The estate of the trustee is also liable at law, to execution for his debts(s); and his wife is entitled to dower(t), and the husband of a female trustee to curtesy (u). 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. But herein the modern trust differs remarkably from the use; for equity will now interfere in each of these cases, on behalf of cestui que trust(x), and gives him relief against the party who sets up any title of this description, to the legal estate. Until a very recent period, the incidents of forfeiture and escheat also applied (generally speaking) to the estate of the trustee (y). But now by the 4 & 5 Will. IV. c. 23 (z), if a person seised of land in trust, dies without an heir, the Court of Chancery may appoint a person to convey the land in such manner as it may deem expedient, and no land shall escheat or be forfeited by reason of the attainder or conviction of a trustee or mortgagee, for crime.

Such are the points that most deserve attention in regard to the estate of the trustee. 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 (a), but subsists in equity only; 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

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

(t) 2 Ves. sen. 634.
(u) 7 Vin. Ab. 159.
(x) See same authorities.

(y) 1 Sand. Us. 230.

(3) Et vide 1 & 2 Vict. c. 69, as to persons seised of land by way of mortgage, dying without heirs.

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

to one, and directs that it shall be charged with the payment of a 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 professed by the courts of equity is, that æquitas sequitur legem (b). 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 a contingent remainder, it is not subject to the common law rule of being defeated by the determination of the particular estate before the contingency happens (c). The doctrine of merger also seems to apply to equitable as well as legal estates, provided the coalescing estates be both of the equitable description, and the merger would not be productive of any injustice or inconvenience (d). 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(e). 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(ƒ); and in this respect it is placed on a more satisfactory footing than a use, which was exempt, as we have seen, from curtesy. 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 (g);] but by a recent statute (h) the widow may now in equity claim dower

(b) 2 Bl. Com. 330.

(c) 1 Prest. Est. 241; Hopkins v. Hopkins, Cas. temp. Talb. 44; 1 Atk. 590.

(d) Vide Hopkins v. Hopkins, 1 Atk. 592; Phillips v. Phillips, 1 P. Wms. 41'; 3 Prest, Conv. 558.

(e) Bale v. Coleman, 1 P. Wms. 142; Fearne, by Butl. 124, 9th ed. (f) 1 Sand. Us. 205. (g) 2 Bl. Com. 337.

(h) 3 & 4 Will. 4, c. 105, s. 2.

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 (i), and by the recent act of 1 & 2 Vict. c. 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 defendant (k), as well as those of which the defendant himself is seised or possessed. And so, by the same act of Victoria, s. 13, a judgment in any of the superior courts at Westminster shall operate as a charge upon all lands, tenements or hereditaments in which the defendant has any estate or interest whatever, whether at law or in equity (1).

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, all trusts and confidence 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. And the

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

(k) As to the effect of the provisions of the statute of frauds with respect to trust estates, vide 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.

(1) But by sect. 19 it will not affect land as against purchasers, mortgagees, or creditors, until entered with an officer of the Court of Common Pleas; et vide 2 & 3 Vict. c. 11; 3 & 4 Vict. c. 82, s. 2.

act (m) makes the like ceremony essential to the validity of any assignment or transfer of this species of interest. A trust is also exempt from forfeiture(n) (except in the case of treason, where it is expressly made subject by statute to that incident (o)); nor does a trust of inheritance escheat for want of inheritable blood; for the defect of an heir confers no title, in this case, on the lord; it merely enables the trustee to hold the land discharged of the trust (p). In all these incidents the modern trust, it will be observed, follows the principle of the ancient use.

It may be proper before we conclude, to take some notice of the subject of terms held in trust to attend the inheritance. This is a trust frequently created on the purchase of real property. Thus where land held in fee is mortgaged for a long term of years (as a thousand years), and upon the estate being sold, the mortgagee is paid off out of the purchase money, it is usual for the purchaser (instead of taking a surrender of the term to himself and so merging it in the inheritance) to keep it on foot and have it assigned to a trustee of his own nomination, in trust for himself (the purchaser,)" and to attend and protect the inheritance." The reason of this practice is, that the beneficial or equitable interest in a term assigned upon such a trust, follows (though a mere chattel) all the limitations of the inheritance-belongs to the heir or devisee of the new owner, and not to his executor or administratorand is subject to the other incidents of a fee simple (q), so that for all purposes of convenience the case is the same as if it had merged into the inheritance; while on the other hand it affords him a security which he could not

(m) 29 Car. 2, c. 3, s. 9.

(n) 1 Sand. Us. 206; quære as to a trust for term of years? ibid.; Hob. 214; Attorney-General v. Sands, Hard. 490.

(o) 33 Hen. 8, c. 20; 2 Rep. 11 a; Attorney-General v. Crofts, 4 Bro. P. C. 136.

(p) Burgess v. Wheate, 1 Bl. Rep. 123; 1 Eden, 177; Barclay v. Russell, 3 Ves. 430; 2 Bl. Com. 337.

(9) Best v. Stamford, Prec. Ch. 252; 2 Freem. 288, S. C.; Wray v. Williams, 1 P. Wms. 137; 1 Sand. 229; Cooke v. Cooke, 2 Atk. 67.

have had if a merger had actually taken place. For if it should afterwards turn out that prior to the purchase, but posterior to the creation of the term, there had been an intermediate alienation or incumbrance of the fee in favour of another person, to which the then trustee of the outstanding term had been no party, and of which the subsequent purchaser had had no notice when he took his conveyance and paid his purchase money, he will be protected against it, through the medium of the term, which being the elder title, will also take the priority in point of legal effect. Such is a general outline of the doctrine of attendant terms when made so by express declaration of trust; and to this we shall only add that there are cases also in which terms become attendant by the mere construction of a court of equity-as to which it may be stated as a general rule, that where a legal and equitable estate become vested in the same person, the one a term of years and the other an estate of inheritance, though there can be no merger (as that occurs only upon the union of two estates of the same nature, both legal or both equitable) yet by analogy to the common law rule of merger, the term will be considered in equity as attendant, in the absence at least of any sufficient indication that the contrary was designed by the parties (r).

We have now touched the principal points in the law of Uses and Trusts, considered as species of estates; and for the present may dismiss them from our view. With respect to uses, indeed, there is another aspect under which they will very soon require to be again examined, viz. in their important (but incidental) connection with our system of conveyances. But this is a subject which belongs not to to the present chapter. It will find a more proper place when we are engaged in the consideration of Title, or the manner in which estates may be acquired or lost.

(r) Hayter v. Rod, 1 P. Wms. 360; Whitchurch v. Whitchurch, 2 P.

Wms. 236; 3 Swanst. 201; Burt,
Compend, 470.