Resulting Uses 3 & 4 Will. IV. c. 106, § 3.—Construction. 488 wife, of the wife's land, without any sufficient declaration of uses, the use results back to the wife only (a). So no use will result to any person, if it would be inconsistent with an estate actually limited to him, or with the purposes of the deed (b); or when the intent is otherwise plain, that no use should result (c). The old rule, that, where the same use is limited to the owner of the estate which would have resulted to him in case no declaration of that use had been made, the declaration should be void, and that he should take it as a resulting use, has been altered by the recent statute, 3 & 4 William IV. c. 106, § 3; by which it is enacted, that when any land shall have been limited by any assurance executed after the 31st Dec. 1833, to the person or to the heirs of the person who shall thereby have conveyed the land, such person shall be considered to have acquired the same as a purchaser, by virtue of such assurance, and *shall not be considered to be entitled thereto as of his former estate (d). [*489] The same statute enacts, that on a devise to the heir, he shall be considered to have acquired the estate as devisee and not as heir. The ancient rule, that no use should result on a gift in tail or for life or an ordinary lease for years, still prevails; it is the same where the lessee for life or for years grants over his estate; the implied or supposed consideration in all these cases, will, it seems, prevent any presumption of trust or confidence being raised, though no actual consideration for the grant may appear (e). The Courts of Common Law, it is said, in their decisions upon the creation of estates by way of use, show more indulgence to the intention of the parties than they do in regard to the creation of estates by conveyances at common law (ƒ). But uses were not admitted with all the latitude of construction which was adopted before the Statute of Uses (g).. A person might, as we have seen, pass an use for an interest equivalent to a fee simple or fee tail, without words of inheritance; but it was resolved by the judges, that words of inheritance were as necessary to the creation of estates through the medium of uses, as in the creation of estates at common law (h). This may suffice to give a general notion of what an use under the Statute of Uses now is. The particular doctrines relating to uses since they have become legal estates, more properly belongs to that part of our system of jurisprudence which is administered in the Courts of Common Law (i). However, questions as to the Construction of Deeds operating under the Statute of Uses, indeed of every kind of instrument operating by the Common and Statute Law, necessarily very frequently (a) Davis v. Speed, Show. Parl. Ca. 104; 2 Rep. 58; Cruise, i. 374, 375; an equivalent for fines is now substituted as before noticed. (b) Adams v. Savage, 2 Salk. 679; Rowley v. Holland, 2 Eq. Ab. 753. (c) Hummerston's case, Dyer, 16 a. n. 9, and the other cases in Cruise, i. 375. (d) See Cruise, i. 373, 4. (e) Gilbert, Uses, p. 65; Cruise, i. p. 376, den on Powers, p. 9, 5th ed.; Sanders on Uses, 121. 129. (h) Sudg. on Pow. ubi sup. and Gilbert, ubi sup. On this subject generally, see Sanders on Uses, i. p. 121, et seq.; 1 Rep. 27; et v. infra, Construction of Deeds and Wills. (i) As regards Powers; where there has been a mistaken execution of a power, or where the power is coupled with a trust, the Court of Chancery exercises a jurisdiction which will be the subject of distinct consideration hereafter. 489 Construction of Deeds, &c., creating Uses. come for decision before the Court of Chancery. In suits for the specific performance of agreements for the sale and purchase of lands for instance, which will be particularly adverted to hereafter, this must continually be the case; though it is usual for the court, in these instances, if it be desired by any of the parties, to send a case to a court of law (a). Where a question as to the construction of an instrument operating by the common law arises, and there is a legal bar or obstacle, which pre [*490] vents a court of law from entertaining jurisdiction so as to decide the point, the Court of Chancery, on a bill filed for that purpose, will interfere to remove the bar; though it does not by reason of the existence of such bar only, take upon itself the decision of the matter (b). But in many cases the court does itself, at least for some purposes, put a construction on instruments operating by the Common and Statute Law; the rules of construction therefore must be an object of study with the chancery student. In a subsequent Chapter the leading principles on the subject will be laid before him, but it will be convenient that he should first be made acquainted with the general doctrines relating to Modern Trusts, to which those rules also apply. Re-introduction of direct permanent Trusts of Real Estate Modern Trusts. In treating of the subject on which we are about to enter, we shall have to consider the Statute of Uses in another aspect, namely, as introductory of Modern Trusts. That statute, as we have seen, brought the estate to the use, so that after the statute the cestui que use was seised of the estate at law, as before he was entitled to the use in equity. Thus, where an estate was given to A. and his heirs, to the use of, or in trust for, B. and his heirs, the legal estate was eo instanti vested in B.; but as nothing was expressly said as to any ulterior use or trust that might be imposed, this statute, like its fellow of the 27th of the same king (c), failed of its object. For shortly after the Statute of Uses had been passed, this contrivance was resorted to, the estate was given to A. and his heirs to the use of B. and his heirs, to the use of, or in trust for, C. and his heirs. The common law judges, as probably had been anticipated by the contrivers of this mode of limitation, held that there could be no use upon an use, but when the first use was declared, there it must rest upon that estate (d). On this new form of limitation, therefore, it was held, that B.'s estate was executed by the statute, and that D. took nothing (e): so that the *substantial use at which the legislature aimed was left, the unsubstantial use, which as Mr. Hayes observes [*491] cluded uses themselves, so that an use of an use was not within the Act, Read. p. 44, Rowe's edn. (e) Tyrrell's ca. Dyer, 155 a; and see 1 Co. Rep. 136 b, 137; Hopkins v. Hopkins, 1 Atk. 590. 592; Sanders, p. 92, 93. It is remarkable that by the stat. 33 Hen. VIII. c. 20, it is enacted that if any person shall be attainted or convicted of high treason, the king shall have as much benefit and advantage by such attainder, as well of uses, rights, entries and conditions, as of posses Re-introduction of Modern Permanent Trusts. 491 was no use at all, was executed; thus letting in all the legal consequences, as regards dower and the like, upon the estate so executed. But the Court of Chancery held, that though these were not uses which the statute could execute, still they were trusts, which in conscience ought to be performed to this the reason of mankind assented, and it has stood on this foot ever since (a); so that, according to Sir William Blackstone, by this strict construction of the Courts of Law, a statute made upon great deliberation, and introduced in the most solemn manner, has had little other effect than to make a slight alteration in the formal words of a conveyance (b). It seems highly probable that the Statute of Uses did a violence to the feelings of the great body of the community, else it would have been impossible for the Court of Chancery to have re-established, as it did, the entire fabric of its jurisdiction, by re-creating an equitable interest in real estate, distinct from the concurrent legal estate, after the very same exercise of jurisdiction had been solemnly denounced by the legislature and extinguished. Certain it is that the legislature looked on with a calm resignation, whilst all that it had effected towards the extinguishment of trusts, as distinguished from the legal estate, was set at naught, and in great part repealed, in effect, by the decisions of a judicial tribunal. From the time that the Court of Chancery re-established the fiduciary interest in real estate, as distinct from the legal title, three kinds of interest in lands and hereditaments have to be looked to. First, the estate in the land itself, the ancient common law fee. Secondly, the use, which was originally a creature of equity, but to which the Statute of Uses draws the estate in the land, so that they are joined and make one legal estate. Thirdly, the trust which is neither recognized by the common law, nor by the statute, but which carries the beneficial interests and profits in the Court of Chancery, and is a creature [*492] of that court, as the use was before the statute (c), and over which the Court of Chancery has an original, peculiar, and exclusive jurisdiction. sions, reversions, remainders and all other things, as if it had been done and declared by authority of Parliament; now as Sir M. Hale (1 Pl. Cr. 248) has observed, at the time this statute was made, there could be no use but that which is now called a trust, (Cruise, i. 446, 3d edn.,) so that it would rather seem that the re-appearance of uses which the statute would not execute, must have been anticipated at this early period, if indeed the Court of Chancery had not already entertained cognizance of them. (a) Lord Hardw., Hopkins v. Hopkins, 1 Atk. 591. Tothill has this report of a case. "Because one use cannot be raised upon another, yet ordered, and the defendant ordered to pass according to the intent," 285, 9 Car. I. Sanbach v. Dalston. I have, as elsewhere noticed, searched the Registrar's Books for the decree in this case throughout 9 Car. I. without success, so that the date, as is usual in Tothill, is erroneous. But it would appear, from Lord Coke's judgment in Foorde v. Hopkins, 13 Jas. 1. 2 Bulstrode, 337, that the jurisdiction of the Court of Chancery over trusts of this description was recognized at that time. In the case itself it was held, that no action would be against the lord for refusing to admit a copyholder; he must apply to the Court of Chancery. (b) 2 Bla. Comm. 336. This observation is introduced only in reference to the re-introduction of fiduciary uses or trusts; as regards the uses which were executed and made legal estates, the statute, as we have seen, produced very important results. (c) Lord Hardwicke, Willet v. Sandford, 1 Ves. 186; 1 Sug. V. & P. 178, 179, 9th ed. Mr. Hayes looks upon property in land in four aspects;-1st. The primitive common law estate; 2dly. Proper uses; 3dly. Improper uses (ie. mere forms of beneficial interests, but constructively within the statute); and 4thly. Trusts,- that is, beneficial interests neither recognized by the common law nor reached by statute, Hayes' Introd. 57, 58. 492 Purposes to which renewed Trusts were applied. I proceed to consider the general doctrines that were established in regard to interests of the last description, and relating to Trusts generally, including trusts of personal estate. THE GENERAL NATURE AND PROPERTIES OF MODERN TRUSTS OF FREEHOLD, AND TRUSTS OF PERSONAL ESTATE. SECTION I-Introduction. SECTION II.-Trusts created by express Declaration. SECTION III.-Trusts created by Implication or Construction of Law. SECTION IV.-Trusts of Personal Estate. SECTION I.-Introduction. The General purposes to which renewed Trusts were applied-The Rules as to Ancient Uses were generally applied to them-Classes: 1. Express; 2. By Operation of Law—Trusts of Personal Estate to be separately considered. THE system of jurisprudence which is now administered in the Court of Chancery on the subject of Trusts, will be particularly considered in the second volume of this work. I propose here to trace the connection of this jurisdiction with the ancient jurisdiction in regard to uses and trusts, and to notice such of the leading features of this important branch of equitable jurisprudence, as may exhibit a general view of the several kinds of trusts over which the Court of Chancery exercises jurisdiction. Active or Special or temporary trusts of freehold, trusts of personal estate and of copyholds, as has already been mentioned, had continued. to be the subject of the jurisdiction of the Court of Chancery after the passing of the Statute of Uses; the trusts which were introduced subsequently to the passing of that statute, which arose in the manner which has been explained in the last Chapter, corresponded with passive trusts or uses in their fiduciary state (a); in the subsequent pages they will be referred to under the denomination of Passive or Permanent trusts. After the jurisdiction of the court, as regards passive as well as active trusts, was fully established, the machinery of trusts was resorted to for numberless purposes to suit the necessities and conveniences of the owners of property. This mode of disposition was found to be [*494] well adapted to the effectuating family arrangements, particularly in Marriage Settlements, as it afforded the most convenient means of securing provisions for married women and younger children; it was equally well adapted for settling property by Will, when the like purposes had to be accomplished. It was necessary, therefore, that the doctrines on the subject of trusts should be carefully considered, and reduced to a system. (a) See Lord Bacon's Read, p. 8, 9. Renewed Trusts assimilated to Fiduciary Uses. 494 It was natural that the Court of Chancery should have inclined to hold, that the trusts of which it now had jurisdiction, whether by a continuance of the ancient jurisdiction, or acquired in the manner before pointed out, should be governed by the same rules which had of ancient time been established in regard to uses and trusts. We find the great Lord Hardwicke declaring that uses, before the statute, were exactly the same with what trusts (meaning passive trusts) were in his time; "and I wonder," he said, "how they ever came to be distinguished" (a). Afterwards Lord Northington, than whom no one took greater pains to inform himself of the principles on which the jurisdiction which was intrusted to him should be exercised, said, that in essence ancient uses and modern trusts were the same; that there was no difference in the principles and rules applicable to them, though there might be in the extent of the application of those rules. "Geometry," said his Lordship, "was the same in the time of Euclid, as in that of Sir Isaac Newton, though he applied the principles and rules to effect greater discoveries, and more important demonstrations" (b). It is plain, too, from Lord Nottingham's judgment in the case Lord Gray v. Lady Gray (c), that that great judge, under whose masterly hand, as it is said, trusts were put upon their true foundation (d), also considered that, as a general rule, the doctrines as to trusts should follow those which had prevailed as to uses. The same observation may perhaps be applied to trusts by operation of law; though on this head our materials, as regards early times, are scanty, as far as they go they show that the modern doctrines on this subject are analogous to those which prevailed before the Statute of Uses; so were the rules as to the liabilities of trustees, though in each instance they have been expanded into a more complete and perfect system. The trusts, therefore, which we have now to consider under the name of Modern Trusts, may be viewed under two general divisions (e), corresponding with the like divisions which, as it will [*495] have been observed, prevailed in regard to uses and trusts before the Statute of Uses, namely, 1st. Trusts created by the act of some party having the dominion over property, with a view to the creation of a trust. 2d. Trusts created by Operation of law, where the acts of the parties may have had no reference to trust; including Implied trusts and Resulting trusts; and Constructive trusts, which are raised by the Court of Chancery to satisfy the ends of justice without reference to, sometimes in direct contradiction to the intention (f). Trusts of Personal Estate will be separately noticed. (a) Lloyd v. Spillet, 2 Atk. 150. (c) 1 Ch. Ca. 296; Finch, 338; and see Lord Talbot's opinion, Attorney-General v. Scott, Ca. temp. Talb. 138; and 1 Eden, 250. (d) Lord Mansfield, 1 Eden, 223. All this confirms the impression on which I have proceeded in one of the earlier chapters, that a regular system of jurisprudence in regard to uses and trusts, had been estab lished before the Statute of Uses. (e) Throughout this chapter I have, as will be seen by the references, derived the most important assistance from Mr. Lewin's work; and also from that of Mr. Hill (1845). (f) I have here, in a great measure, followed the arrangement of Mr. Justice Story (see § 980. 1195 and 1254); though it is very difficult to adhere to any precise arrangement, or classification on this subject. |