require a fee; and so they will enlarge the estate if no words of inheritance are used in a deed. In examining the cases, however, where a trust ceases upon the death of a tenant for life, or upon the death of a person for whom the property was held in trust, care must be taken that this principle is not confounded with another. Thus, where an estate is given to trustees and their heirs in trust to pay the income to A. during her life, and at her decease to hold the same for the use of her children or her heirs, or for the use of other persons named, the trust ceases upon the death of A. for the reason that it remains no longer an active trust; the statute of uses immediately executes the use in those who are limited to take it after the death of A., and the trustees cease to have anything in the estate, not because the court has abridged their estate to the extent of the trust, but because, having the fee or legal estate, the statute of uses has executed it in the cestui que trust. But where the operation of the statute of uses does not put an end to the trust, and where it is necessary to enlarge an estate although there are no words of inheritance, courts have been obliged to resort to different expedients to avoid the technical rules of law upon the subject of inheri

1 Neilson v. Lagow, 12 How. 110; North v. Philbrook, 34 Me. 537; Rutledge v. Smith, 1 Busb. Eq. 283; Cleveland v. Hallett, 6 Cush. 406. See to the contrary, Miles v. Fisher, 10 Ohio, 1.

2 Parker v. Converse, 5 Gray, 336; Greenwood v. Coleman, 34 Ala. 150; Churchill v. Corker, 25 Ga. 479. See Vallette v. Bennett, 69 Ill. 336. And whenever the active duties required of the trustee have been performed and the purpose of the trust ceases, having no longer any proper object to serve, the legal estate is executed in the cestui que trust, without further action by the court or the trustee. Stoke's App. 80 Pa. St. 337; Dodson v. Ball, 60 Pa. St. 492; Meacham v. Steele, 93 Ill. 135; Wells v. McCall, 64 Pa. St. 207; Yarnell's App. 70 Pa. St. 335. And this is always so when an estate of inheritance or an absolute estate is put in trust for coverture. Megargee v. Naglee, 64 Pa. St. 216; Lynch v. Swayne, 83 Ill. 336. If the trust property is to be sold and proceeds distributed to the beneficiaries, there is still an active trust, and the estate is not executed in the cestui. Kirkland v. Cox, 94 Ill. 402; Read v. Power, 12 R. I. 16.

tances.1 In those States where no technical or other words are necessary to convey a fee no difficulties arise.

1 Williams v. First Presby. Soc. 1 Ohio St. 498; Rutledge v. Smith, 1 Busb. Eq. 283; Co. Litt. 385, 386; 1 Prest. Touchstone, 182; Rawle on Covenants, 344; Shaw v. Galbraith, 7 Pa. St. 112.

CHAPTER XI.

PROPERTIES AND INCIDENTS OF THE LEGAL ESTATE IN THE HANDS OF TRUSTEES.

§ 321. Common-law properties attach to estates in trustees.

§ 322. Dower and curtesy in trust estates.

§§ 323, 324. Dower and curtesy in equitable estates of cestui que trust.

§ 325. Forfeiture and escheat of trust estates.

§ 326. Trustees must perform duties of legal owners.

§ 327. Forfeiture and escheat of the equitable estates of cestui que trust.

§ 328. Suits concerning legal title must be in name of trustee.

§ 329. Who has possession and control of trust estates.

§§ 330, 331. Who has possession of personal estate. Rights and privileges of trustees.

§ 332. Who proves debt against bankrupt.

§ 333. Who has the right of voting.

§ 334. Trustee may sell the legal estate.

§ 335. May devise the legal estate.

§ 336. By what words in a devise the trust estate passes.

§ 337. Where a trust estate passes by a devise, and where not.

§ 338. The interest of a mortgagee in fee.

$339. Propriety of devising a trust estate.

§ 340. Whether a devisee can execute the trust.

§ 341. Rule in New York, &c.

§ 342. Where a testator has contracted to sell an estate.

§§ 343, 344. Rights of the last surviving trustee, and his heirs or executors.

§ 345. Trust property does not pass to bankrupt trustee's assignee.

§ 346. A disseizor of a trust estate is not bound by the trust.

§§ 347, 348. Merger of the equitable and legal titles.

§§ 349, 350. Presumption of a conveyance or surrender by trustee to cestui que trust.

§§ 351-353. Where the presumption will be made, and where not.

§ 354. Must be some evidence on which to found the presumption. §355. Is made in favor of an equitable title, not against it.

§ 321. As a general rule, the legal estate in the hands of a trustee has at common law precisely the same properties, characteristics, and incidents, as if the trustee were the absolute beneficial owner. The legal title vests in him, together with all the appurtenances and all the covenants that run with the land. The trustee may sell and devise it, or mort

1 Devin v. Henderchott, 32 Io. 192.

gage it, or it may be taken on execution. It may be forfeited, and it will escheat on failure of heirs, and so it will descend to heirs on the death of the trustee. All these properties and incidents attach to the legal estate at common law, whether in the hands of a trustee or of an absolute owner; but these incidents do not generally interfere with the proper execution of the trust, for all conveyances and all incumbrances made or imposed upon the estate by the trustee, for other purposes than those of the trust, or in breach of the trust, are utterly disregarded by a court of equity, whatever may be the effect of such conveyances or incumbrances in a court of common law. And as the trustee may in a court of law, as a general rule, deal with the legal estate in his hands, as if he was the absolute owner, so the cestui que trust in a court of equity may deal with the equitable estate in him he is the beneficial and substantial owner, and in the absence of any disability, — that is, if he is sui juris, — he may sell and dispose of it; and any legal conveyance of it will have in equity the same operation upon the equitable estate as a similar conveyance of the legal estate would have at law upon the legal estate.2

§ 322. The legal estate in the hands of a trustee was subject at common law to dower and curtesy ; but, as those who take in dower or curtesy take by operation of law, they are subject to the same equities as the original trustee; therefore, if the widow of a trustee should take dower in a trust estate, she would take her dower subject to the same trusts that the estate was under in the hands of her husband. It

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

2 Matthews v. Wardel, 10 G. & J. 443; Burgess v. Wheate, 1 Eden, 226; Croxall v. Sherard, 5 Wall. 268; Reid v. Gordon, 35 Md. 184; Boteler v. Attington, 1 Bro. Ch. 72; Campbell v. Prestons, 22 Gratt. 396.

3 Bennett v. Davis, 2 P. Wms. 319; Noel v. Jevon, Freem. 43; Nash v. Preston, Cro. Car. 190; Casborne v. English, 2 Eq. Ca. Ab. 728; Hinton v. Hinton, 2 Ves. 631; 1 Sugd. V. & P. 358.

would thus be of no benefit to her; and it is now understood, from the equitable rule, that a widow has no dower in the lands held by her husband as trustee, and the same observations apply to the right of curtesy in trust estates.1 If, however, the equitable estate meets the legal estate in the same holder, the equitable merges in the legal estate, and dower and curtesy will attach;2 and so they will attach so far as there is a beneficial interest in the trustee.3

§ 323. While speaking upon this subject, it may be said that, until lately, in England the widow of a cestui que trust had no dower in his equitable estate, or his equitable fee in lands. A widow was not dowable of a use, and lands were frequently conveyed to uses to defeat the right of dower.5 Thus, if a man before marriage conveyed his lands to trustees upon trust for himself and his heirs in fee, or if after marriage he purchased lands, and took the conveyance to a trustee upon a trust for himself and his heirs, his wife had no right of dower. But if lands were settled on trustees upon a trust for a woman and her heirs in fee, her husband was entitled to his curtesy. This anomaly grew up from an

1 Derush v. Brown, 8 Ham. 412; Green v. Green, 1 Ham. 249; Cooper v. Whitney, 3 Hill, 97; Powell v. Monson, &c. 3 Mason, 364; Bartlett v. Gouge, 5 B. Mon. 152; Cowman v. Hall, 3 Gill & J. 398; Robison v. Codman, 1 Sumn. 129; Dean v. Mitchell, 4 J. J. Marsh. 451; Ray v. Pung, 5 B. & Ald. 561; Gomez v. Tradesmen's Bank, 4 Sandf. 102.

2 Hopkinson v. Dumas, 42 N. H. 303.

34 Kent, 43, 46; Prescott v. Walker, 16 N. H. 343.

4 Dixon v. Saville, 1 Bro. Ch. 326; Maybury v. Brien, 15 Pet. 38; D'Arcy v. Blake, 2 Sch. & Lef. 387; 2 Eq. Ca. Ab. 384; 4 Kent, 43; 1 Rop. Hus. & Wife, 354; Banks v. Sutton, 2 P. Wms. 716, was overruled; Park. on Dow. 138. In Pennsylvania, however, a wife can have dower in both legal and equitable estates. Dubs v. Dubs, 31 Pa. St. 154.

5 Wms. Real Prop. 134-136; Perkins, § 349.

6 Co. Litt. 208 a (n. 105).

7 D'Arcy v. Blake, 2 Sch. & Lef. 387; Chaplin v. Chaplin, 3 P. Wms. 234; Attorney-General v. Scott, t. Talb. 139; Watt v. Ball, 1 P. Wms. 108; Sweetapple v. Bindon, 2 Vern. 536; Cunningham v. Moody, 1 Ves. 174; Dodson v. Hay, 3 Bro. Ch. 405.