system a vast number of distinctions and subtleties have been established and exploded. It is not necessary to follow them, as many of them never obtained a foothold in America.1

§ 9. Lord Nottingham became chancellor in 1673; consequently, when America was first settled, the doctrine of trusts had not been reduced to a system. Nor was there occasion for many years to apply the doctrine to the affairs of the colonists. Lands were abundant and cheap, and could be had by the taking; personal property had not accumulated; habits of life were simple and industrious; and there was little occasion for family or other settlements that rendered the intervention of a trustee either convenient or necessary. The statute of uses was passed before the colonists left England, and it became a part of the law of many, if not all the colonies. The system of trusts which grew upon the statute of uses was adopted in America much later. Even in England the development of the equitable jurisdiction of chancery met with great opposition, upon the ground, among others, that it subjected the laws of the realm to the arbitrary discretion of one man, or "made the rights of the subject depend upon the length of the chancellor's foot." Considering this opposition to the equity jurisdiction of the Court of Chancery in England, considering that trusts were not established upon a reasonable foundation when the colonists left England, and considering the pecuniary condition of America, it is not surprising that it was long before the system received any countenance here.

§ 10. Mr. Story says that there was no equity jurisdiction in any State prior to the Revolution, or at least a very imperfect and irregular administration of it. There was an attempt to create such a jurisdiction in the province of New

1 See them stated in Lewin on Trusts, pp. 2-17.

21 Story, Eq. Jur. § 56; 1 Dane, Ab. c. 1, art. 7, § 51; 7 Dane, Ab. c. 225, arts. 1, 2; 2 Swift's Dig. 15; 3 Tuck. Black. App. 7.

York in the governor and council; but it was so unpopular1 that it did little or no business. A court was established in Massachusetts in 1692, with full equity powers; but the act failed to receive the approval of the king in council.2 In 1720 a Court of Chancery was established in Pennsylvania, and continued to administer a jurisdiction in equity in a separate court until 1736. And it is probable that some of the principles of equity were administered in the common-law courts of all the colonies, in order to relieve suitors from hardships which the stricter rules of the common law were unable to effect. In New York, New Jersey, Virginia, Pennsylvania, and South Carolina, the governor of the province was clothed with the power and duty of the chancellor.3 Since the Revolution, equity jurisdiction as a system has been of slow growth, and it is only since the beginning of this century that it has received its present development in America. As property has increased, and pecuniary affairs have become complex, and it has become necessary or convenient to make marriage settlements, or settlements upon families, children, relations, or dependants, and upon charities, the English system of trusts, fully grown, has been introduced into most of the States, and they have conferred full equity powers either upon their common-law courts, or they have established separate courts with an equity jurisdiction very similar to the jurisdiction of the Lord Chancellor in the High Court of Chancery in England.4

§ 11. Mr. Story further observes that it is a favorable circumstance that jurisdiction in equity was conferred upon the courts in America at so late a period, and therefore they did not become acquainted with the system until it had been

1 1 John. Ch., Preface.

2 Ancient Char. c. 222; 1 Story, Eq. Jur. § 56.

* See Equity in Pennsylvania, a Lecture by William H. Rawle, Esq., McKay & Brother, Philadelphia, 1869.

* 1 Story, Eq. Jur. § 56, and notes.

settled upon a broad and rational foundation; thus they were

1

saved from crude and unintelligent opinions and judgments, which must have been given in the then condition of the law in England, and of the profession in America. These judgments must of necessity have formed a body of precedents which would have continued to plague the profession and the courts, and would have marred the symmetry of the system. As now established, the doctrine of equity and of trusts in the United States is a well-formed system; and Mr. Story thinks it even more symmetrical than the original system in England.

§ 12. It is not the purpose of this treatise to trace the rise and growth of the law of trusts in each one of the States. It is, on the other hand, its purpose to state the general principles which prevail in all the States. It is not possible to know or to state the legislation of so many States upon the various matters connected with the administration of trusts. The intelligent lawyer must do this for himself, when the questions before him depend upon the statutes of his State rather than upon the general principles common to all the States.2

§ 13. Sir Edward Coke's definition of a use has been adopted as an accurate legal description and definition of a trust. In his words applied to a use, " a trust is a confidence reposed in some other, not issuing out of the land, but as a thing collateral, annexed in privity to the estate of the land, and to the person touching the land, for which cestui que trust has no remedy but by subpoena in chancery." The confidence here

1 1 Story, Eq. Jur. § 58.

2 See 4 Kent, Com. 163, and notes.

See Preface to Campbell and Cambreleng's Amer. Chan. Dig. (1828); 1 Fonb. Eq. 11-20, by Laussat, 1831; 1 Amer. Jurist, 314.

& Co. Litt. 272 b. A trust exists where the legal interest is in one person, and the equitable interest in another. Wallace v. Wainwright, 87 Pa. St. 263.

spoken of need not be expressly reposed by one party in another, for the law frequently implies or construes it to arise out of transactions between parties, when neither party supposed at the time that a trust was created between them. The trust or confidence is a thing distinguished from legal property, or legal right to property. It is neither jus in re nor jus ad rem,1 and so the confidence may not always be reposed by a person other than the trustee, for any person may convert himself into a trustee, and give from his own acts an equitable right to another person, as cestui que trust. But no person can be both trustee and cestui que trust at the same time, for no person can sue a subpoena against himself. Therefore, if an equitable estate and a legal estate meet in the same person, the trust or confidence is extinguished, for the equitable estate merges in the legal estate. As when a father holds the legal title to land in trust for an only child, and the father dies, such legal title descends to the child as only heir, and thus both estates meet in the same person. But both estates must be commensurate with each other, otherwise there can be no merger.3

§ 14. Again, a trust or confidence is something collateral to the land, and not part or parcel of it. Thus a charge, an incumbrance, or a term of years is a legal title in, or issuing out

1 Wainewright v. Elwell, 1 Mad. 336, Bac. Uses, 5.

2 Goodright v. Wells, Doug. 771; Selby v. Alston, 3 Ves. 339; Harwood v. Oglander, 8 Ves. 127; Philips v. Brydges, 3 Ves. 126; Wade v. Paget, 1 Bro. Ch. 363, 1 Cox, 76; Finch's Case, 4 Inst. 85, 3d Res.; Creagh v. Blood, 3 Jo. & La. 133. So where one of the beneficiaries is also trustee, to the extent of such trustee's personal interest. Bolles v. State Trust Co., 27 N. J. Eq. 308.

Philips v. Brydges, 3 Ves. 125; Robinson v. Cuming, T. Talb. 164, 1 Atk. 473; Boteler v. Allington, 1 Bro. Ch. 72; Kendal v. Micfeild, Barn. 47; Buchanan v. Harrison, 1 John. & Hem. 662; Habergham v. Vincent, 2 Ves. Jr. 204; Merest v. James, 6 Mad. 118; Canning v. Hicks, 2 Ch. Ca. 187, 1 Vern. 412; Tabor v. Grover, 2 Vern. 367, 1 Eq. Ca. Ab. 328; Clerkson v. Bowyer, 2 Vern. 66, 193.

of, the land itself, and binds every person, however he may come into possession of the estate. The trust or confidence is an incident to the land, and so far collateral that it does not go inseparably with it. Thus it only charges those who are privy in the estate. If the trustee is disseized, or if he is turned out of the possession by a person holding a paramount title, the disseizor is not bound by the trust or confidence, because there is no privity of estate between a disseizor and disseizee. And so there must be privity between the persons to be bound by the trust; as, if a trustee dies, the legal estate will descend to his heir, who will be bound by the trust, because there is both privity of estate and of person in such a case. And so if the trustee sell the estate to a purchaser with full notice of the trust or confidence, or if he transfer the estate to a volunteer without consideration, the estate and the persons to whom it comes in such manner will be bound by the trust, because there is both privity of estate and of persons. But if the trustee sells the estate to a third person for a valuable consideration, without notice of the trust, neither the estate nor the purchaser for value and without notice will be bound by the trust, for there is in such case no privity between the persons.1

§ 15. All those persons who take under the trustee by operation of law are privies, both in estate and in person, to the trustee. Thus those who take as heirs under the trustee, or as tenants in dower or curtesy, or by extent of an execution,3 or by an assignment in insolvency or bankruptcy, are bound by the trust. It has been thought that a lord, who takes by an escheat or by a title paramount, would not be bound by the trust; but the point has not been adjudged.3

1 Finch's Case, 4 Inst. 85, 1st Res.; Gilbert on Uses, 429.

2 Leake v. Leake, 5 Ir. Eq. 366.

8 Burgess v. Wheate, 1 Eden, 203.