consideration-money belong to or be paid by another, the land purchased will be subject to a trust for the person to whom the money belonged (p). And an agreement for the sale of land, when once concluded, will make the vendor a trustee in equity for the purchaser (q).

Though neither the crown nor a corporation aggregate could be seised (as we have seen) to a use, the case is otherwise with respect to a trust (r); and it may be laid down generally, that every description of person capable of holding land, is capable also of being a trustee. It is also a maxim in equity, that a trust shall never fail on account of the disability of the person appointed to perform it, or even from the omission to appoint any person as trustee. The Court of Chancery will consider the trust, when once substantially constituted, as fixing itself upon the person who, by reason of such disability or omission, may become entitled to the legal estate (s); and will accordingly compel him to its observance.

The estate of the trustee is at law (as distinguished from equity) subject to all the incidents which attend an ordinary ownership of land. It devolves, therefore, when he dies, to his legal representative; and is liable, while he lives, to alienation by himself; but the claim of the representative, and in general also of the alienee, is subject, in contemplation of equity, to the original trust (t). With respect to the latter, however, the same rule is established as formerly with respect to uses, that a person who becomes alienee by purchase, for valuable consideration, and without notice that the trust existed, is not compellable in a court of equity to its observance (u). As his claim is not inferior, in point of natural justice, to that of cestui que trust, equity will not interpose between them; the consequence of which is, that the legal title of the former takes effect for his own benefit, while the latter is left to his

(p) 1 Sand. Us. 212, 2nd ed.

(9) Sugd. Vend. 154, 5th ed.

(r) Sand. Us. 227.

(s) Ibid. 226.

(t) 1 Sand. Us. 227; Gilb. Sugd.

13, n. (5).

(u) 1 Sand. Us. 228.

remedy against the alienor personally, for his breach of trust. On the other hand, where the legal estate still remains in the trustee or his heir, but the purposes of the trust are satisfied, he is always compellable to divest himself of it in favour of the person beneficially entitled, by executing a proper conveyance. And it is provided by the "Trustee Act, 1850 "(v), that if he should refuse or neglect to do so when required (x), or if he should be an infant (y), or out of the jurisdiction, or cannot be found (z), or if it should be uncertain (where there are several trustees) which was the survivor (a); or uncertain whether the trustee last known to have been seised is living or dead, or, if dead, uncertain who is his heir or devisee (b); or if a person seised of land in trust dies intestate as to such land and without an heir(c), -in all these cases, the Court of Chancery shall have power either to make an order vesting the estate in such person or persons, in such manner and for such estate, as the court shall direct; or may appoint some person to make the conveyance in lieu of the trustee or his heir(d).

Moreover, at law, the estate of the trustee is liable to be taken in execution for his debts (e); and his wife is entitled to dower (ƒ), and the husband of a female trustee to curtesy (g). Upon these points it will be recollected that the position of the feoffee to uses, before the statute of Henry VIII., was the same; while, on the other hand, cestui que use remained without protection from the effect of these claims. But herein the modern trust differs re

(v) 13 & 14 Vict. c. 60. The provisions of this act are extended and amended in some particulars by 15 & 16 Vict. c. 55.

(x) 15 & 16 Vict. c. 55, s. 2.
(y) 13 & 14 Vict. c. 60, ss. 7, 8.
(z) Sects. 9, 10.

(a) Sect. 13.

(b) Sects. 14, 15.

(c) Sect. 15.

(d) Sect. 20. See also 13 & 14 Vict. c. 60, s. 16, and 15 & 16 Vict.

c. 55, s. 2, containing like provisions, where lands are subject to a contingent right in trust; and 13 & 14 Vict. c. 60, ss. 3, 4, in reference to the case of a lunatic trustee.

(e) 1 Sand. Us. 230, 231; 1 P. Wms. 278.

(f) 2 Ves. sen. 634. As to dower, vide sup. p. 272.

(g) 7 Vin. Ab. 159. As to curtesy, vide sup. p. 269.

markably from the use; for equity will now interfere in each of these cases, on behalf of cestui que trust, and give him relief against the party who sets up any title of this description to the legal estate. Formerly, also, the incidents of forfeiture and escheat applied (generally speaking) to the estate of the trustee (h). But by the same “Trustee Act, 1850," (ss. 46, 47,) no land, stock, or chose in action, held in trust or by way of mortgage, shall escheat or be forfeited by reason of the attainder or conviction of a trustee or mortgagee for any offence,-except so far as relates to any beneficial interest of such trustee or mortgagee therein (i).

Such are the points that most deserve attention in regard to the estate of the trustee (j). If we turn now to the other party or cestui que trust, we may remark in the first place, that every person is competent to stand in that capacity, unless labouring under such disability as would disqualify him from becoming the tenant of land. As to the nature of his interest, it is not the subject of protection, or even of notice (generally speaking), in the courts of law, but subsists in equity only (k); and there it may be of various kinds or degrees, according to the particular character of the trust created. It is in some instances a mere charge on the land; the ownership being vested in another person as where a man by his will devises land to one, and directs that it shall be charged with the payment of the legacy to another. In other instances it amounts, in contemplation of equity, to the actual ownership and this estate or interest is modelled, in general, upon the rules of the common law with respect to legal estates. For in this and in other particulars, the principle (h) 1 Sand. Us. 230. held in trust, are repealed.

(i) And see 15 & 16 Vict. c. 55, s. 8, authorizing the appointment of a new trustee in the place of a convict trustee. By 13 & 14 Vict. c. 60, the previous provisions contained in 4 & 5 Will. 4, c. 23, relative to the escheat and forfeiture of property

(j) See the collection of legislative enactments relating to trustees and executors, post, vol. II. p. 219; vol. iv. p. 41.

(k) See Britten v. Britten, 4 Tyrw. 473; Roe v. Read, 8 T. R. 118.

professed by the courts of equity is, that æquitas sequitur legem (k). Thus there may be an equitable estate for life or years, or in fee or tail; and in the latter case, the method of barring the entail will be the same as if the estate were legal. So an equitable interest may be either in possession or expectancy, as in the case of a legal estate. But where it is in the nature of contingent remainder, it has never been held subject to the common law rule, now abolished, of being defeated by the determination of the particular estate before the contingency happens (7). The doctrine of "merger" also seems to apply to equitable as well as legal estates, providing the coalescing estates be both of the equitable description, and the merger would not be productive of any injustice or inconvenience (m). So the same rules of construction will in general apply to equitable as to legal estates; and particularly the important rule in Shelley's case (n). A trust of inheritance is also subject to the curtesy of the husband of cestui que trust, as if it were an estate at law (o); and in this respect it is placed on a more satisfactory footing than a use, which was exempt, as we have seen, from curtesy (p). It followed, indeed, till lately, the nature of a use, in being exempt from dower: a circumstance resulting rather from the cautious adherence to some hasty proceedings, than to any well-grounded principle (q); but by 3 & 4 Will. IV. c. 105, s. 2, the widow may now in equity claim dower out of any estate of inheritance in possession (other than in joint-tenancy), to which the husband was entitled beneficially, and in which she is not dowable at law; and this, whether the estate of the husband was wholly equitable,

or partly legal and partly equitable. Again, a trust estate, though formerly protected like a use from execution for debt, is now (with more regard to justice) made subject to such process. For, by the Statute of Frauds (r), and by the late act of 1 & 2 Vict. 110, (s. 11,) a judgment creditor is entitled to sue out a writ of elegit against the lands and tenements of which any person is seised or possessed in trust for the judgment debtor, as well as those of which such debtor himself is seised or possessed. And so, by the statute last mentioned, (s. 18,) a judgment or rule of the superior courts at Westminster and orders and decrees in equity, (whereby any money, costs, charges or expenses shall be payable to any person,) shall operate as a charge upon all lands, tenements or hereditaments, in which the judgment debtor, or party against whom the rule order or decree is sought to be enforced, has any estate or interest whatever, whether at law or in equity (s).

But though, in general, a trust follows the nature of a common law estate, yet on the other hand it may be limited, like a use, in forms that the common law will not allow. It is also exempt in its nature from the common law restrictions with respect to the manner of conveyance; for it has always been capable of being created or assigned, (even for an estate of freehold duration,) by deed without livery, or by last will and testament. It might originally, indeed, have been established upon mere parol evidence. But now, by the Statute of Frauds (t), all trusts and confidences of lands, except such as arise by implication of law, must be manifested and proved by some writing signed by the party, or by his written will (u). And the Act makes the like ceremony essential to the validity of any grant or assignment of this species of interest. A trust is also

(r) 29 Car. 2, c. 3, s. 10.

(s) As to such judgment being required to be registered to bind the land, vide sup. p. 257, n. (r). (t) 29 Car. 2, c. 3, s. 9.

(u) As to the effect of the provi

sions of the statute of frauds with respect to trust estates, see 2 Saund. by Wms. 11 a, n. (m); Harris v. Pugh, 4 Bing. 335; Harris v. Booker, ibid. 96; Scott v. Scholey, 8 East, 467.