Trust estates have, generally, the same incidents and properties attached to them in Equity, as belong to similar estates at law. They are alienable, descendible, and devisable, and sub'ject to disposition, by operation of law, as other property."

law. Personal property, though once held incapable at common law, of partial or shifting limitations, has long, by a somewhat forced, though ingenious rule of construction, been released from that restriction; and therefore, in the settlement of chattels real, of which the title is distinct, from the possession, the creation of a distinct, equitable title, is not more often resorted to, than in the settlement of real property, of free-hold tenure. But it is in regard to that sort of personal property, the title to which, or rather, the power of conferring a title to which, is annexed to the possession, either from the nature of the thing itself, as in the case of money, or for reasons of public convenience, as in the case of bills of exchange, and in regard also, to stock in the funds, (a class of property over which the holder, whether it be in trust or not, has generally, an absolute power of alienation,) that the utility of trusts is more particularly conspicuous. Whenever it is sought to create, in any such property, shifting or partial interests, nothing can secure future or contingent rights, from the dishonesty of the tenant for life, or partial owner, but the intervention of trustees, in whose hands the whole legal interest, that is to say, the whole power of alienation, resides, and though a similar danger is sometimes to be apprehended, even at their hands, yet their number itself, and the discretion that may be exercised in their appointment, afford a greater security than is to be found in the integrity of a single individual;" Brande's Encyclopedia, Article Trusts.

1 3 Desau. 261; 3rd Hay, 68, 1 Dev. & Batt, 210; 2 Black., 198; 2 Harr., 225. Equity subjects trusts to the same construction, that a Court of Law does legal estates; and a donee must have capacity to take, whether it is attempted to convey the title directly to the party himself, or to another, in trust for him; 6th Porter., 269.

2 In England, trust estates do not escheat for felony, or want of heirs. Where a trust estate fails ob defectum sanguinis, a peculiar construction prevails. As the lord has no title, by escheat or otherwise, to the estate, the Court of Chancery will not compel the trustee to relinquish it to him, and consequently the trustee having the legal title, and not being any longer bound by a trust, may have the actual enjoyment of the property, for his own benefit. But a trust for an alien enures to the crown, and in this country, to the commonwealth. Thus, it has been held, in New York, that where an alien purchases real estate in fraud of the law of escheat, and takes a conveyance in the name of a third person, either upon an express and declared, or a secret trust, to permit

Thus, they will pass by a general assignment in bankruptcy, or insolvency, although the purposes of the trust may, in this way, be defeated; for it is contrary to the policy of the law, to permit the enjoyment of property, apart from the burthens to which it is incident. The most remarkable deviation in executed trusts, from the rules in relation to legal estates, is that a man may be tenant by the curtesy in the trust estate of his wife, but a woman is not entitled to dower in the trust estate of her husband. There is no foundation in principle, for this anomalous distinction, and it would have been long since overruled, but for the great number of titles, which had been acquired under the impression that dower would not attach to a trust estate.

That the rules of property may be the same, as far as possible, in Equity, as at law, the analogy of legal estates is followed, even as to the remedies for the protection or extinguishment of the rights and interests of the cestui que trust. Thus an adverse claim, to a trust estate, accompanied by possession, for twenty years, may bar the cestui que trust.

3. What is essential to the creation of a trust?

A trust must be so certain and definite, as to its objects and the persons who are to take, as to admit of being enforced in a Court of Equity, or it will fail, and the property fall into the general funds of the grantor. Thus, the bequest of the residue of an estate to executors, "to dispose of, at such times, and in such manner, and for such uses and purposes, as they shall think fit, it being my will that the distribution thereof, should be left to their discretion," was held to be void, and the next of kin took the estate. But it is not necessary that a trustee, should be appointed by the grantor. Whenever a trust exists, Courts of Equity will not permit it to fail for the want of a trustee, whether that want arises from no person having been appointed to execute it, or from the death or refusal to act, of the party originally designated, or from any other cause; but will follow the legal estate,

the alien to receive the rents and profits thereof, the interest in such trust, belongs to the State, and may be enforced in its favor and for its benefit in a Court of Equity; 5 Paige, 114. The whole doctrine is discussed with great learning, in 3rd Leigh, 492, and the Court affirms the same principle.

and decree the person in whom it is vested, unless he is entitled to equitable protection, to execute the trust. Where a trust has been created, by a last will and testament, and no trustee appointed, the personal representative is deemed the trustee as to personal estate, and the heir, as to the real estate.

4. What are the powers of trustees over trust property?

The duties and powers, and responsibilities of trustees, will be considered in a future part of the volume. It is only necessary to say, in this connection, that the trustee is clothed with the legal estate, not for his own benefit, but for that of his cestui que trust, and except by a sale to a a bona fide purchaser, for a valuable consideration, without notice, cannot prejudice the interests of his beneficiary. It is not subject to dower, or curtesy, or to the specialty or judgment debts of the trustee, and in the event of death, does not devolve upon his heirs or representatives. A trustee has, in general, no right to change the nature of the estate, by converting land into money, or, vice versa ;

1 The various American cases, on the subject of trusts, are cited throughout the volume, under the titles which they illustrate. But the following decisions, establishing distinct general propositions, would seem to me, most appropriately grouped in this place.

1. A secret trust will not be recognised. In order to entitle it to the protection of the Court, it must be disclosed; 1 Johns. Ch. Rep., 524.

2. Any legal trust is sufficient to sustain a conveyance to the trustee, of an estate commensurate with such trust, without reference to any illegal trusts, which the testator or grantor may have attempted to create in the same estate. If the legal trusts, can be separated from those which are illegal, they will be sustained; 8th Paige, 104.

3. In a suit against a trustee, in relation to the trust estate, demanding what he might rightly hesitate to grant, except under the protection of the Court, Equity will not charge him with costs; 12th Ohio, 287.

4. A state may be a trustee in Equity; and can do no act to prejudice the cestui que trust, either by transcending the powers of the trust, or failing to perform what the office of trustee requires to be performed, to insure the proper execution of the trust; 1 Yerger, 296.

5. When a corporation aggregate is formed, and the management and control of its officers are in the hands of directors, the latter became the agents and trustees of the corporators, and a relation is created between the stock-holders and those directors, who, as trustees, become accountable for dereliction of duty, and violation of trust; 1 Edwards, 4.

but, it may be done, where the cestui que trust is not of age, or sui juris, and his interests require it.

6. A person, for whose benefit a trust is created, who is to be the ultimate receiver of money, may sustain a suit in Equity, to have it paid directly to himself; 7 Cranch, 69, 97.

CHAPTER XXV.

MARRIAGE SETTLEMENTS.

1. IN WHOSE FAVOR WILL THE SPECIFIC EXECUTION OF MARRIAGE ARTICLES BE DECREED.

2. PERSONAL CHATTELS MAY BE LIMITED IN EQUITY, AS WELL AS REAL

ESTATES OF INHERITANCE.

3. THE OFFICE OF TRUSTEES TO PRESERVE CONTINGENT REMAINDERS, THEIR POWERS AND DUTIES.

1. In favor of what persons, will the specific execution of marriage articles be decreed?1

1 The obvious purposes to be effected, by deeds of marriage settlement, are, to make provision for the husband and wife, and the issue of their marriage. The rights which the law would otherwise attach to the marital relation, may be thus varied and controlled, and a safe-guard erected against the consequences of misfortune, or improvidence. The most common mode in which these settlements are executed, is, either to vest a portion of the property in trustees, for the sole and separate use of the wife, independent of the control of the husband; or, to vest the property of both parties, in trustees, for the benefit of the husband, durin their joint lives, then, for the benefit of the survivor, and after his or her death, for the benefit of the children, in such proportions, as the nature of the property, or the circumstances of the family may dictate. In most of the states, they are not valid against creditors or purchasers, unless recorded within a fixed period.

1. As to the consideration which is necessary to support a marriage

settlement.