. Smith, 139 Pa. St. 584; Warner v. Rice, 66 Md. 436. In many states there is an express statutory provision that any transfer or declaration of a trust for the benefit of the grantor is invalid as against present or future creditors, 1 Stimson's Am. St. Law, 4594.

Estates for years.

A condition or limitation, by which a terin of years is, in favor of the landlord, to terminate upon voluntary or invol untary alienation away from the tenant, is valid;162 but a lessee cannot, on transferring the term, impose any restrictions upon alienation by his transferee, since this would be equivalent to imposing a restriction upon the trausfer of an absolute interest in personalty.168 Furthermore, as in the case of a legal life estate, a provision that the term shall not be transferred, but that, in spite of any such attempt by the tenant or his creditors, it shall still belong to him, is, it seems, invalid.164

Statutory provisions.

In New York, in connection with the restrictions upon the creation of express trusts in land, there are provisions to the effect that no person beneficially interested in a trust for the receipt of the rents and profits of land can transfer his interest, but that the surplus of such rents and profits beyond the sum necessary for the education and support of the beneficiary shall be liable in equity to the claims of creditors. The provisions have been the subject of many decisions, not always of an harmonious character.165 In some other states there are provisions of a more or less similar nature.1 160

101 Jackson v. Hobhouse, 2 Mer. 483, 6 Gray's Cas. 147; Stogdon v. Lee [1891] 1 Q. B. 661; Perry, Trusts, §§ 670, 671; 2 Jarman, Wills, 779; Gray, Restraints Alien. Prop. §§ 270, 271. The restraining clause ceases to have any effect when the coverture ends by the husband's death. Barton v. Briscoe, Jac. 603, 6 Gray's Cas. 150.

102 Roe d. Hunter v. Galliers, 2 Term R. 133, 6 Gray's Cas. 92; Gray, Restraints Alien. Prop. § 46. See ante, § 46.

163 Co. Litt. 223a; Gray, Restraints Alien. Prop. §§ 27, 102. 164 Hobbs v. Smith, 15 Ohio St. 419; Gray, Restraints Alien. Prop. § 278.

165 See Chaplin, Exp. Powers, § 496, 705-710; Gray, Restraints Alien. Prop. Appendix I A.

166 Gray, Restraints Alien. Prop. Appendix I B.